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Introduction to Property Law Notes
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Contents
TOPIC 2 SOME KEY LAND LAW CONCEPTS .............................................................................................. 1
The Definition of ‘Land’ ....................................................................................................................... 1
Meaning: Property Law Act 1958 (Vic) s 18 .................................................................................... 2
Meaning: Transfer of Land Act 1958 (Vic) s4(1) .............................................................................. 2
Doctrine of Tenure .............................................................................................................................. 2
The Historical Roots of the Doctrine of Tenure .............................................................................. 2
The Doctrine of Tenure in Australia ................................................................................................ 4
Acquisition of Sovereignty: ............................................................................................................. 4
Radical title: .................................................................................................................................... 4
Timeline of native title ........................................................................................................................ 5
Milirrpum v Nabalco Pty Ltd, .......................................................................................................... 5
Mabo v Queensland (No. 2) ............................................................................................................ 5
The Doctrine of Estates ....................................................................................................................... 6
Freehold Estates: ............................................................................................................................ 7
Leasehold Estates .......................................................................................................................... 10
Future Interests ............................................................................................................................. 12
Crown Land, General Law Land, and Torrens System Land .............................................................. 14
The Recognition of Native Title ......................................................................................................... 14
Mabo ............................................................................................................................................. 14
The Legislative Definition of Native Title ...................................................................................... 16
Proving Native Title ....................................................................................................................... 17
Losing Native Title ......................................................................................................................... 18
Tutorial Answer #1 ............................................................................................................................ 21
Profit a Prendre ................................................................................................................................. 22
Tutorial # 2 ........................................................................................................................................ 22
TOPIC 2 SOME KEY LAND LAW CONCEPTS
The Definition of ‘Land’ 1) Per common law, “land” the tangible immoveable object comprises:
• The ground/soil (NB Land does not include water and there are special common law and
legislative rules dealing with the banks and beds of naturally occurring bodies of water.)
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• Minerals etc under the ground (NB legislation separates out mineral rights and vests them in
the Crown)
• Buildings etc fixed to the ground (see topic 3 – doctrine of fixtures)
• Airspace above the ground (but only to the height “necessary for the ordinary use and
enjoyment” of the land and its structures – see Baron Bernstein of Leigh v Skyviews &
General Ltd [1977] 2 All ER 902.)
2) The term "land" may also be used to refer to a property interest in the tangible immoveable
object defined above. For example, instead of saying someone is the owner of a fee simple estate in
a parcel of land, we may simply say that someone is the land owner.
Meaning: Property Law Act 1958 (Vic) s 18 “ ‘land’ includes land of any tenure, and mines and minerals whether or not held apart from the
surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any
other way) and other corporeal hereditaments; also a rent and other incorporeal hereditaments,
and an easement, right, privilege, or benefit in, over, or derived from the land and also an undivided
share in land; and mines and minerals include any strata or seam of minerals or substances in or
under any land, and powers of working and getting the same;”
Meaning: Transfer of Land Act 1958 (Vic) s4(1) “ ‘land’ includes any estate or interest in land but does not include—
(a) an interest in land arising under the Mineral Resources (Sustainable Development) Act 1990; or
(b) a carbon sequestration right or soil carbon right granted in relation to Crown land under a Carbon
Sequestration Agreement within the meaning of the Climate Change Act 2010;
Doctrine of Tenure
The doctrine of tenure has its roots in the Norman conquest of England in 1066. Instead of dividing
the conquered territories between his followers, William the Conqueror made grants of land to his
followers in return for the irrecognition of his authority as King (homage) and for the provision of
services rendered to the King (generally of a military nature). The knight’s ‘Tenure’, his use of the
land, was thought of as conditional upon these incidents of ‘homage’ and ‘services’. The concept of
tenure has not remained static but has evolved over time.
• Doctrine of tenure (from Latin tenere, meaning to hold, possess or occupy) it refers to a mode
of holding land whereby one person (the ‘tenant’) holds land from (or ‘of’) another, subject to
the performance of certain obligations.
The Historical Roots of the Doctrine of Tenure
The Statute of Quia Emptores 1290 prevented persons who held a fee simple estate in land from
making further subgrants of a fee simple estate.
William the Conqueror confiscated property of English landowners and then redistributed these
lands. It followed that only the Crown ‘owned’ land absolutely.
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• Tenants in chief’ were tenants who held directly from the Crown.
• ‘Mesne lord’ is someone who stood between the King and the tenant in occupation.
• ‘Tenants in occupation/ demesne’ would be granted land in return for services (‘socage
tenure’).
• This process of creating tenures out of tenanted land was known as ‘subinfeudation’.
• Subinfeudation was eventually abolished, and all free tenures were converted to socage
tenures (i.e. all land was held of the Crown).
The Tenures Abolition Act 1660 abolished most of the services associated with tenure.
