Australian land law can now only be viewed through the prism of Mabo’s reframing of the history of land law to include First Nations’ law within its purview and to bring it and the colonising land law into relation with each other. Thus Mabo (and Wik) provide the framework for this chapter. The arrival of a foreign, colonising power in 1788 disrupted the complex systems of First Nations’ land law that had covered the Australian continent for millenia. The baggage of English land law including the feudal doctrines of tenure and estates became the law of the land and operated to dispossess but could not destroy First Nations’ land law and relationships. By the mid nineteenth-century, unique and significant departures from English land law and feudal doctrines emerged, reflecting the particular social, economic and geographical environment of the colonies: for example, the creation of pastoral leases, development of Crown reserves, the regulation of mining by way of leases and licences distinct from the common law and the creation of the unique title by registration scheme by Robert Torrens. Mabo’s reassessment of this “peculiarly Australian land law freed the law of some of its common law feudal origins, particularly by redefining the nature of Crown title. Paradoxically it also reinstated the prominence of the doctrines of tenure and estates as the land law’s “skeleton of principle” which remains the major impediment to a truly Australian land law.

The radical or underlying title of the Crown to all lands in the kingdom is a feature of English common law derived from Anglo-Norman feudal doctrines. When British sovereignty was proclaimed over new plantations or colonies, following the reasoning of William Blackstone, English law was part and parcel of the birthright of British subjects (whether English, Welsh, Scottish or Irish) who settled in ‘uncultivated’ distant lands. Crown title, though, is now said by the Supreme Court of Canada “to be burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival.” [Tsilhqot’in Nation 2014) Development of what is called the ‘common law doctrine of aboriginal title’ – though not derived from English common law – is a feature of case precedents in Canada, Australia and New Zealand in recent decades. Courts in these jurisdictions have consistently relied on proclamations of British sovereignty as the origin point for the radical title of the Crown, and the Crown’s right to extinguish native title. The comparative aspect of the paper investigates divergent judicial responses to the status and relevance of pre-existing indigenous norms and values. These range from terra nullius outright rejection of their relevance, to limited acceptance of usufructuary and possessory rights, to a broader acceptance that native title must be understood in the light of indigenous understandings.