Native Title 1

LAWS216 Property Law Readings Topic Pages The Doctrine of Tenure; Native Title 1 - 5 Theories of Property 5 - 12 The Concept of Property 12 - 26 Common Law and Equitable Interests in Land 26 - 31 Old System Priorities: Introduction to Torrens Title 31 - 39 Torrens Title I: Indefeasibility and Exceptions 39 - 55 Torrens Title II: Unregistered Interests and Priorities 55 - 68 Common Ownership and Strata Title 68 - 88 Mortgages 88 - 110 Leases and Residential Tenancies 110 - 145 Private Land Use Planning - Easements 145 - 165 Restrictive Covenants: Personal Property 165 - 178 The Doctrine of Tenure and Native Title Textbook Chapter 4 – Native Title • Much Indigenous law relates to conduct which ensures the preservation of the land in good condition for those who come later. • Blackburn J in Milirrpum v Nabalco found that the Yolngu people has a ‘more cogent feeling of obligation to the land rather than of ownership of it’. • Indigenous law also embraces some very subtle systems of inheritance, related to shifting kin definitions, which in turn establish overlapping degrees of responsibility for the land • Cook simply claimed possession of NSW on 22 August 1770, without either seeking or obtaining Indigenous permission. Comfortable acceptance of the terra nullius doctrine and acquisition of the colony by settlement rather than conquest • Mabo (No 2) - Deane and Gaudron JJ o ‘As political power in relation to domestic matters was transferred from the Imperial Government in England to the European Colonists on the other side of the world, the Aborigines were increasingly treated as trespassers to be driven, by force if necessary, from their traditional homelands’. • Burton J in R v Murrell 1836 rejected the idea that Indigenous people were governed by law, and without a recognizable system of law, it was open to him to conclude that Indigenous people had no recognizable rights to be protected. • R v Ballard or Barrett o Forbes CJ claimed that intra-Aboriginal crimes should be settled according to the Aboriginal people’s own customs, thus acknowledging a kind of self- governance based on pre-existing Indigenous law and traditions o Dowling J – introduced the concept of consent – Indigenous people must consent to being governed by English laws. ‘The Englishman has no right wantonly to deprive the savage of any property he possesses or assumes a dominion over. • Attorney General v Brown o Dealt with the issue of whether Indigenous rights survived settlement. o A coal miner sought to defend an action for trespass by rejecting the proposition of Crown ownership. o Held that the land was the Crown’s, and the recognition of any Indigenous rights in land would be inconsistent with the Crown holding title • The doctrine of tenure permitted full legal and beneficial ownership of all lands to vest in the Crown, thereby serving to help dispossess Indigenous Australians • Milirrpum v Nabalco – The Gove Case o Blackburn J found that Indigenous people did have a recognizable system of law, but they did not have a propriety interest in land. o He found that the usual indicia of property were not present: the right to use and enjoy, the right to alienate, and the right to exclude. o He noted that even if these indicia were present, some formal act by the Crown would have been needed to recognize the Indigenous relationship to the land before it could be protected. • Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) o Directly vested existing reserves in Aboriginal ownership, as well as providing a mechanism for claims to be lodged by Aboriginal groups • Mabo (No 2) o Eddie Mabo, David Passi and James Rice sought a declaration that the Meriam people were entitled to their lands and the surrounding waters in the Murray Islands, on the basis that they held a traditional native title to them; or, in the alternative, that they held their land by virtue of possessory title or local custom. o They argued that any interference with or infringement of these rights constituted a breach of a fiduciary duty owed by the state of QLD to the Meriam people o High Court held that the common law of Australia recognized a form of native title that was grounded in the laws and customs of Indigenous people o Concluded that ‘the rights and interests in land possessed by the Indigenous inhabitants of the territory’ existed long before the relevant laws of England were brought to Australian shores and that they ‘survived the change in sovereignty’. o Native title became available only from 1992 • When the British Crown acquired sovereignty, native title was not automatically extinguished. Instead, sovereignty gave rise to radical title, rather than absolute beneficial ownership. • It was only where native title was extinguished altogether that Crown’s radical title became full ownership • Pursuant to Mabo (No 2), the origins of native title lie in the ‘traditional laws acknowledged by and the traditional customs observed by the Indigenous inhabitants of a territory.’ o Can place a large burden on Indigenous people to prove by factual evidence what those customs and traditions involve • Where there is a loss of connection with Indigenous traditions and customs, native title will be extinguished. Ceasing to acknowledge traditional law or failing to observe customs would amount to a loss of connection, as would the death of the last member of the group or clan. • Radical title permits the Crown to extinguish native title where a clear and plain intention to extinguish is evident. Acts of extinguishment may include: o Legislation that manifests an intention to extinguish native title o Valid laws or executive acts creating rights in land in third parties which are inconsistent with the survival of native title o Crown acquisition of the absolute beneficial ownership of land – compulsory acquisition • Toohey J in Mabo (No 2) held that the Crown was in a fiduciary relationship with native title holders on the basis that: 1. Native title could not be alienated to anyone outside the clan or group except to the Crown 2. The Crown was able to extinguish native title. • He claimed that while the Crown could extinguish native title, if that extinguishment was adverse to the native title holders’ interests or ignored their interests, then a breach of the fiduciary obligation would result and damages would be payable. • Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422- Native title which represents communal, group or individual rights in relation to land or water must, in accordance with s 223 of the Native Title Act: o be possessed under traditional law acknowledged by traditional customs observed by the people concerned. o The people concerned must have a connection with the land or waters… the connection to be identified is one whose source is traditional law and custom, not the common law o Be recognized by the common law of Australia • The Native Title Act authorizes the compulsory acquisition of native title by states, and grants a consequent right to compensation in ‘just terms’ where that occurs • Wik Peoples v Queensland (1996) o Gummow J – ‘the content of native title, its nature and incidents, will vary from one case to another. It may comprise what are classified as personal or communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies… at the opposite extreme, the degree of attachment to the land may be such as to approximate that which would flow from a legal or equitable estate therein.’ o Dealt with native title as though it were propriety in nature • Indicia of property and their relationship to native title: in order to constitute a propriety interest, one must satisfy the right to use and enjoy, the right to alienate and the right to exclude. 1. The right to use and enjoy: o May involve using the land to live, hunt, fish and gather (Mabo) o Both Ward v Western Australia and Hayes v Northern Territory determined that the content of native title included the right ‘to possess, occupy, use and enjoy’ the land. o Commonwealth v Yarmirr – ‘using and enjoying’ was found to extend to the use of water for the purpose of passage from place to place and for the preservation of cultural and spiritual beliefs and practices. o Issue of possibility that the right to use and enjoy native title may be inconsistent with the exercise of common law rights. 2. The right to alienate: o Restrictions affecting alienability do not necessarily result in an interest being regarded as non-proprietary o Thus, although native title’s alienability is very restricted (it can only be alienated within the group or surrendered to the Crown), it does not automatically get denied proprietary status 3. The right to exclude: o Indigenous people have long been able to demonstrate that, as traditional communities, they excluded others from hunting, fishing and gathering • Native title as a ‘bundle of rights’ o Western Australia v Ward – judges held that even where native title recognised an entitlement to exclusive possession, it remained a personal right rather than an interest in land o ‘there may be several kinds of rights and interests in relation to land that exist under traditional law and custom’. • Extinguishment o Native title may be extinguished under both legislation and common law. o Western Australia v Ward – utilised the ‘inconsistency of incidents’ test which requires a comparison between the legal nature and incidents of the statutory right that has been granted and the native title rights which are claimed. o Brown v State of WA (No 2) – held that a mining lease had extinguished native title on those areas of the land concerned that had actually been developed, but had not extinguished native title rights on the undeveloped areas of the land o Hayes v Northern Territory – issue of whether, on compulsory acquisition, native title was extinguished over every square centimetre of land acquired.

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