(NB Current Victorian equivalent of legislation above is section 18A of the Property Law Act 1958
(Vic))
Tenant in demesne
(only rights of actual occupation)
(mesne lord)
Tenant in chief
Crown G
ran
ts in
tere
sts
in
lan
d
Serv
ices a
re o
wed
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The Doctrine of Tenure in Australia
Attorney General of New South Wales v Brown (1847) 1 Legge 312: the doctrine of tenure applied in
Australia upon the British Crown’s acquisition of sovereignty.
Date of acquisition:
1788 – eastern Australia
1829 – western Australia
1879 – Torres Strait Islands
The doctrine of terra nullius (‘land of no-one’) legitimated the British “settlement” of Australia and
the dispossession of Aboriginal people.
“The acts and events by which that dispossession in legal theory was carried into practical effect
constitute the darkest aspect of the history of this nation”:
• Therefore, in Australia, no person can ‘own’ land. When Australia was settled, the doctrine of
tenure was incorporated into Australian law as part of the received law, subinfeudation was
no longer possible, so there were no overlords; thus the Crown owns all land absolutely. What
we call ‘owners’ hold an interest (‘estate’ in land) of the Crown.
• It can be argued that the Doctrine of Tenure was never really part of Australian law because
there is no evidence of socage tenure (i.e. no services or money owed to ‘hold’ land).
However, the High Court in Mabo said “It is far too late in the day” to overrule this doctrine.
• Native title is an exception; it is an example of allodial (absolute) title, rather than tenurial
title.
Acquisition of Sovereignty: • There are three main ways in which a government can acquire sovereignty over land:
• 1) Conquest (such as the Norman conquest of England in 1066)
• 2) Cession (which is the voluntary surrender of the land by its inhabitants or
• 3) Occupation (or terra nullius, which means the land belonging to no one)
Radical title: • This is the title held by the crown given native title exists. This gave the crown the power to
take the land for its own use or grant property rights to others. It does not give the Crown
the right to possession of land, unless it first exercises its statutory sovereign power to
acquire that land for its own use.
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Timeline of native title
Milirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141 (the "Gove land rights case"), was the first litigation on native title in Australia.
The decision of Justice Richard Blackburn ruled against the claimants on a number of issues of law
and fact, rejecting the doctrine of aboriginal title recognizing that in the law of the time of British
settlement of Australia there was a distinction between settled colonies, where the land, being
“desert and uncultivated”, was claimed by right of occupancy, and conquered or ceded colonies. The
term “desert and uncultivated” included territory in which resided "uncivilized inhabitants in a
primitive state of society". The decision noted that the Crown had the power to extinguish native
title, if it existed.[1]
The plaintiffs claimed that the defendants mining activities were wrongly interfering with there property rights to use
certain land to perform ritual ceremonies. Since the plaintiffs were not entitles to exclude others from the land and could
not sell or give their rights to other, Blackburn J decided that they did not have property rights enforceable against other
members of society. However it is clear that the palintiffs rights related to a thing (the land) with which they were
contingently connected. Although they could not sell there rights to others, they had the power to sever their connection
with the land by moving away. Also, the right to perform ritual ceremonies on the land, like a right of way, can be a
property right so long as it corresponds to a general duty placed on other members of of society not to interfere with the
exercise of that right.. The right to exclude others from the land is not required. If this case was decided post Mabo it
would probably be decided differently.
So Prior to Mabo (No 2): Sovereignty = beneficial ownership of land
Mabo v Queensland (No. 2) (commonly known as Mabo) was a landmark High Court of Australia decision recognising native title
in Australia for the first time. The High Court rejected the doctrine of terra nullius, in favour of the
common law doctrine of Aboriginal title, and overruled Milirrpum v Nabalco Pty Ltd (1971), a
contrary decision of the Supreme Court of the Northern Territory.
“On the foundation of New South Wales … every square inch of territory in the colony became the
property of the Crown [and all] titles, rights and interests whatever in land which existed thereafter
in subjects of the Crown were the direct consequence of some grant from the Crown”: Blackburn J in
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 245 (Gove Island Land Rights Case)
After Mabo (No 2):
sovereignty = ‘radical title’ ≠ beneficial ownership of land
“[I]t 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” (Brennan J quoted in S&N CB p 209)
However,
“If the land were desert and uninhabited, truly a terra nullius, the Crown would take an absolute
beneficial title (an allodial title) to the land” (Brennan J quoted in S&N CB 209 – this bit was obiter)
The decision
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• Rejection of terra nullius: The decision recognised that the indigenous population had a pre-existing system of law, which, along with all rights subsisting thereunder, would remain in force under the new sovereign except where specifically modified or extinguished by legislative or executive action. The Court purported to achieve all this without altering the traditional assumption that the Australian land mass was "settled". Instead, the rules for a "settled" colony were said to be assimilated to the rules for a "conquered" colony.
