Class 2: NT & Crown Grants

Required Readings: Moodle: NT & Crown Grants S&N: 3.3-3.20, 3.75 – 3.97

Native Title & Crown Land Grants in NSWMoodle

Arthur Phillip proclaimed NSW – ‘Crown Land’ belonging to the King Merely a political assertion – some land owned by indigenous people Under assumption that all land was Crown land- governments made hundreds of thousands of land

grants to citizens Typically- a grant of ‘freehold fee simple’ Once a citizen has a land title they are free to use it for their own benefit –deal with it however they

please The Crown can only get freehold titles back by ‘compulsory acquisition’ =Constitution s 51(xxxi) State constitution has no provision protecting private property from government expropriation and so

they do not have an obligation to pay compensation – extremely contentious – the government only does so with caution

Old System Information and Search Guide – March 2013Land Title Systems

Three land titling systems1. Crown land2. Old system title (common law)3. Torrens title (Real Property Act)

Crown Lando The land of an acquired colony that belongs to the reigning monarcho Presumption applied – Captain Arthur Phillipo Only the Crown could sell or distribute land

Old System Titleo From 1792 until the introduction of the Torrens Title System in 1863 – land ownership in nSW

was based on the English common law system of title known as ‘Old System’o Old system land title is a matter of quality: the title is good, but only if a better one cannot be

establishedo It is a chain of evidenceo In order to establish land ownership – the searcher must collect and examine an unbroken chain

of documents from the original Crown grant up to the present dayo A separate deed is prepared every time land is dealt with – whether subdivided, mortgaged or

leasedo More chance of these documents being losto The Conveyancing Act 1919 recognises the difficulties – cut off period of 30 years ‘good root of

title’ to prove ownershipo Problems for landowners when subdivided

Torrens Titleo Introduced in 1863 to combat problems of uncertainty, complexity and cost associated with Old

System titleo The system was so effective – spread to other Australian stateso TTS maintains and guarantees the Torrens Title Registero Individual land transactions are mandatorily lodged with LIP using standardised formso The new owner is issued with a single document called a Certificate of Title which supports

their ownershipo The register is maintained in the Integrated Titling Systemo Unlike the Old System, TTS tells us the current state of ownership and lists any encumbrances

affecting landThe First Crown Grants

Crown grants are issued subject to various exceptions, reservations and conditions and the title that develops from the grant will inherit these.

These conditions are not written out in full on subsequent titles so if you need to investigate – consult the original Crown grant

Exceptionso Reserves of gold, silver, mineralso Land below a specified deptho High water mark tidal

Reservations:o Construct roads, bridges,o Take and remove indigenous timber

Conditions:o Grants sometimes contain conditions which impose positive or negative obligationso Maintenance of a seawall etc

Quit Rents:o Land tax imposed on freehold or leased land

Reservations of gold and silver Reservations of coal 100ft reservation from the mean high water mark Exceptions to Crown grants issued after the Real Property Act 1862

Fragmentation in a Spatial Dimension: The Doctrine of Tenure3.3

Roots of the doctrine of tenure lie in the: Economic & Political interests

Of the feudal system The term refers to a mode of holding land whereby one person (tenant) holds lands from another

subject to the performance of certain obligations Tenants who held directly from the Crown were known as ‘tenants in Chief’ Only the Crown ‘owned’ land absolutely, as it alone held of no other Presumed that all land titles were held by the King’s subjects as a result of a royal grant. The obligations of tenants generated complex feudal ties between King and tenant in Chief

o A tenant provides the lord with services and a right to incidents. They may alienate their land further, creating subtenants (subinfeudation) The doctrine of tenure does not strictly apply in Australia, but some parts remain:

o The concept of the Crown owning all the land and freeholders not having absolute ownership remains.

o The concept of mutual duties and obligations (services and incidents) does not apply.

Alienation of land under the doctrine of tenure1. Subinfeudation: where a tenant would alienate a part of his land to a subtenant (vertical)2. Substitution: where a tenant would alienate all or part of his land to another tenant but

without becoming his lord (new tenant is not a sub-tenant, but still a tenant of the original lord)(horizontal)

Doctrine of tenure has no practical significance – it’s influence lingers in three areas:1. No person can ‘own land’ as it is held of the Crown2. The modern landlord-tenant relationship bears some resemblance to early tenurial

relationship.1

3. The traditional doctrine of tenure operated until Mabo (No 2)2 to obstruct recognition of native title.

Doctrine of tenure served to obstruct the recognition of native title DoT recognised the rights could be divided up (Estates means in a general sense, the right to

possession)

No Services3.5

1 (1992) 175 CLR 1, 80.

