LAW 1506 Lecture Notes - Lecture 4: Pastoral Lease, Terra Nullius, Beneficial Ownership
23 May 2018
School
Department
Course
Professor
History of native title
1. colonisation in 1788,
a. At colonisation in 1788, the British asserted sovereignty on the basis of the international law
concept of terra nullius
b. Common law principles held that a mere change in sovereignty
through conquest of cession was not meant to be presumed to disturb the rights of
traditional owners (Amodu Tijani Case) . However, if territory was practically unoccupied
without settled inhabitants or settled law, there were no owners, hence land could be
acquired through settlement.
c. English law was imported into Australia. The doctrine of tenure applied and native title was
automatically extinguished as the crown had both sovereignty and full beneficial
ownership (AG v Brown)
2. Whilst it was recognised in Milirrpum v Nabalco that Aboriginal people had their own 'subtle
and elaborate system of social customs; these customs lacked the essential characteristics of a
property right (alienability/ exclusivity). Native title was therefore denied.
Steps to extinguish or establish NT
1. Mabo (no 2) held that upon assertion of sovereignty, crown acquired a radical title with native
title surviving, and not being automatically extinguished by, colonisation. Overturned AG v
Brown.
a. Once the crown made a land grant, land held on the basis of tenure, and the crown got full
beneficial ownership of that land. Land not granted remained isn't subject to tenure and
therefore remains under native title.
b. Once native title has been extinguished, it cannot be revived except in very limited
circumstances
2. What type of land is it?
a. Native title may exist on crown land and waters
a. Unalienated Crown land public reserves;
b. Some types of pastoral leases;
c. Land held by government agencies;
d. Land held for Aboriginal communities; and
e. Seas, reefs, rivers and other waters that are not privately owned.
3. Has the native title been extinguished? NTA Div 2B- go through each possible act of
extinguishment in chronological order- look for inconsistent dealings
a. NTA s 23B- NT extinguished by exclusive acts of possession - such rights are inconsistent with
Native Title
a. NTA s 23C- NT extinguished by acts of Cth which give exclusive use/possession (exclusive
Pastoral leases)
b. Look to legislation conferring pastoral lease- need a clear and plain intention to be exclusive
(exclude NT/ others) (Wik)
1. Fejo- grant of freehold estate in fee simple extinguishes NT. Even if abandoned and
returned to crown, connection is severed- NT can't be revived.
b. If non-exclusive- NTA s 23F- NT may not be extinguished- co-exists to extent of inconsistency
a. Pastoral leases- NT can coexist to extent of inconsistency Wik; Ward
b. Fishing: not an exclusive possession act- sovereignty over sea still subject rights to passage
for public, freedom of navigation- thus, commercial fishing licence not exclusive The
Commonwealth v Yarmirr (2001)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
However, if territory was practically unoccupied without settled inhabitants or settled law, there were no owners, hence land could be acquired through settlement: english law was imported into australia. Mabo (no 2) held that upon assertion of sovereignty, crown acquired a radical title with native title surviving, and not being automatically extinguished by, colonisation. Brown: once the crown made a land grant, land held on the basis of tenure, and the crown got full beneficial ownership of that land. Nta div 2b- go through each possible act of extinguishment in chronological order- look for inconsistent dealings: nta s 23b- nt extinguished by exclusive acts of possession - such rights are inconsistent with. Native title: nta s 23c- nt extinguished by acts of cth which give exclusive use/possession (exclusive. Pastoral leases: look to legislation conferring pastoral lease- need a clear and plain intention to be exclusive (exclude nt/ others) (wik, fejo- grant of freehold estate in fee simple extinguishes nt.