• Repudiation of absolute beneficial title of all lands: The majority in Mabo also rejected the proposition that immediately upon the acquisition of sovereignty, absolute beneficial ownership of all the lands of the Colony vested in the Crown. The majority rejected the traditional feudal development of the doctrine of tenure as inappropriate for Australia, and rather saw that upon acquisition of sovereignty the Crown acquired not an absolute but a radical title, and that title would be subject to native title rights where those rights had not been validly extinguished. Thus the court accepted that a modified doctrine of tenure operated in Australia, and that the law of tenure (as a product of the common law) could co-exist with the law of native title (as a product of customary laws and traditions), though where there had been a valid grant of fee simple by the Crown the latter title would be extinguished.
• Fragmentation of proprietary interests: Justice Toohey made the argument that common law possessory title could form the basis for native title claims by indigenous Australians. This has not subsequently been pursued.
What is the meaning of ‘radical title’?
▪ It is a public law concept. It is not a proprietary interest in the land
▪ The Crown’s ‘radical title’ can be exercised by granting a proprietary interest in land
to itself or to others
▪
The Doctrine of Estates
The doctrine of tenure was based on the idea of a vassal holding land in return for homage and
service, and the holding of the tenant was called his fee, fief, fiefdom or estate. The term ‘estate’ has
two meanings in property law. In the broad sense of the term it means ‘any property whatever’
(Halsbury’s Laws of England 4th ed vol 39(2) para 2). In the context of the doctrine of estates
however, the term has a narrower meaning. In this sense it is an interest in land, which gives the
holder of the interest a right to possession of the land either immediately or at a time in the future.
Tenure
▪ It tells us how land is held (“of the Crown”)
Estates
▪ An abstract “legal fiction” inserted between the physical land and the feudal tenant.
▪ An “estate” is an interest in land which confers a right to possession of the land either
immediately or at a time in the future and is of a defined duration.
▪ Estate = the right to possess a volume of space for a defined period of time
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Freehold Estates: • estates of uncertain duration
• There are three kinds of freehold estastes, which are classified by their potential duration
▪ Fee Simple
▪ Fee Tail
▪ Life Estate
Fee Simple:
▪ (estate of unlimited duration)
▪ Near absolute ownership
o A right to exclusive possession that may last ‘forever’.
o Greatest interest in land recognised by the common law.
o ‘Fee’ means inheritable and ‘simple’ means not limited to a particular class of heirs (cf.
fee tail).
o Rights: use, alienate and exclude.
o Only when there are no heirs left does the property pass back to the crown; and now
with the right to transfer after death through a will this is highly unlikely. The estate
would escheat only if there were no heirs and no on entitled to receive the estate under
the tenants will.
o Alienation
▪ Can be inter vivos disposition during life, or testamentary disposition by will.
▪ Types of alienation:
1. Absolute (“to X [and his heirs] in fee simple”); or
2. Modified.
Either:
i. Determinable fee simple; or
▪ For example, “To X in fee simple until Blackacre ceases to be used
for residential purposes”.
▪ Interest continues until occurrence (or non-occurrence) of some
specified event which is not bound to happen (that is, the event
must not be bound to occur at some time, for it is an essential
characteristic of a fee simple estate that it may last forever).
▪ If event occurs, fee simple automatically reverts to grantor.
▪ Look for words like: while; as long as; until; or, during.
ii. Conditional fee simple.
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▪ For example, “To X in fee simple, but if Blackacre ceases to be used
for residential purposes, his estate shall thereupon cease.”
▪ Grant subject to a condition subsequent.
▪ If the condition is met, the grantor may re-enter the land. If the right
of re-entry is exercised, X’s fee simple estate will end. This right of
re-entry is alienable.
▪ Look for words like: on condition that; but if; or, if it happens that.
Fee Tail:
▪ (identical to fee simple except with restricted rights of alienation)
▪ Creation of new fee tails has not been possible since 1 January 1886 in Victoria (Property
Law Act 1958, s 249)
▪ Fee tails created prior to that date can be converted to a fee simple (Property Law Act 1958,
ss 250 and 251)
▪ An estate limited to a particular person and their specified descendants.
▪ E.g. “To X and the male heirs of his body”.
▪ Fee tail interest holder could alienate it but only for duration of his/her life (then it had to
pass to descendants).
▪ Can no longer be created in Victoria (PLA, s 249). If you try to create one, it is interpreted
legally as giving rise to a fee simple with no limitations on alienation.
▪
Life Estate:
(estate of a duration defined by the lifetime of a person)
▪ Usually granted for the lifetime of the grantee
▪ Can also be granted for the lifetime of a person other than the grantee (an estate
“pur autre vie”)
o An estate measured by the life of a person.
o Two types:
1. Life estate for the life of the grantee (“To A for life”). A has right to possession for
the term of his natural life; or
2. Life estate for the life of a person other than the grantee (life estate pur autre vie;
for the life of another). “To A for the life of B”.