2 (1992) 175 CLR 1

Services: the tenant has to provide a variety of services for the lord in return for his tenure. In return, the lord provides the land, a court and protection

Council of Municipality of Randwick v Rutledge:3 The early Governors had express powers under their commissions to make grants of land

Socage: a feudal tenure of land involving payment of rent or other non-military service to a superior.

If these substantive obligations ever existed in Australia, then a case could be made for the idea that there is no absolute ownership of land – instead grants of land to citizens would lead to a ‘holding’ of the Crown.

No Incidents3.6

At CL, land held in fee simple4 would pass to the feudal overlord on the occurrence of certain events.

Feudal overlord = the Crown In the case of socage tenure, escheat5 occurred in two kinds of cases:

1. Where the tenant in fee simple was convicted of a serious criminal offence, or left the realm to avoid conviction

2. Death of tenant without next of kin Where the tenant dies without next of kin, the Crown now takes realty and personalty of individuals

dying interstate without next of kin as bona vacantia in the majority of Australian jurisdictions

Fragmentation in a Temporal Dimension: The Doctrine of Estates The doctrine of tenure recognised that the sum total of rights could be divided Western Australia v Ward:6 the evolution of the doctrine of estates – property interests came to be

fragmented on the basis of time. Land has certain characteristics that differentiate it from other forms of property.

1. It’s location is permanent2. May be capable of generating incoming forever

Mabo (No 2): the ‘estate in fee’ – the maximum interest which a subject could have in the land.7

Estates are differentiated from easements8 or profits a prendre9.o The difference was recognised by the CL in its categorisation of estates as ‘corporeal

hereditaments’ (physical possession) and ‘incorporeal hereditaments’ (rights over land) Interests can be carved out on a temporal basis – present and future possession Wills – granted ownership of the land at some point in time but not necessarily immediate

ownership 3.9 has a problem

General Definitions

3 (1959) 102 CLR 54

4 Fee simple: a form of freehold ownership. The highest ownership interest possible that can be had in real property. The owner has the right to use

it, exclusively possess it, commit waste upon it etc.5

Escheat: CL doctrine which transfers the property of a person who dies without heirs to the Crown6

(2000) 170 ALR 159, 359.7

(1992) 175 CLR 1, 80.8

Easement: a right to cross or otherwise use someone else’s land for a specified purpose9

Profit a prendre: a right to take from the land owned by another person part of the natural produce grown or part of the soil. E.g. plant and harvest crops.

Fee Simple The greatest interest in land recognised by the common law and is the closest it comes to absolute

ownership Gumana v Northern Territory:10 An estate in fee simple is for almost all practical purposes the

equivalent of full ownership of the land and confers the lawful right to exercise over, upon and in respect to the land all rights of ownership etc. Pg 179

Wik v Qld:11 fee simple affords ‘the widest powers of enjoyment on respect of all the advantages to be derived from the land and from anything found on it’: per Gummow J

Fee: indicates that the estate was one of inheritance Simple: under the old law, the estate was capable of passing to heirs generally and was not

restricted to a particular class of heirs (fee tail).

Fee Tail Owed its existence to the importance of land as a form of family wealth Rights of disposition more limited compared to FS. The estate was given to a person and then to specified descendants of that person, with the

intention that it should last only while this line of specified descendants continued. Ensures that the property remain in the family forever. In NSW, this has been abolished.

Life Estate A life estate was created when an interest in land was granted to a person for life Not an inheritance since it terminated on the death of the tenant An estate pur autre vie (for the life of another) was created by an express gift

o To B for the life of A – A conveying the interest to Bo B’s interest would terminate when A dies.

Leasehold Estates Distinguished from freeholds on the basis that their duration is certain or capable of being

rendered certain. Regarded as mere personal transactions without the protection of the actions for recovery of land

o A lease for a fixed term of years: fixed for a period which expires automatically at the end of the period

o A periodic tenancy: differs from a lease for a fixed term in that it does not terminate until appropriate notice is given

10 (2007) 153 FCR 349.

11 (1996) 187 CLR 1, 176.

Freehold

Fee Simple, Life Estates and Fee Tail

A freehold estate carried with it seisen and consequently the

protection of the actions for recovery of land

Leasehold

had no such remedy, seisen being the landlord

Can only recover damages from the landlord for

breach of contract (now they have protections)

o A tenancy at will: may be determined at any time by either party subject, to a ‘packing-up’ period – see Landale v Menzies12

o A tenancy at sufferance: arises where a tenant takes possession of land lawfully pursuant to a lease, but continues wrongfully in possession after the termination of the lease.

