LAWS3112 Lecture 3

Ownership and Title to Real Property

  1. Encroachment and Mistake
  2. Tenure
  3. Crown Lands (unallocated State lands)
  4. Native Title

1. Mistake of Title and Encroachment of Buildings - PLA Part 11 Div 1 and 2

Improvements made under a Mistake of Title

  • PLA Part 11 Division 2 ss 195-198.
  • Common Law:
    • Generally no remedy where a house is constructed on the wrong lot of land. (This is an application of the law of fixtures.)
    • Brand v Chris Building Society
      • House is built on the wrong block of land – no remedy at common law. Whatever’s attached to the land becomes part of the land (doctrine of fixtures)
    • Exception: owner of the land guilty of fraud (or knowingly allows it to happen), then the courts will apply estoppel and will deny title.

Mistake of Title

s 196: When can an application be made to the Supreme Court for relief under Part 11 Division 2?

Where a person makes a lasting improvement on land owned by another in the genuine but mistaken belief that:

  • (a) such land is the person’s property; or
  • (b) such land is the property of a person on whose behalf the improvement is made or intended to be made;

application may be made to the court for relief under this division.

  • Therefore application may be made for relief if:
    • “lasting improvement” is made to land owned by another, &
    • the improvement is made under “the genuine but mistaken belief” that the improver owned the land or was doing the work for the owner”.
  • Ex parte Karynette Pty Ltd [1984] 2 Qd R 211.
    • The court said that the mistake doesn’t have to be reasonable, it only has to be honest.

s 198 Who may apply for relief to the Supreme Court?
An application for relief may be made by:
(a) any person who made or who is in possession of the improvement;
(b) any person having an estate or interest in the land upon which the improvement was made;
(c) any person claiming to be a party to or entitled to the benefit of any contract or instrument relating to the land or improvement;
(d) the successor in title to a mortgagee or lessee of any person upon whose land the improvement was made; and
(e) the local government within whose area the land or improvement is situated.

  • Therefore, an application for relief can be made by:
    • Improver/possessor of improvement.
    • An interested party;
    • Owner of or person claiming an interest in the land on which the improvement was made.
    • Local authority.

Nature of Relief

s 197 The orders that the court may make include:
(a) vesting in any person the whole or part of the land on which the improvement has been made.
(b) ordering the removal of the improvement either partially or completely;
(c) ordering the payment of compensation in respect of land, any improvements, or any damage caused or likely to be caused by the improvement;
(d) ordering that possession of the land or improvements be given upon such terms and conditions as the court might specify.

  • The Court has a discretion to give a broad range of orders if the court considers that it is just and equitable to do so. Therefore the Court could order:
    • Vesting (transferring) an interest in land.
    • Removal of the Improvement.
    • Compensation.
    • Granting possession of land/improvement on terms.
  • Re Verdugo (1990) Q Conv R 54-347
    • Court gave improver the choice of a variety of remedies.

Encroachment of Buildings - PLA Part 11 Div 1 ss 182-194.

s 184 Application may be made to the Supreme Court for relief by an:

  • adjacent owner
  • encroaching owner

in respect of any encroachment.

s 182 Definitions:

  • “encroachment” by a building - includes overhang or intrusion beneath the soil.
  • “building” - means a substantial building of a permanent character.
  • “adjacent owner”, “encroaching owner”, “owner”.

s 185 Nature of Relief:
(1) Court has a discretion to give a broad range of orders “as it may deem just”

  • Compensation.
  • Conveyance or transfer of an interest in the subject land.
  • Tallon v The Proprietors Metropolitan Towers.
  • Removal of encroachment.

(2) Note the matters the court may consider.

s 186 Determination of Compensation:
(1) Minimum compensation - increased for intentional or negligent encroachment.
(2) Note the matters court must have regard to in determining whether compensation shall exceed the minimum.

2. The Doctrine of Tenure

  • All land belongs to the Crown
  • A person holds land as though they were a tenant of the Crown
  • They don’t hold the land they own – they own an estate in the land
  • Estate deals with a period of time.

Classification of Tenures

(a) Free Tenure

  • Seisin and access to the Royal Courts.
  • Lay
    • Knight Service
    • Serjeanty
    • Socage
  • Spiritual
    • Frankalmoign
    • Divine Service

(b) Unfree Tenure

  • No seisin.
  • Villeinage/copyhold

Historical Tenure

  • Statute of Quia Emptores 1290
    • The creation of new tenures in fee simple was prohibited except by a grant of the Crown.
    • This statute abolished subinfeudation.
  • Tenures Abolition Act 1660
    • Most tenures were converted into free and common socage.
  • The Doctrine of Escheat:
    • Escheat was the reversion of land to the feudal lord from whom it was held when either:
      • A tenant died without heirs, or
      • Where a tenant committed a felony.