3. The holder of the life estate (called the life tenat) ,ay grant it to someoneelse, but
the estate still comes to an end on the death of the original life tenat.
o If the cestui que vie (‘he who lives’) dies, the interest will revert back to the grantor (a
fee simple).
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o Alienation
Inter vivos disposition
▪ Can assign life estate (sell or give), thereby creating an estate pur autre vie.
▪ Can also assign an estate pur autre vie.
Testamentary disposition
▪ Cannot devise a life estate (it doesn’t exist after death).
▪ BUT can devise a life estate pur autre vie.
o Liability: must not commit waste (see below).
▪
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Leasehold Estates -A complex hybrid of estate and contract
▪ Lease for a Fixed Term
▪ Periodic Tenancy
▪ Tenancy at Will
▪ Tenancy at Sufferance
▪ -they are chattels real
Legal leases
General Law land
• A legal lease must be created by deed (s 52(1) PLA).
• However, there is an exception (s 54(2)):
i. Leases for a term not exceeding 3 years (includes periodic tenancies, even though they
may continue beyond that time, and leases where option to renew);
ii. Taking effect in possession (means a lease that is to commence at or before the date it is
made);
iii. At the best rent which can be reasonably obtained without taking a fine (“best rent”
means market rent, and a “fine” is a premium paid to the landlord for the grant, renewal
or transfer of the lease).
Leases fitting this description are legal, notwithstanding that they are not created by deed.
Torrens System land
• Leases for a term >3 years must be registered (ss 66 and 40 TLA).
• Leases for a term ≤3 years and periodic tenancies are un-registrable. Note: if it also falls within
s 54(2) PLA, then it could be classified as a legal lease under that provision.
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• Distinction between legal and equitable leases is not so important.
• Under s 42(2)(e) TLA, the registered proprietor takes subject to the interest of a tenant in
possession of the land (but excluding any option to purchase). Thus all leases (whether legal or
equitable) are enforceable against new RP.
Equitable leases; Creation of equitable lease
• Non-compliance with formalities means the lease cannot be a legal lease, but the agreement
to lease will create an equitable lease if it is specifically enforceable (principle in Walsh v
Lonsdale).
• The agreement may be specifically enforceable if it:
1. Complies with s 126 Instrument Act;
o See Topic 11.
o Agreement must identify parties, premises and duration of the term of the lease and
substantial terms of the agreement.
2. OR doctrine of part performance is satisfied;
o See Topic 11.
o E.g. where: taking possession and making alterations; granting and taking of
possession; collecting rent from an occupant; continuing in occupation but on
different terms than previously; permitting occupancy and entering into requests by
occupant for planning approval; or continuing an occupation initially permitted only
because of negotiations for occupancy.
3. AND no discretionary bars to specific performance (see Topic 11).
• The equitable lease is on the same terms as if a legal lease had been created (Walsh). That is,
the landlord is entitled to exercise the same rights he would have had under the legal lease,
and the tenant is entitled to the same protection he would have had under the legal lease.
Periodic tenancy
• In addition to an equitable lease, if tenant enters into possession and pays rent then a legal
periodic tenancy is created (Chan v Cresdon). It’s a tenancy because it falls within s 54(2) PLA.
• Period = rental period;
• Not very useful, since either party can determine by giving notice at end of period.
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Is equitable lease as good as legal lease?
• Not really (High Court in Chan).
• Equitable lease depends on court finding a specifically enforceable agreement. Whereas a
legal lease, once registered, is valid even if agreement behind lease was not specifically
enforceable.
• Under GL land, equitable leases were not as enforceable as legal leases. But under TS it’s
nearly as good.
• Some covenants may not apply to equitable lease (depends on interpretation). In Chan, High
Court held the guarantor of a tenant’s obligations was not liable when tenant defaulted
because guarantee referred to “guarantee of obligations under this lease” and this was
interpreted as meaning only the registered lease; and not the agreement to lease (which
created an equitable lease) nor the periodic tenancy.
Future Interests
Successive interests can exist in land under
the doctrine of estates. These may arise
because a grantor only gave away part of his
or her estate – for example where A, the fee
simple holder, grants to B a life estate and
then to C in fee simple. Here B has a present
interest in the life estate and C has a
‘remainder’ in the fee simple. The remainder
is referred to as a future interest because C
will enjoy a right to possession in the future
once B’s life estate has terminated. Another
form of future interest is a ‘reversion’. If A is
the fee simple holder and he or she grants a
life estate to B but does not in any other way
deal with his or her interest in the fee simple
A is said to have a reversion. When B dies the
fee simple and the immediate right to
possession will revert to A. Reversions and
remainders are recognized proprietary
interests in land which can be alienated.
