Melbourne Law School - Theses
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ItemRejecting the feudal doctrine of tenure within a pluralist land culture : toward an allodial land model( 2005)This thesis argues that the feudal doctrine of tenure, as it exists in the Commonwealth jurisdictions of Australia, Canada and New Zealand, should be abolished in favour of an allodial land system. The feudal doctrine of tenure is a derivation of English history which had no relevance to colonial cultures where indigenous existence was an actuality. The tendency of colonial jurists to ignore the existence of indigenous inhabitants resulted in the application of a land system which was wholly inappropriate for the regulation of indigenous and non-indigenous land interests. As the courts increasingly recognise the validity of indigenous title, some of the fundamental problems with feudal tenure have become more apparent. The fact that feudal tenure has been largely utilised as a device for assuming absolute Crown sovereignty over all land, thereby denying the validity of indigenous title, has meant that it has never had a bi-cultural focus. It is argued that an allodial system, based broadly on the tenets of the model introduced during the republican revolution within the United States, but with significant legislative regulation, would provide a much more responsive and culturally neutral system. The removal of the sovereignty discourse from the land framework would allow land interests to develop according to their individual cultural origins. This would create an equitable and balanced land system better equipped to embrace the developments of contemporary common law jurisprudence.