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. Judge held that extinguishment extended only to the land necessary or incidental to the use of the building or work. o Mabo (No 2) – ordinary common law leases extinguished native title o Wik Peoples v QLD – pastoral leases don’t necessarily extinguish native title. The particular claim of native title and the terms of the pastoral lease would need to be considered. o Lease of reserve (WA v Ward) and perpetual leases (Wilson v Anderson) extinguished native title • Native Title Act o Aimed to deal with the legal issues raised by the recognition of native title o Full force and effect was given to all Crown grants made before 1 January 1994 or legislation made prior to 1 July 1993 where there was invalidity caused by the existence of native title. – ordinary title prevailed. o S 223 defines native title and native title rights – reflecting the definition given in Mabo (no 2) o Provides for mechanisms to determine native title – the National Native Title Tribunal and the Federal Court o The tribunal can only determine native title in circumstances where the parties agree, or seek to come to agreement, by virtue of mediation. Where this doesn’t work – go to Federal Court • S 17 of the Act – 2 grounds for the payment of compensation when native title is extinguished by virtue of a past act 1. Where native title is extinguished by category A or B past act; o Compensation payable on ‘just terms’. o The compensation is for the ‘loss, diminution, impairment or other effect… on their native title rights.’ (s 51(1)) 2. Where native title has been affected by a category C past act (a mining lease) or a category D past act (any past act not included in categories A, B or C). o If compensation would’ve been available had the native title holder held ordinary title rather than native title, then compensation would be determined based on the compensation that would’ve applied to an ordinary title holder. o Where extinguishment would’ve been impossible had the native title holder been the holder of an ordinary title, compensation will be available on just terms. • Compensation is to be paid only by the relevant government – usually monetary
Theories of Property
Philosophical bases of property • Property is the institution which determines the precise nature and distribution of the means of production, consumption and exchange. In doing so, it is the primary determinate of wealth and the means of sustenance
The Labour Theory of Property • John Locke – first philosopher to ground the institution of private property exclusively in labour • People are entitled to own both what they produce by means of their own efforts and whatever they have laboured on – central to this argument is individualism • Insofar as an individual has an inviolable property right in his or her own person, that individual has an analogous right in his or her labour • The labourer is justified in keeping the thing worked on because he/she has ‘added something to them more than nature… had done’. • Based on natural rights – legal rights to property, to the extent that they derive from these natural acts, pre-exist the positive laws of any state • You can acquire as much property as you want by labouring on it subject to 2 limits: 1. There must be ‘enough, and as good, left in common for others’ o As long as others suffer no reduced opportunities to acquire property as a result of the initial appropriation 2. No one should appropriate so much property as would ‘spoil’ in his or her possession • Locke makes no distinction between the mixing of labour with something and the mere act of appropriation • The theory seems blind to the possibility of collective or communal productive use of land beyond the narrow example of individual agriculture • Locke regards the domestic labour of married women to give rise to property rights in their husband • The theory de-legitimates non-economic values by placing an unqualified faith in the productive use of land: unused land, or wilderness, is waste, lacking in value, which can only be introduced by labour. • Environmental values have no place in this productivist theory – the land is something to be exploited or owned • While the theory’s flaws may make it an unsatisfactory single rationale for a just property regime; this does not undermine its claim to offer one basis among many for a particular distribution of property rights
Utilitarian justifications for private property • Rejects the natural rights argument as too unstable a basis for justifying a private property regime • Argues that a more secure footing is the empirical more verifiable proposition that the objective of all human beings is to maximise their own happiness – leads to the normative claim that good society should be organised to achieve the greatest happiness for the greatest number of its people • Jeremy Bentham – property is conceived as a means to achieving happiness, because people need and want to possess and consume various things to achieve some measure of happiness • Four subsidiary principles: 1. Subsistence 2. Security o The insecurity of the lawless state of nature undermines any possibility of industry, for its fruits may be appropriated by those who have not laboured – if law guarantees security in the fruits of labour then industry will flourish. It is therefore law that creates property, not labour. 3. Abundance 4. Equality o Don’t achieve equality in the distribution of property. o Where people are secure in the fruits of their labour, subsistence and abundance will increase, which will lead to a greater level of equality among citizens o In capitalist societies, a more equal distribution of wealth prevails with greater access for all