In addition remainders may be contingent
upon the occurrence of a certain event. For
example, the grant of the remainder to C
might be conditional upon C attaining a
certain age. Complex rules have been
developed to control the circumstances in
which contingent remainders could be
created or could take effect. Ingenious
lawyers have invented some devices to
circumvent these rules, thus giving rise to
different forms of future interests. Today
future interests are often created by wills or
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Future Interests: Reversion
2.3.4 Future Interests: Remainder
Example of a Contingent Remainder
Y, the fee simple owner of Whiteacre, grants Whiteacre “to B for life then to C if C attains the age of
25”. At the time of the grant C is 19 years old.
After the grant:
▪ B has life estate in possession
▪ C has a contingent fee simple remainder which will vest when C turns 25.
What if B dies before C turns 25? Under PLA s 192, the fee simple estate reverts to Y until C turns 25
at which point it vests in C.
▪ A vested remainder is a remainder bound to take effect in possession
precise identity of person to take the interest must be known;
and
there must be no condition precedent to interest falling into possession
(apart from the natural end of the prior estate or estates)
▪ A contingent remainder is a remainder which may or may not take effect in
possession
precise identity of person to take the interest is not known at the date of the
grant;
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and/or
there is a condition precedent to interest falling into possession (apart from
the natural end of the prior estate or estates)
Crown Land, General Law Land, and Torrens System Land
Land Victoria, Land Titles http://www.dtpli.vic.gov.au/property-and-land-titles/land-titles
A land title is an official record of who owns a piece of land. It can also include information about mortgages, covenants, caveats and easements. Victoria's land titles are held in the state's online land titles register, managed by the Registrar of Titles using the Torrens system.
Before the Torrens system was introduced in 1862, a General law system operated in Victoria.
In 2012 Victoria celebrated 150 years of the Torrens title system, which revolutionised land registration and replaced the convoluted General law title system.
The Recognition of Native Title
Mabo • The Meriam people had been in occupation of the Murray Islands (Mer) in the Torres Strait
for generations before their first contact with Europeans.
• On 1 August 1879 the Torres Strait Islands were annexed to the Colony of Queensland.
• In 1882 the Murray Islands were reserved by the Colony of Queensland for the Meriam
people
• There was evidence of a continued use and possession of the land, which included that the
Meriam people were village dwellers, had individually delineated garden plots and had lived
in a subsistence economy based on gardening and fishing for generations prior to British
colonization.
•
• Procedural History of Mabo
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• In 1982, Eddie Mabo, Dave Passi and James Rice commence action in the High Court of
Australia.
• Queensland Coast Islands Declaration Act 1985 (Qld)
• Mabo v Queensland (No 1) (1988) 166 CLR 186
• The High Court held that the Queensland Coast Islands Declaration Act 1985 (Qld)
contravened the Racial Discrimination Act 1975 (Cth)
• Mabo v The State of Queensland (No. 2) (1992) 175 CLR 1
• 6 of the 7 High Court judges agreed that customary indigenous interests in traditional lands
are recognised as Native Title by the Common Law
In Mabo (No. 2) the doctrine of tenure was understood as compatible with the existence of native
title in Australia. Native title is the generic label for a variety of property rights to land held by
Indigenous Australians, and may range from rights to use land for particular purposes through to
rights to permanent possession. As Robert Chambers points out, much of the development of
Australian property law proceeded on the basis that native title didn’t exist. This presents problems,
as we shall see, because it meant many Indigenous Australians were dispossessed of their land,
Whereas today a successful native title claim depends on establishing a continuing connection
with the claimed land.
Brennan J in Mabo (No 2)
• 1. Recognition of Native Title rights
• 2. Relationship between Native Title rights and the Doctrine of Tenure
• Native Title is not an interest in land under the feudal doctrine of tenure. Rather, the
Crown’s radical title is burdened by Native Title
• 3. Relationship between Native Title rights and the common law
• Native Title does not derive from common law, it is ‘recognised’ by common law
• 4. Origin and Nature of Native Title
• “traditional laws acknowledged by and the traditional customs observed by the Indigenous
inhabitants of a territory”
• Native Title rights are (usually) communal and inalienable
• Native Title rights are proprietary not personal (majority decision)
Deane and Gaudron JJ in Mabo (No 2)
• Native Title rights are (usually) communal and inalienable
• Native Title rights are only personal (nb minority view)
• 6 out of 7 High Court judges in Mabo (No. 2) decided in favour of the Meriam people
(Murray Islanders):
• “[T]he Meriam people are entitled as against the whole world to possession, occupation, use
and enjoyment of the island of Mer”.
