Aboriginal Customary Law: A Source of Common Law Title to Land

(Hardback)

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Described as 'ground-breaking' in Kent McNeil's Foreword, this book develops an alternative approach to conventional Aboriginal title doctrine. It explains that aboriginal customary law can be a source of common law title to land in former British colonies, whether they were acquired by settlement or by conquest or cession from another colonising power. The doctrine of Common Law Aboriginal Customary Title provides a coherent approach to the source, content, proof and protection of Aboriginal land rights which overcomes problems arising from the law as currently understood and leads to more just results. The doctrine's applicability in Australia, Canada and South Africa is specifically demonstrated. While the jurisprudential underpinnings for the doctrine are consistent with fundamental common law principles, the author explains that the Australian High Court's decision in Mabo provides a broader basis for the doctrine: a broader basis which is consistent with a re-evaluation of case-law from former British colonies in Africa, as well as from the United States, New Zealand and Canada. In this context, the book proffers a reconceptualisation of the Crown's title to land in former colonies and a reassessment of conventional doctrines, including the doctrine of tenure and the doctrine of continuity. 'With rare exceptions ... the existing literature does not probe as deeply or question fundamental assumptions as thoroughly as Dr Secher does in her research. She goes to the root of the conceptual problems around the legal nature of Indigenous land rights and their vulnerability to extinguishment in the former colonial empire of the Crown. This book is a formidable contribution that I expect will be influential in shifting legal thinking on Indigenous land rights in progressive new directions.' From the Foreword by Professor Kent McNeil (to read the Foreword please click on the 'sample chapter' link).

Reviews

the author has done an impressive job at articulating her thesis in a straightforward yet sophisticated style. Her comprehensive re-evaluation of relevant case law and her analysis of Mabo shows a depth of knowledge which flows through the entire book. Her meticulous research and attention to detail is clearly evident. Reading this book is well worth the effort; the reader will come away with a new perspective on Mabo, and a fresh outlook on the future of Indigenous land rights. I would agree with Kent McNeils description in the foreword that it is a formidable contribution. -- Katie O'Bryan * Alternative Law Journal *

Author Bio

Ulla Secher is a Visiting Fellow with the Faculty of Law at the University of New South Wales, Sydney, Australia. She was admitted as a Barrister of the Supreme Court of Queensland in 1998.