Document Type

Book Chapter

Publication Date


Source Publication

Common Law Aboriginal Title (Oxford: Clarendon Press, 1989), pp. 79-107


A fundamental principle of the common law, stemming from the doctrine of tenures, provides that the Crown has the underlying or radical title to all land within its common law dominions. Private persons and corporations do not “own” land; instead, they hold estates in land that are presumed to be derived from Crown grants. This common law edifice is built on the legal fiction that the Crown once possessed and therefore owned all the lands in England. As this is known to be a fiction, all it does is give the Crown its underlying title and thus a right to acquire land by what is called escheat when a fee simple estate come to an end. The Crown cannot rely on its underlying title to acquire land from persons in possession because that title does not give the Crown any present right to possession. As a result, if the Crown claims title to land possessed by others, it has to prove a better title in itself just like anyone else. In Common Law Aboriginal Title, the author argues that these principles would have applied when the common law was received in the Crown’s overseas dominions. As a result, although the doctrine of tenures would have given it the underlying title, the Crown could not rely on that doctrine to claim lands possessed by Indigenous peoples. This was affirmed by the High Court of Australia in Mabo v. Queensland [No. 2], (1992) 125 C.L.R. 1, decided three years after Common Law Aboriginal Title was published.