LLB220 Lecture Notes - Lecture 5: Yolngu, Aboriginal Protection Board, Arnhem Land
Week 5 – The Doctrines of Tenure & Estates and Native Title
• Property doctrines introduced when the British Crown claimed Australia → imported
English common law
• Mabo (No 2) eogised Idigeous oetio ith lad ad gae ise to atie
title. This haged oo la i the sese that it eogised ights ad iteests
in land that went beyond the previous understanding
• Today our legal system recognises 3 basic sources of rights in relation to land:
1. Common law bought from England
2. Enactments of the local legislature and decisions of local courts
3. Native title
… ee eplaatio of the oigial of lad ights aot aoid siultaeousl poidig a
narrative about the birth of a society, and the prehistory from which it emerged, for the
easo that []o set of legal istitutios o pesiptios eists apat fo the aaties
that loate it ad gie it eaig … it is i the doties of lad la that those aaties
fid thei leaest epessio.
- Beda Edgeoth, Butts Lad La, th ed
Common Law and Principles of Reception
• International law allows sovereignty to be acquired by (inter alia):
- Cession (transfer of territory from one state to another – i.e. Hong Kong)
- Conquest
- Occupation of territory that was terra nullius (empty) – i.e. Clipperton Island (or
settlement)
• If land was acquired by conquest or cession, the laws of the conquered remained in
place until replaced by the laws of the invader
• Australia was treated as settlement
• Settlement applied to land that was unoccupied or unpopulated
• Terra nullius → land belonging to no one
• Indigenous people inhabited Australia 40,000-60,000 years before the arrival of
Europeans
• Expanded doctrine of terra nullius:
- Lad ould e osideed aat hee the ihaitats ee osideed so lo
on the scale of social organization that their usages and conceptions of rights and
duties ae ot to e eoiled ith the legal ideas of iilized soiet ‘e
Southern Rhodesia (1919) AC 211)
- i.e. no settled inhabitants or no settled law
• This has since been proved incorrect
find more resources at oneclass.com
find more resources at oneclass.com
• A penal colony was established in 1788 with the arrival of the First Fleet.
Sovereignty considered to be established then.
• Doctrine of Reception
- Australian Court Act 1828 (Imp), s. 24: all statutes and common law in force in
England applicable to New South Wales ad Va Diees Lad
• This included the principle that all the lands of Australia were vested in the crown:
Attorney-General (NSW) v Brown (1847) 2 SCR (NSW) App 30
• Folloig , lad as gated to Bitish settles ude Co Gats, ased o
the doctrines of tenure and estates
Doctrine of Tenure
Background and History
• A sste of lad holdig hee the Kig hiself holds land which is in every sense
his o Pollok ad Maitlad
• Roots in feudalism and seisin
• Feudalism → key structure of social organisation in the Middle Ages
• Norman Conquest of England occurred in 1066
- William, Duke of Normandy, invaded and won battle of Hastings.
- Became the first Norman king of England, replacing the prior Anglo-Saxon kings
- Many Anglo-Saxon nobles continued to hold land, swore fealty to William
- Weak looked to the powerful for protection, sometimes this involved
transferring their land to the powerful
- For the purpose of entrenching feudalism, estates were redistributed. The King
retained absolute ownership and his subjects held their estates by virtue of
feoffment with livery of seisin (tenancy)
- Two central principles established:
1. Doctrine of tenure → upon what terms is this land held?
2. Doctrine of estates → for how long is this land held?
• In later centuries, evolved into the idea of tenure
- All land belonged to the Crown following the Conquest, but it was granted to
back to nobles, who then distributed grants to others. All land held from the
Crown
- I.e. only the Crown owned land allodially
- Duties (or services) came with the land → without duties this amounted to
absolute ownership (allodial title)
- The lord also had a right to incidents
- Crown is both monarch and ultimate owner of all land in the kingdom
- Has been called a legal fiction
- May have been advanced to justify seizure and redistribution of land in Ireland
and Scotland in the 17th and 18th centuries
find more resources at oneclass.com
find more resources at oneclass.com
• Instead of ownership they held possession – governed by relationship between lord
and vassal
- Knight tenure
- Socage tenure – payment of money
Tenurial pyramid (CB 87)
Below the tenurial pyramid – unfree tenure, manorial law and villeinage
• The lod of the aos relationship with the villagers and peasants was not
recognised by the feudal framework
• The lord of the manor held the lowest recognizable position
• Villages didt hold a iteest of the kigs
• Lord of the manor → uasi Kig → developed and regulated the lives of the
villagers
• The seies oed a fee teat ee etai
• “eie of ufee teat was variable and uncertain
• Villages ouldt tasfe lad iteests o oe to a e illage ithout the
consent of the lord
• Compliance ensured through taxes and fines
• This teue ko as illeiage→ later known as copyhold tenure
• Copyhold tenure abolished in 1922 in the UK but never imported to Australia
Historical development of free tenures
• English Statute of Quia Emptores passed in 1290 → instead of creating more rungs
on the tenurial ladder, a new tenant would simply step into the shoes of the
previous tenant
• Tenant could alienate land without permission of the lord
• Tenures Abolition Act 1660 abolished MOST feudal incidents
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Week 5 the doctrines of tenure & estates and native title: property doctrines introduced when the british crown claimed australia imported. English common law: mabo (no 2) (cid:396)e(cid:272)og(cid:374)ised i(cid:374)dige(cid:374)ous (cid:272)o(cid:374)(cid:374)e(cid:272)tio(cid:374) (cid:449)ith la(cid:374)d a(cid:374)d ga(cid:448)e (cid:396)ise to (cid:858)(cid:374)ati(cid:448)e title(cid:859). B(cid:396)e(cid:374)da(cid:374) edge(cid:449)o(cid:396)th, butt(cid:859)s la(cid:374)d la(cid:449), (cid:1011)th ed. International law allows sovereignty to be acquired by (inter alia): Cession (transfer of territory from one state to another i. e. hong kong) Occupation of territory that was terra nullius (empty) i. e. clipperton island (or settlement) Indigenous people inhabited australia 40,000-60,000 years before the arrival of. Southern rhodesia (1919) ac 211) i. e. no settled inhabitants or no settled law: this has since been proved incorrect, a penal colony was established in 1788 with the arrival of the first fleet. Sovereignty considered to be established then: doctrine of reception. Australian court act 1828 (imp), s. 24: all statutes and common law in force in.
