Native Title & Foundations of

Land Title in Australia

Kate Galloway 2016

Evolution of native title:

according to Anglo-Australian

law

sovereigntyReception

of lawDoctrine of tenure

MaboNative

Title Act

Terra nulliusDesert &

uncultivatedLand rights

Contrast Aboriginal and Torres

Strait Islander Australians’

perspective

Never ceded sovereignty, never

ceded land, law continues…

SOVEREIGNTY

A claim at international law

Sovereignty

Power to govern a territory

Ownership of land

How to become sovereign:

18th-19th C international law

conquest

cession

settlement

annexation

Through European eyes: inhabited

country…

Image K Galloway

“Uninhabited” country terra nullius

Image K Galloway

Deeming Australia terra nullius =

settlement = sovereignty

WHAT PROPERTY LAW

APPLIED?

Having shown that England could claim Australia at international

law…

The collision of two systems of

landholding

Customary ownership (existing)

Feudal doctrine of tenure (imported English law)

“Uninhabited” country desert &

uncultivated ~ terra nullius…

English law reflected

international law

Image K Galloway

What property law applied?

Mode of acquisition of

land

Law that applied

Conquered Native law, subject to any changes by

conqueror

Ceded Native law, subject to any changes by

sovereign

Desert & uncultivated Settled English law subject to any needs particular

to the colony itself…

English property law: the doctrine

of tenure (in a nutshell)

King

lords

tenants

Literally owns all the

land: ‘lord paramount’

The only possibility

to hold land is via

crown grant

IF:

1. Doctrine of tenure applies

2. King literally owns all the land

3. The only type of possible title is via a

grant from the king,

Then…

As a question of logic, can this system of

land title possibly recognise pre-existing

land ownership?

Customary tenures locked out of

Anglo-Australian land law

Crown land (not yet granted)

Freehold land

(granted by crown)

Customary tenures

MABO V QLD (NO 2)

The seismic shift

Eddie Mabo: I know who owns my

land, and it’s not you…*

Edward Koiki Mabo (1936–1992) Original hand-drawn map … 1981–1992 ink & coloured felt-tip pen

on paper 32.5 x 20.4cm | Manuscript Collection, MS 9518 | National Library of Australia |

http://nationaltreasures.nla.gov.au/index/Treasures/item/nla.ms-ms9518-1-1x-s1

*Not a quote

Entire govt(& court!)

invalidated

Overturn sovereignty

Overturn terra nullius

‘skeleton’ of land law broken

No basis for English legal

system

Reject ‘settlement’ as a myth

Two problems (for the law)

Solving the problem

Confirm sovereignty

International law ‘terra nullius’ still

applies

Update common law

Aust was ‘settled but occupied’

Split crown rights: sovereignty not

ownership

Australian doctrine of tenure: supports

native title

Making space for native title

Radical title

• Belongs to crown

• Includes power to grant land

Full beneficial title

• Belongs to traditional owners

• Can be extinguished

Once native title extinguished…

Crown has full title

Connection with land

Not extinguished

Native title

Grant of fee simple (invokes doctrine of tenure)

Native title extinguished

Mabo

Native Title Act

NTA amendments

YortaYorta

etc

Challenging native title Decision

Constitutional? WA v Cth

Can states overrule native title? WA v Cth

Implied extinguishment? WA v Cth

Crown sovereignty vs title? Fejo

Pastoral lease grant change

underlying title?

Wik

Connection extinguishment Yorta Yorta

http://www.nntt.gov.au/Maps/RNTC_map.jpg

http://www.nntt.gov.au/Maps/Determinations_map.jpg

Revise concepts

sovereigntyReception

of lawDoctrine of tenure

MaboNative

Title Act

Terra nulliusDesert &

uncultivatedLand rights

One last reflection…

"If we could move away as a nation from

treating Aboriginal people as the final hurdle

in a development consent process, to

placing them up front, then I think we might

get somewhere in northern Australia.”

Northern Land Council Chief Executive, Joe Morrison, on

the Ord Valley sugar industry development

http://www.abc.net.au/news/2016-01-29/stall-over-development-of-

sugar-industry-in-ord-valley/7124630