Native Title Act 1993 (Cth)
After the High Court’s decision in Mabo (No.2) in 1992, the Federal government put in place a
legislative scheme for, among other things, determining whether native title exists in relation to
certain land.
1) Section 223(1) requires claimants to establish that they are present members of an identifiable
Indigenous community, which existed at the time of Crown’s acquisition of sovereignty, and they
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are, therefore, the possible inheritors of the native title rights held by the Indigenous community at
that time.
2) Section 223(1)(a) (read together with 223(1)(c)) requires claimants to identify the traditional laws
and customs they now observe and rely upon to support their claim to native title rights and prove:
• That those laws and customs are substantially the same as those observed by their
ancestors at the time of Crown acquisition of sovereignty; and
• That observance of the laws and customs has continued substantially uninterrupted since
Crown acquisition of sovereignty.
Section 223(1) (b) requires the claimants to prove that “by those
laws and customs” [i.e the laws and customs to which reference is
made in s223(1)(a)], they “have a connection with the land or
waters” in relation to which native title rights are claimed.
• Provides for the recognition and protection of native title.
• Provides that a “future act”, which does not meet the requirements of Part 2 Division 3 of
the Act, is invalid to the extent that it affects native title.
• Validates “past acts” and “intermediate period acts” by Commonwealth, including past
grants of title, and enables states and territories to validate their “past acts” and
“intermediate period acts”.
• Specifies the effect on native title rights of the validation of “past acts” and “intermediate
period acts” and provides for compensation on just terms where there is an adverse effect.
• Establishes a bureaucracy for dealing with native title claims, including the National Native
Title Register and the National Native Title Tribunal.
Objects • Native Title Act 1993 (Cth) ss 3, 10
• Main objects • The main objects of this Act are: • (a) to provide for the recognition and protection of native title; and • (b) to establish ways in which future dealings affecting native title may proceed
and to set standards for those dealings; and • (c) to establish a mechanism for determining claims to native title; and • (d) to provide for, or permit, the validation of past acts, and intermediate period
acts, invalidated because of the existence of native title.
The Legislative Definition of Native Title
Native Title Act 1993 (Cth) s 223
“(1) The expression native title or native title rights and interests means the communal, group or
individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or
waters, where:
(a) the rights and interest are possessed under the traditional laws acknowledged, and the
traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a
connection with the land or waters; and
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(c) the rights and interests are recognised by the common law of Australia.
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting,
gathering, or fishing, rights and interests.”
Examples:
• Rights to live on country
• Rights to conserve, use and enjoy natural resources, including rights to fish, hunt and gather
• Rights to maintain, use and manage the land and travel across the land
• Rights to control access to land
• Rights to erect shelters on the land
• Rights to perform traditional ceremonies on the land
Non-exclusive native title rights have been recognised in the territorial seas (Commonwealth v
Yarmirr (2001) 208 CLR 1) and inland waters of Australia (Gumana v Northern Territory of Australia
(2007) 153 FCR 349)
Native Title Act 1993 (Cth) s 223
Native title is defined as:
(1) the communal, group or individual rights and interests of Aboriginal peoples or
Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interest are possessed under the traditional laws acknowledged, and
the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a
connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
Proving Native Title
Native title, unlike many property rights, tends to be difficult to prove. This is because claimants
need not only show that they currently hold property rights under traditional laws and customs, but
that their particular community held those rights when Britain acquired sovereignty over the land
and that it has substantially maintained those rights up to the present.
1) Section 223(1) requires claimants to establish that they are present members of an identifiable
Indigenous community, which existed at the time of Crown’s acquisition of sovereignty, and they
are, therefore, the possible inheritors of the native title rights held by the Indigenous community at
that time.
2) Section 223(1)(a) (read together with 223(1)(c)) requires claimants to identify the traditional laws
and customs they now observe and rely upon to support their claim to native title rights and prove:
• That those laws and customs are substantially the same as those observed by their
ancestors at the time of Crown acquisition of sovereignty; and
• That observance of the laws and customs has continued substantially uninterrupted since
Crown acquisition of sovereignty.
Section 223(1) (b) requires the claimants to prove that “by those
laws and customs” [i.e the laws and customs to which reference is
made in s223(1)(a)], they “have a connection with the land or
waters” in relation to which native title rights are claimed.
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Yorta Yorta (2002) 214 CLR 422
▪ Yorta Yorta people made a claim for native title rights in public lands and waters
around the Murray River in Victoria and New South Wales
▪ The claimants acknowledged that they had been physically dispossessed of their
lands since 1788, which interrupted and/or modified their use and enjoyment of
native title rights
▪ Olney J (trial judge) rejected their claim for native title rights. He said that the “force
of circumstances” (cf Mabo Brennan J “tide of history”) of dispossession washed
away any continued acknowledgement of traditional laws and observance of
customs in relation to the claimed land
▪ High Court decided that, although there can be some change or adaptation in
traditional laws and customs over time, there needs to be substantial continuity in
the acknowledgement of laws and observance of customs in relation to the claimed
land by the Yorta Yorta people from 1788 to the present.