This occurs where a tenant for a fixed term ‘holds over’ after the expiration of the term without the landlord’s dissent or assent: Anderson v Bowles13

3.75-3.97Systemic Fragmentation of Interests in Land: The Common Law, Tenure and Native Title

Difference between English and Australian common law is that Australian law recognises indigenous rights

Indigenous land rights can co-exist with common law, non-indigenous proprietary rights

Mabo v Queensland (No 2) (1992) 175 CLR 1 MF:

Murray Islanders commenced proceedings in the HC in response to the QLD (Aboriginal and Islander Land Grants) Amendment- establishing a system of making land grants on trust for Aboriginals and TSIs.

The Meriam people had been in occupation of the islands for generations prior to first European contact and they continue to live in villages on islands to this day.

The P sought declarations, inter alia, that the Meriam people were entitled to the Murray Islands as owners/possessors

Legal Issues: The defendant’s argument: when the territory of a settled colony became part of the Crown’s

dominions, the law of England so far as applicable, became the law of the colony and thus the Crown acquired absolute beneficial ownership of all land in the territory – thus no other right or interest could thereafter be possessed by any other person unless granted by the Crown.

Are the rights of the Meriam people of today to be determined on the footing that their ancestors lost their traditional rights and interests in the land of the Murray Islands in 1879.

Reasoning:Brennan J:

According to AG v Brown, the CL itself took from indigenous inhabitants any right to occupy their traditional land, exposed them to deprivation of the religious, cultural and economic sustenance which their traditional land provides.

This made the indigenous inhabitants intruders – unjust Analysis of the Defendant’s arguments.

1. The Crown acquired sovereignty over the Murray Islands and that the laws of QLD became the law of the Murray Islands

Defendants accept proposition except challenge that the Crown acquired absolute beneficial ownership of the land when Crown acquired sovereignty

2. The feudal basis of the proposition of absolute Crown ownership Crown grants is the essential principal of land law Land in Australia which has been granted by the Crown is held on a tenure of some kind

and the titles acquired under the accepted land law cannot be disturbed. It is not corollary that the Crown acquire absolute beneficial ownership of that land to

the exclusion of the indigenous inhabitants. If the land were terra nullius then the Crown would have absolute beneficial ownership

– AG v Brown (as there would be no other proprietor) But if the land were occupied by indigenous inhabitants – the radical title14 which

is acquired with the acquisition of sovereignty cannot itself be taken to confer absolute beneficial title to the occupied land.

The doctrine of tenure applies to every Crown grant of an interest in land, but not to the rights and interests which do not owe their existence to a Crown grant.

12 (1909) 9 CLR 89.

13 (1951) 84 CLR 310.

14 Radical Title: confers only sovereignty and does not automatically extinguish native title rights. The ultimate ownership rights of the land vested

in the crown. Estate….

3. The nature and incidents of native title Native title is given its content by the traditional laws acknowledged by and the

traditional customs observed by the indigenous inhabitants of a territory. Some general propositions about native title stated without reference to evidence:

i. Unless there are pre-existing laws, the rights and interests which constitute a native title can be possessed only by indigenous inhabitants and their descendants.

The Meriam people asserted an exclusive right to occupy the Murray Islands and held a proprietary interest in those islands

ii. Native title may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence – provided those laws and customs are not repugnant to natural justice etc.

iii. Possession may be protected by a representative action brought on behalf of the people who sue to protect rights which are dependent on the communal native title.

Extinguishing Native Title The exercise of a power to extinguish native title must reveal a clear and plain intention

to do so, whether it be from the Executive or Legislature. Brennan J HELD: native title had not been extinguished by the reservation of the Islands for sale

for the benefit of their inhabitants. However, native title had been extinguished with respect of two acres of land leased to the London Missionary.

Deane & Gaudron JJ: Contents of the rights and identity of those entitled to enjoy native title must be ascertained by

reference to that traditional law or custom Subsequent developments or variations of customs do not distinguish the title in relation to land Rights are not assignable outside the overall native system They can be voluntarily extinguished by surrender to the Crown They can be lost by abandonment of the connection with the land or by extinction of the relevant

tribe or group Once native title ‘expires’ the Crown’s radical title becomes full beneficial ownership More on page 213

Mason CJ and McHugh J: Operation of the RDA15 Extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a

claim for compensatory damages Held that traditional title was extinguished by an inconsistent Crown grant – concluded that such an

extinguishment does not entitle native title holders to compensation.Deane J:

Dissenting – holding that this was simply a form of occupancy enjoyed with the permission of the Crown and that since the first settlement, the Crown had evidenced an intention in relation to the land in the colony which was inconsistent with any recognition of native title.

