MLL327 Study Guide - Final Guide: Native Title Act 1993, Terra Nullius, Allodial Title
24 May 2018
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Department
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Property Law Topic Five
• appreciate the different cultural foundations of native title;
Aorigial oership is priaril a spiritual affair rather tha a udle of rights Brea J i Re v Toohey)
Pereptio of a soiall ostituted fat as ell as oprisig arious assortets of artifiiall defied
jural rights Yanner v Eaton)
Common law recognises the spiritual, cultural and social connection with the land
• Wide range of rights are recognised as native title
– S 223(2) of the Native Title Act 1993 (Cth)
• Hunting rights
• Gathering rights
• Fishing rights
– Spiritual ceremonies
– Sacred sites
– Occupation/permanent possession
– Nomadic wandering
– Right to land or water not chattels
PRE MABO
• First litigation on native title in Australia
• The doctrine of aboriginal title was rejected
• At oloisatio of Australia lad as desert ad uultiated Blakstoe
• Land terra nullius: ownership vested in Crown in absence of other owners
• Native title interests not proprietary due to absence of:
– Use and enjoyment
– Right to exclude
– Right to alienate
SEE MABO ONE AND TWO
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• understand the type of rights and interests that are generally comprised within a native title interest
and
FEATURES
• (1) Native title rights and interests can only be possessed by the indigenous inhabitants and their
descendants (not alienable)
– Not and institution of common law and not alienable in terms of the principles of the
common law - alienability depends on customary law
– Right to alienate is not a customary practice recognised by indigenous communities
– Crown has capacity to accept surrender of native title
– If surredered o purhase or olutaril to Cro, the Cros radial title expands to full
ownership
• (2) Native title, being recognised by the common law, may be protected by legal or equitable
remedies, whether proprietary, personal or usufructuaries in nature and whether possessed by
community, group or individual
– Incidents of native title to be determined by laws and customs of community
– Laws and customs must not be repugnant to natural justice, equity and good conscience
– Law and custom may change
• (3) If indigenous people are in possession/entitled to possession of land under native title, their
possession may be protected /entitlement may be enforced by a representative action brought on
behalf of the people/sub-group/individual
– Those rights are carved out of native title
– Native title ensures for benefit of community as a whole/sub-groups or individual
• (4) Native title = property right because native title:
– (a) relates to land; and
– (b) is enforceable against other members of society (effective @ state of Qld and the whole
world (per Brennan J))
TERMINATION OF NATIVE TITLE
• Native title will expire if the:
– claimant group has not continuously existed as an identifiable community with traditional
rights and interests since acquisition of sovereignty by the Crown
– community abandons its traditional laws and customs
– community abandons its connection with the land
• Aboriginal people may surrender title to Crown
• Native title may be extinguished by the Crown in three situations, namely by:
– laws or executive acts which extinguish native title;
– laws or executive acts which creates rights in third parties over land previously subject to
native title; and
– laws or executive acts by which the Crown acquires full beneficial ownership, such as
compulsory acquisition or public buildings
EXTINGUISHING NATIVE TITLE
• Native title was extinguished by Crown grants and legislation on an ad hoc basis
• NT is extinguished by:
– alienation of land by the Crown granting an interest which is inconsistent with continuous
exercise of NT (ex grant of freehold or lease conferring the right to exclusive possession)
– appropriation of land for use by Crown which appropriation is inconsistent with continuous
exercise of native title (ex roads, railroads and buildings)
– loss of connection ith lad the Tries cessation to acknowledge laws or observe
customs
– surrender of native title to the Crown voluntarily by clans or groups who have a connection
to land by traditional custom/law
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find more resources at oneclass.com
• NT is not extinguished by:
– Native welfare legislation which established reserves did not extinguish native title but is
consistent with continued enjoyment of native title
– Regulation of native title does not necessarily amount to extinguishment (legislative control
on fishing)
• Upon extinguishment the Crown becomes absolute beneficial owner
LEGISLATIVE POWERS WITH REGARD TO NATIVE TITLE
• Native title rights are not entrenched
• Native title rights can be dealt with, expropriated or extinguished by Commonwealth, State or
Territorial legislation
• Clear and unambiguous words must be used by the legislature to extinguish native title
• Constraints on legislative powers to extinguish or diminish native title:
– S 51 (xxxi) of the Constitution requires on the federal level that acquisition of property takes
plae o `just ters
– Legislative extinguishment of native title constitutes an expropriation
– Racial Discrimination Act represents an important restraint on State or Territorial legislative
power to extinguish or diminish native title
– Grants after the RDA which extinguished Native title must entitle holder to same
compensation as common law title
SUSCEPTIBLE TO DESTRUCTION
• Susceptibility of native title to destruction is founded upon:
– (a) the fact that native title was recognised in 1992 and superimposed on a framework
already populated by a multitude of Crown grants;
– (b) the fact that native title did not acquire an equal status with other Crown grants –
encumbrance over radical title rather than a grant derivative from Crown
– Native title is not a property right (even if personal it is still a right recognised by common
law)
– Not an institution of common law
• Whenever the Crown issued a grant native title is affected
• Grants issued after 1975 could not extinguish native title in a discriminatory way (RDA).
• Same form of compensation is required.
FEJO V COMMONWEALTH
FACTS
• Leases were granted subject to condition
that upon completion of development in
terms of lease and payment of money the
lease can be surrendered in exchange for a
freehold title at no further cost
• High court held that grant of a fee simple
extinguished native title:
• Natie title is etiguished the gat of
a fee simple. And it is extinguished because
the rights that are given by a grant in fee
simple are rights that are inconsistent with
the native title holders continuing to hold
any rights or interests which together make
up atie title. A estate i fee siple is fo
almost all practical purposes, the
euialet of full oeship of the lad
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Common law recognises the spiritual, cultural and social connection with the land: wide range of rights are recognised as native title. S 223(2) of the native title act 1993 (cth: hunting rights, gathering rights. Right to land or water not chattels. At (cid:272)olo(cid:374)isatio(cid:374) of australia la(cid:374)d (cid:449)as (cid:862)desert a(cid:374)d u(cid:374)(cid:272)ulti(cid:448)ated(cid:863) (cid:894)bla(cid:272)ksto(cid:374)e(cid:895) Land terra nullius: ownership vested in crown in absence of other owners: native title interests not proprietary due to absence of: See mabo one and two understand the type of rights and interests that are generally comprised within a native title interest and. Features (1) native title rights and interests can only be possessed by the indigenous inhabitants and their descendants (not alienable) Not and institution of common law and not alienable in terms of the principles of the common law - alienability depends on customary law. Right to alienate is not a customary practice recognised by indigenous communities. Crown has capacity to accept surrender of native title.
