Introduction to Property Law Notes

Sample

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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