Doctrine of Tenure after Mabo (No 2) Court held that it was too late to rule otherwise (in relation to the theory of tenure) A distinction was made between the radical title acquired by the Crown and the absolute beneficial

ownership that was held to follow from the traditional doctrine of tenure This case overruled AG v Brown It followed that the Crown only acquired absolute beneficial ownership in respect of land which was

not in the occupation of the Indigenous inhabitants at the time of acquisition of sovereignty.

Native Title – A Proprietary Interest? In Milirrpum v Nabalco: Blackburn J held that even if the common law recognised some form of

communal native title, it was necessary for the plaintiffs to show that their predecessors held a recognisable proprietary interest in the land

o By considering the extent of proprietary interests- it includes the right to use and enjoy, the right to exclude others, right to alienate – these rights do not need to co-exist before there can be a proprietary interest

15 Racial Discrimination Act 1975

o Indigenous people use the land- care for it, perform rituals etc . However, according to this case, this is not an indication of a proprietary interest

Problems the Mabo (No 2) decision created:1. The necessity to validate titles issued after the commencement of the RDA which might have

rendered the Act invalid2. A requirement to make provision for permitted future development of land affected by native

title3. The need to provide a regime for the speedy and efficient determination of issues of native title

The Native Title Act 1993 (Cth) S 10: recognises the concept of Native Title S 11: it cannot be extinguished contrary to the Act S 223: Definition of Native title Pg 217. Limitations are also placed to which future legislation or grants can affect native title: Part 2, Div 3 S 20: they must agree to the extinguishment or their property must be acquired under compulsory

acquisition legislation, which provides compensation Pt 2, Div 3, Subdiv P: the legislation may recognise the special relationship between Aboriginal

people and their land by giving them a ‘right to negotiate’ before an interest (e.g. mining lease) is granted

The Nature and Incidents of Native Title Mabo (No 2): Brennan J: ‘native title has its origin and is given its content by the traditional laws

acknowledged by and the customs observed by the Indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs’.16 – forms the basis of the definition of native title

Wik: Gummow J: the nature of native title will vary. It may comprise of personal or communal usufructary17 rights involving access to the area of land etc’.18

De Rose v South Australia: Apart from the requirement in s 223(1)© the rights and interests must be capable of recognition under the common law, s 223(1) does not impose limits on the content of traditional laws and customs’.19

Western Australia v Ward (2002) 191 ALR 1MF:

In 1994, the Miruwung and Gajerrong people filed an application with the National Native Title Tribunal seeking recognition of title rights.

Gleeson CJ, Gaudron, Gummow and Hayne JJ: Aboriginal peoples’ connection is essentially spiritual Native title defined in s 223(1)(c) S 11(1) of the NTA provides that NT is not able to be extinguished contrary to the NTA and that

claims that gave rise to the present appeals are claims made under the NTA for rights that are defined in that statute

Several points made:1. The rights and interests may be communal, group or individual rights and interest2. The rights and interests consist ‘in relation to land or waters’3. The rights and interests must have three characteristics

a. They are rights and interests which are ‘possessed under the traditional laws acknowledged and customs observed’

b. By those traditional laws and customs, the peoples have a connection with the land/water in question

c. The rights and interests must be ‘recognised by the common law of Australia’ (a): satisfied (b): s 223(1)(b) is a connection with the land or waters ‘by those laws and customs’ -

16 (1992) 175 CLR 1, 58.

17 Usufructuary: never had possession of this property but did have an interest in the property itself

18 (1996) 175 CLR 1, 169.

19 (2003) 133 FCR 325, 200.?

o it requires the rights and interests possessed under the traditional laws and customso for connection with land or waters by those laws and customs

Para (a) and (b) of s 223(1) indicate that it is from the traditional laws and customs that native title rights and interests derive, not the common law.

Fejo: The NTA does not deal with the ascertainment or enforcement of native title rights- it provides for the establishment of NT and recognises and protects it.

Recognition may cease but native title may still subsist.

