Disinterested truth: legitimation of the doctrine of tenure post-Mabo Hepburn, Samantha 2005, Disinterested truth: legitimation of the doctrine of tenure post-Mabo, Melbourne University law review, vol. 29, no. 1, pp. 1-38. Attached Files Name Description MIMEType Size Downloads hepburn-disinterested-2005.pdf Published version application/pdf 12.02MB 96 Title Disinterested truth: legitimation of the doctrine of tenure post-Mabo Author(s) Hepburn, Samantha orcid.org/0000-0003-3994-4677 Journal name Melbourne University law review Volume number 29 Issue number 1 Start page 1 End page 38 Total pages 38 Publisher Melbourne University Law Review Association Place of publication Melbourne, Vic. Publication date 2005-04 ISSN 0025-8938 1839-3810 Summary This article argues that it is time for the complete abolition of feudal tenure in Australian land law and its replacement with an allodial model better able to promote proprietary independence, equality and cultural neutrality. The article considers the questionable constitutional legitimacy of adopting strict feudal tenets in a territory already inhabited by indigenous occupants. It goes on to examine the various legitimation devices that the courts have utilised to sustain the feudal construct and the effect that Mabo has had upon feudal orthodoxy. In particular, the article outlines why post-Mabo tenure is incapable of embracing a pluralist land system; it is suggested that the Eurocentric character of feudal tenure and the structural impediments associated with the acceptance of a non-Crown title prevent it from ever being able to effectively integrate native title into the structure of property law. In light of this, the article argues that post-Mabo tenure lacks both legal and social legitimacy and the 'disinterested' perpetuation of this system must be brought to an end. The article argues that the time has well and truly come to replace feudal tenure with an allodial model based broadly on the system that has developed in the United States but with particularised adaptations. The removal of the Crown and its associated cultural assumptions from the land framework would, it is argued, allow land interests to develop according to their individual cultural origins. This would create a more responsive and balanced system better equipped to embrace the developments of contemporary common law jurisprudence. Language eng Field of Research 180112 Equity and Trusts Law Socio Economic Objective 970118 Expanding Knowledge in Law and Legal Studies HERDC Research category C1 Refereed article in a scholarly journal ERA Research output type C Journal article Copyright notice ©2005, Melbourne University Law Review Association Free to Read? Yes Persistent URL http://hdl.handle.net/10536/DRO/DU:30002916 Document type: Journal Article Collections: Faculty of Business and Law Law Open Access Collection Related Links Link Description Connect to published version Go to link with your DU access privileges     Unless expressly stated otherwise, the copyright for items in DRO is owned by the author, with all rights reserved. Every reasonable effort has been made to ensure that permission has been obtained for items included in DRO. If you believe that your rights have been infringed by this repository, please contact drosupport@deakin.edu.au. Versions Version Filter Type Thu, 15 Jan 2009, 11:06:33 EST Mon, 08 Jun 2009, 10:10:57 EST Wed, 02 Jun 2010, 14:58:25 EST Mon, 13 Feb 2012, 09:33:20 EST Thu, 16 Feb 2012, 11:27:44 EST Fri, 13 Jun 2014, 22:52:21 EST Wed, 02 Mar 2016, 11:43:32 EST Tue, 06 Sep 2016, 09:02:20 EST Mon, 04 Dec 2017, 13:34:25 EST Fri, 07 Sep 2018, 13:12:27 EST Filtered Full Citation counts:   Cited 0 times in TR Web of Science Cited 0 times in Scopus Search Google Scholar Access Statistics: 1416 Abstract Views, 96 File Downloads  -  Detailed Statistics Created: Mon, 07 Jul 2008, 08:38:04 EST

Every reasonable effort has been made to ensure that permission has been obtained for items included in DRO. If you believe that your rights have been infringed by this repository, please contact drosupport@deakin.edu.au.