Losing Native Title It follows that Aboriginal people may lose their native title rights if they lose their connection with
the land, through willingly or unwillingly "abandoning" it. But native title may also be extinguished
by the Crown using its radical title to allocate property rights in the land to itself or to others. Where
the new right is inconsistent with the continued right to enjoy native title, the native title right is
thereby reduced or eliminated.
1. Abandonment
Where Aboriginal people have lost a continuous connection between their traditional laws and
customs and the land (Yorta Yorta)
2. Extinguishment
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The Crown can extinguish native title rights but must evince “a clear and plain intention to do so”
(Mabo (No. 2)).
Where the law or act in question is a grant by the Crown of a property interest to itself or a third
party, ask whether the rights granted by the Crown are inconsistent with the continued existence of
native title rights. If they are, the native title rights will be extinguished to the extent of the
inconsistency.
Grant of a Freehold Estate
The grant of a fee simple estate will extinguish any pre-existing native title rights: Fejo v Northern
Territory (1998) 195 CLR 96
Grant of a Crown “Lease”
Need to consider the interpretation of:
• the particular Act under which the “lease” is granted; and
• the terms of the “lease” itself.
Wik (1996) 187 CLR 1
-destinguishing leases with contractual licenses: in one you can exclude the grantor in one you
can’t.
▪ Did the grant of pastoral leases under the under the Land Act 1910 (Qld) and the
Land Act 1962 (Qld) extinguish all incidents of the Wik people’s native title rights?
▪ The majority examined the background and purpose of the legislation. They found
that a grant of the pastoral lease did not give a right of exclusive possession to the
land.
1. The native title rights of the Wik people were not entirely extinguished, but
the grant was inconsistent with some native title rights (hence partial
extinguishment)
2. Must apply an ‘inconsistency of incidents’ test to determine whether and to
what extent a Crown grant might extinguish native title rights
3. Radical title does not even confer on the Crown absolute beneficial
ownership of land which was completely unoccupied at the time of
acquisition of sovereignty (rejection of obiter in Mabo)
Ward (2002) 191 ALR 1
▪ The claimant group made a claim for native title rights in a large area in the east
Kimberley region of Western Australia and part of the Northern Territory. It involved
land under various types of pastoral leases, the Argyle diamond mine, the Ord River
irrigation area, some Aboriginal owned land in the Northern Territory, national
parks, and vacant Crown land that had previously been part of a pastoral lease.
▪ Ward confirmed the ‘Inconsistency of Incidents’ test:
“Two rights are inconsistent or they are not. If they are inconsistent, there will be
extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment.
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Absent particular statutory provision to the contrary, questions of suspension of one set of rights in
favour of another do not arise” (Ward, para 82)
▪ It also affirmed that leasehold grants could partially extinguish native title rights
with respect to land.
Akiba v Queensland (No 3) [2010] FCA 643
Held by Finn J, at first instance, that the claimants had the following non-exclusive native title rights:
• “the right to access, to remain in and to use their own marine territories or territories shared
with another, or other, communities”; and
• “the right to access resources and to take for any purpose resources in those territories”
(emphasis added).
The Commonwealth v Akiba [2012] FCAFC 25
Queensland and Commonwealth legislation basically prohibited commercial fishing by those who did
not hold a licence granted under the schemes established by the legislation. The two governments
argued that the effect of the legislation was to extinguish any native title right that would otherwise
exist to fish for commercial purposes. Argument failed before Finn J but succeeded before Full
Federal Court.
Held by majority of Full Federal Court on appeal, varying Finn J’s determination, the claimants’
native title right to take resources “does not, however, extend to taking fish and other aquatic life
for sale or trade.” (NB overturned on appeal to High Court).
Akiba v Commonwealth of Australia [2013] HCA 33
In a unanimous decision handed down in two judgments the High Court of Australia found for the appellant. Taking a lead from cases like Yanner v Eaton,[3] and the Commonwealth v Yarmirr[4] the High Court held that The Commonwealth Fisheries Act 1952 and the Queensland Fisheries Act 1887, which both required licensing of fishing activates, “did not extinguish the relationship of the people to the land nor extinguish the native title bundle of rights”.[5] The first of the two judgments by French CJ and Crennan J. held a test as that asked:
• if the native title right being used cannot be exercised without abrogating the statutory right, “then by necessary implication, the statute extinguishes the existing right."[6] but also found that “that a particular use of a native title right can be restricted or prohibited by legislation without that right or interest itself being extinguished.[7]
I have a question though, once native title has been granted, can the government then go and legislate to absolve there native title rights, eg giving the land as fee simple to others.?
