It was determined that common law native title is inalienable, so that rights and interests under native title cannot be transferred outside of the traditional laws and customs and the title itself can only be surrendered to the Crown. Any other dealings will not be recognised under the laws of Australia and will not be enforceable outside the traditional laws. The basis for this limitation is in the assumption that upon colonisation the new sovereign acquired a radical, or underlying, title to all the land. While this radical title is burdened, or subject to native title, if it is surrendered to the Crown, then the Crown's ownership becomes absolute. This is the foundation of the tenure system under Australian law. Apart from native title, all other rights and interests must be ultimately derived from, or granted by, the Crown.
Keywords: aboriginal law, crown land, doctrine of tenure, native title
Author: Strelein, Lisa