What rights do the native title ‘bundle of rights’ contain?Territorial Sea:

Commonwealth v Yarmirr: the HC examined whether native title could exist over territorial sea and seabed

o In so far as native title could only operate as a burden on the Crown’s radical title, the Cth argued that if radical title ended at the low-water mark, so did too native title.

o HC held that the crown did not have radical title over the sea and therefore tenurial rights terminated at the low-water mark. However, the Crown had interests and rights over it, and that native title could exist alongside such rights as long as it was not inconsistent with them

Torres Strait Islanders v Qld (No 2) (2010) 270 ALR 564: read pg 223 – about how Island communities have differential regard for the areas of their marine estates as they radiate outwards.

Inland Waters: Yanner v Eaton: the HC held that hunting of crocodiles with harpoons was a valid exercise of native

title NTA s 223(1)(b) refers to native title rights over ‘land or waters’ Gumana v NT: considered the effect of the low-water mark under Ab land rights and held that a fee-

simple over land between high and low water mark and parts of rivers conferred a right of exclusive possession

o It therefore prevented the NT from issuing commercial fishing licences over such land and the water above it – and it excluded the public right to fish and navigate such waters.

Cultural Knowledge: WA v Ward: although the relationship of Ab people to their land has a religious dimension, we do not

think a right to maintain, protect and prevent misuse of cultural knowledge is a right in relation to land that can be the subject of a determination of native title.

Protecting Cultural Knowledge: Ward: affirmed that native title does not extend to the protection of intellectual property rights

associated with the land Foster v Mountford: an interlocutory injunction was granted to prevent the publication of a book

containing tribal secretsMinerals and Petroleum

Ward: HC held that legislation had extinguished any possible native title rights to minerals with the possible exception of ochre

Is Native Title Alienable? It is general inalienable20 – Mabo (No 2) Exceptions:

1. Native title may be surrendered by the Crown2. May be acquired by a clan, group or member of an indigenous people in accordance with the

laws and customs of that peopleMembership of the Claimant Group

Mabo (No 2): Brennan J determined that membership of an indigenous group ‘depends on biological descent from Indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people’

Ward: requirement of strict biological descent was rejected in Ward – ‘a substantial degree of ancestral connection between the original native title holders and present claimants is required’

Ngalakan People v NT: found that the determining factor was whether the traditional laws acknowledged and the traditional customs observed by the group allowed a person to identify as a member of a group

20 Alienable land in property law is land that has the capacity to be transferred to by mortgage or by deed. Property is generally deemed to be

alienable unless there were restrictions placed on it.

Gumana:21 held that spouses of native title owners held native title because the relevant connection was between the community and the land – key question is whether a particular individual was a member of that community

Alyawarr:22 determinations made under s 225 of NTA cover a range of possibilities which depend upon the nature of the society said to be the repository of the traditional laws and customs that give rise to native title rights and interests claimed.

Sampi:23 where members of the relevant society enjoyed ‘communal ownership of the native title rights, they are allocated intramurally to particular families and clans’

Ward: found that ‘groups which were territorially adjacent and shared economic and social links, could be regarded as a composite community with shared interests’

Neowarra:24rejected the contention that native title should be recognised on a dambun or language level

Lardil Peoples:25Alywarr referred to this case – held that each group held native title in respect of a defined area of land

Akiba: held that reciprocal rights held by an indigenous group with another group are not native title rights – s 223(1) does not contemplate rights and interests which are dependent on the permission of other native title holders for their enjoyment…such rights are not a connection under their laws and customs but held mediately through a personal relationship with a native title holder’

Can Native Title Evolve Over Time? Mabo (No 2): ‘native title is not frozen as at the moment of establishment of the colony’ Yanner v Eaton:26 ‘held that the use of motorised craft to conduct traditional activities such as hunting

and fishing was a legitimate exercise of native title rights on the basis that it was an ‘evolved or altered form of traditional behaviour’

Harrington Smith: 27 modified method of hunting (i.e. using motorised stuff) is fine – the question is what to make of all the evidence concerning hunting

Akiba: reasons why claimants hunt (i.e. inexpensive recreation, socialising with friends and family, passing knowledge, obtaining a supplement to supermarket food; - these reasons are not evidence of observance of traditional laws and customs

Akiba: right to engage in commercial fishing – rights extinguished by statute.

Class Notes: Tenure: who is in possession Estate: how is the land divided – different rights people have Doctrinal – what are the rules – marking the bounds between what are property rights and what are

regular rights?

21 (2007) 153 FCR 439.

22 (2005) 145 FCR [79] to [86]

23 [2005] FCA 777

24 [2003] FCA 1402

25 [2004] FCA 298.

26 (1999) 201 CLR 351.

27 [2007] FCA 31.