French and Crennan JJ
Para 24 “‘Extinguishment’ in relation to native title refers to extinguishment or cessation of rights.
Such extinguishment of rights in whole or in part is not a logical consequence of a legislative
constraint upon their exercise for a particular purpose, unless the legislation, properly construed,
has that effect. To that proposition may be added the general principle that a statute ought not to
be construed as extinguishing common law property rights unless no other construction is
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reasonably open. Neither logic nor construction in this case required a conclusion that the
conditional prohibitions imposed by successive fisheries legislation in the determination area were
directed to the existence of a common law native title right to access and take marine resources for
commercial purposes. In any event, nothing in the character of a conditional prohibition on taking
fish for commercial purposes requires that it be construed as extinguishing such a right.”
Hayne, Keifel and Bell JJ
Para 64 “Of course, regulation may shade into prohibition, and the line between the two may be
difficult to discern. But the central point made in Yanner, and reflected in each of Wik, Fejo, Yarmirr
and Ward, is that a statutory prohibition on taking resources from land or waters without a licence
does not conclusively establish extinguishment of native title rights and interests of the kind found
to exist in this case".
Para 67 “The prohibition of taking fish for sale or trade without a licence regulated the exercise of
the native title right by prohibiting its exercise for some, but not all, purposes without a licence. It
did not extinguish the right to any extent.”
Tutorial Answer #1
This legal scenario involves a complex inter-relationship between estate law and liceses. I will go
through possible liability for each relationship.
Alex Cabbott to Stella.
Given that Alex Cabbott has only been granted permission to grow his vegetables is Stella’s garden,
with no consideration granted, and merely as a favour it is likely that Alex has a bare license and
nothing more. The fact that he can come and go as he pleases is unlikely is unlikely to transform this
interest of any greater significance.
Given this bare license, Alex has no equitable or contractual interest in this land he has not ensue
any action against stella. There is no possible equitable interest to his personal property (the
vegetables) because his vegetable are sufficiently attached to the land.
Alex to Margarat
Given that margaret is likely to have only an contractual license to this property, it is likely that she
has no enforceable rights against third parties (King v David Allen). Because of this lack of proprietary
interest I would conclude that margarate hadno right to evict alex for trespass.
Because the grantor (stella) did not make an implied or explicit that the contract could be revocable,
margarate develops no proprietary interests in the land and thus does not have the rights against
third parties.
Margarte to Stella
Alex cabot has an bare license
Stella has fee tail interest
Stello will be able to sell you remaining fee tail interest In the land however this is very
Margarat has contractual right to the property, but possibly also an equitable interest in the land
and thus enforceable rights against the world at large (license coupled with an interest)
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Tutorial Answer
You should consider all the all the possible interests before going forward
-license coupled with an interest
• you need an established interest for this though
-Australian softwood Forest
Maybe Profit a prendre? human labour
Profit a Prendre
[French, Right of taking.] The right of persons to share in the land owned by another.
A profit a prendre enables a person to take part of the soil or produce of land that someone elseown
s. It is a right to take from the land, as in the mining of minerals and is, therefore,distinguishable fro
m an Easement, which is a nonpossessory interest in land generally giving aperson a right of way on
the property of another.
A profit (short for profit-à-prendre in Middle French for "right of taking"), in the law of real property,
is a nonpossessory interest in land similar to the better-known easement, which gives the holder the
right to take natural resources such as petroleum, minerals, timber, and wild game from the land of
another. Indeed, because of the necessity of allowing access to the land so that resources may be
gathered, every profit contains an implied easement for the owner of the profit to enter the other
party's land for the purpose of collecting the resources permitted by the profit.
• they have to be a natural product of the land though, not human labour and in this case
his vegetables are most likely human labour
• eg allowing your cows to eat the grass on the ground
Remember a leasehold has:
• definite duration of time
• exclusive possession
• permission
• don’t need contract or consideration
-maybe agency can be an issue; Stella may have been given an agency authoritive to get rid of
third parties.
Tutorial # 2
-In regards to native title
• structure of questions:
- Native title rights and interests may include rights to:
• live on the area
• access the area for traditional purposes, like camping or to do ceremonies
• visit and protect important places and sites
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• hunt, fish and gather food or traditional resources like water, wood and ochre
• teach law and custom on country.
In some cases, native title includes the right to possess and occupy an area to the exclusion of all
others (often called ‘exclusive possession’). This includes the right to control access to, and use of,
the area concerned. However, this right can only be recognised over certain parts of Australia, such
as unallocated or vacant Crown land and some areas already held by, or for, Indigenous Australians.
-Look at these rights to see if they exist (are they connected to land on water?) if yes then you can
move forward to discuss wither the laws and customs have substantially been uninterrupted.
-standing
-membership
-(1)
(a) substantially the same
(b) connection to land or water
Specific rights