The Robustness of Aboriginal Land Tenure Systems: Underlying and Proximate Customary Titles

While Aboriginal 1 1 I do not deal with Torres Strait Islander land relationships in this paper, although the arguments may well apply in that case. I have restricted myself to systems with which I am more familiar
land use patterns may have been fragile in the face of colonisation, and severe limits were consequently placed on Aboriginal people's capacity to physically enact local traditional entitlements on many lands, the basis and key content of traditional title to such lands is not fragile but has generally been maintained with considerable robustness. In this paper I suggest that this robustness arises in a critical sense from the pre-existing and widely continuing dual structure of traditional land tenure, which may be understood as consisting of an underlying title held within the relevant regional jural and cultural system, which underpins proximate entitlements enjoyed by small groups of individuals. There is scope within Australia's Native Title Act (1993) for the recognition of this system of customary law under the western legal concept of native title.