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Brennan On The Doctrine Of Tenures
Justice Brennan noted that the basis of the doctrine of tenure in English law was, in large part, a legal fiction, and referred in particular to the Norman Conquest of England and its aftermath:

"It is not surprising that the fiction that land granted by the Crown had been beneficially owned by the Crown was translated to the colonies and that Crown grants should be seen as the foundation of the doctrine of tenure which is an essential principle of our land law."

"Accepting the doctrine of tenure, it was an essential postulate that the Crown have such title to land as would invest the Sovereign with the character of Paramount Lord in respect of a tenure created by grant ... [This was achieved] by attributing to the Crown a title, adapted from feudal theory, that was called a radical, ultimate of final title..."

"By attributing to the Crown a radical title to all land within a territory over which the Crown has assumed sovereignty, the common law enabled the Crown, in exercise of its sovereign power, to grant an interest in land to be held of the Crown or to acquire land for the Crown's demesne. The notion of radical title enabled the Crown to become Paramount Lord of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown's purposes. But it is not a corollary of the Crown's acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants. If the land were desert and uninhabited, truly a terra nullius, the Crown would take an absolute beneficial title ... to the land for the reason given by Stephen C.J. in Attorney-General (NSW) v. Brown: there would be no other proprietor. But if the land were occupied by the indigenous inhabitants and their rights and interests in the land are recognized by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land. Nor is it necessary to the structure of our legal system to refuse recognition to the rights and interests in land of the indigenous inhabitants. The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant. The English legal system accommodated the recognition of rights and interests derived from occupation of land in a territory over which sovereignty was acquired by conquest without the necessity of a Crown grant."
[(1992) 175 C.L.R. 1 at 46 - 49]

"[I]n my opinion, the common law of Australia rejects the notion that, when the Crown acquired sovereignty over territory which is now part of Australia it thereby acquired the absolute beneficial ownership of the land therein, and accepts that the antecedent rights and interests in land possessed by the indigenous inhabitants of the territory survived the change in sovereignty. Those antecedent rights and interests thus constitute a burden on the radical title of the Crown."

"It must be acknowledged that, to state the common law in this way involves the overruling of cases which have held the contrary. To maintain the authority of those cases would destroy the equality of all Australian citizens before the law. The common law of this country would perpetuate injustice if it were to continue to embrace the enlarged notion of terra nullius and to persist in characterizing the indigenous inhabitants of the Australian colonies as people too low in the scale of social organization to be acknowledged as possessing rights and interests in land. Moreover, to reject the theory that the Crown acquired absolute beneficial ownership of land is to bring the law into conformity with Australian history. The dispossession of the indigenous inhabitants of Australia was not worked by a transfer of beneficial ownership when sovereignty was acquired by the Crown, but by the recurrent exercise of a paramount power to exclude the indigenous inhabitants from their traditional lands as colonial settlement expanded and land was granted to the colonists. Dispossession is attributable not to a failure of native title to survive the acquisition of sovereignty, but to its subsequent extinction by a paramount power."
[(1992) 175 C.L.R. 1 at 57 - 58]
Keywords: Attorney-General (NSW) v Brown, 1847 , Australian Court Case, Brennan, Justice Gerard, Canberra, Common Law, conquest, crown land, crown land, doctrine of tenure, High Court Decision, 03/06/1992, Mabo judgement, sovereignty, terra nullius, 1992

(1992) 175 C.L.R. 1 at 46 - 49, (1992) 175 C.L.R. 1 at 57 - 58.
Author: Nettheim, Garth
Source: Brennan, Justice