Property Law Act and Tenure

  • All lands granted by the Crown in fee simple are granted in free and common socage - freehold tenure.
  • Freehold tenure is without any incidents or obligations for the benefit of the Crown.
  • No liability for quit rent.
  • Escheat is abolished.
  • A fee simple may be transferred without licence or fine and the new owner holds from the
  • Crown in the same manner as the previous tenant held from the Crown.

PLA ss 20 & 21

  • s 20 (1) PLA All tenures created by the Crown upon any grant of an estate in fee simple made after the commencement of this Act shall be taken to be in free and common socage without any incident of tenure for the benefit of the Crown.
  • s 20(2) Where any quit rent issues to the Crown out of any land … such land is released from quit rent. S20(3) In respect of property of any person dying intestate on or after 16 April 1968:
    • Escheat is abolished, and
    • All such property … shall be distributed … as provided by the Succession Act 1981.
  • s 21 Land held of the Crown in fee simple may be assured in fee simple without licence and without fine and the person taking under the assurance shall hold the land of the Crown in the same manner as the land was held before the assurance took effect.

Tenure in Australia

  • The doctrine of tenure has been regarded as the foundation of the Land Law in Australia.

The Adoption of Tenure in Australia

  • Sovereignty, in 18th Century International Law, could be acquired by one of three means:
    • Settlement;
    • Conquest;
    • Treaty (Cession).
  • Ceded territories are those acquired by cession that is by treaty (eg New Zealand) or by purchase. (No treaties were signed in Australia.)
  • Conquered territories are those acquired through conquest (i.e. war).
  • In both ceded and conquered territories the pre-existing law continues because these territories have their own law which remains in force until altered. (Referred to as the doctrine of continuity.)
  • Settled Territories are those acquired through peaceful settlement where the land is terra nullius or unoccupied.
  • Historically Australia was regarded as a settled territory.
  • In a settled territory all the laws of the settling country, in so far as they were applicable to the colony, would be immediately in force at the time of settlement. The theory was that there was no local law in existence.
  • This meant that the doctrine of tenure was imported to Australia.
  • Prior to Mabo the Crown was regarded as the absolute and beneficial owner of all the land (AG v Brown and Milirrpum v Nabalco).

Australia - A Settled Territory

  • Privy Council confirmed Australia was a settled territory under terra nullius in Cooper v Stewart (1889) 14 App Cas 286.
  • Doctrine of tenure. In Milirrpum v Nabalco (1971) 17 FLR 141 re-affirmed that the Crown is the owner of all land in Australia.
  • No agreements or treaties were signed in Australia.
  • Unlike the USA there has been no application of the Doctrine of Discovery.
Milirrpum v Nabalco (1971)
  • First Aboriginal land rights case.
  • An action from Milirrpum that Nabalco had invaded their lands. Was the Aboriginal interest in those lands a proprietary right in the land in terms of the Western understanding.
  • The Gove Land Rights Case.
  • The doctrine of native title did not form part of the law of Australia.
    • Doctrine of Settlement - confirmed.
    • Doctrine of Tenure - confirmed.
  • Any rights that the traditional Indigenous owners may have to their lands were not proprietary rights.
  • The decision was overturned by Mabo (No 2).
Mabo
  • In determining whether the rights of native title could be recognised by the common law, the High Court in Mabo re-examined several legal theories which were at the foundation of Australian land law.
  • The Murray Islanders claimed rights to their traditional lands according to:
    • their local custom,
    • their traditional title, and
    • their actual use and possession of their lands.
  • No claim of a western proprietary right – claim is in traditional use.
Mabo v Queensland (No. 1) (1988) 166 CLR 186.
  • 4:3 Decision
  • High Court finds Queensland Coast Islands Declaratory Act 1985 invalid because it discriminated against the Murray Islanders.
  • The Queensland Act was inconsistent with s 10 of the Racial Discrimination Act 1975 (Cth).
  • A human right to own and inherit property and also a human right not to be arbitrarily deprived of that property (because of International Conventions against Racial Discrimination)
  • This legislation was therefore invalid by reason of s109 of the Constitution.
Mabo v Queensland (No. 2) (1992) 175 CLR 1
  • The High Court of Australia found in a 6:1 decision:
    • Native title, being the rights of the indigenous inhabitants, in accordance with their laws and customs, is recognised by the common law of Australia.
    • The Murray Islanders were entitled, as against the whole world, to the occupation, use and enjoyment of the lands of the Murray Islands (except for the operation of Crown leases and certain land set aside for administrative purposes).
    • The title of the Murray Islanders was stated to be subject to the Queensland government's power to validly extinguish that title.
    • Any extinguishment would be subject to the Racial Discrimination Act 1975 (Cth).
  • The Mabo Court:
    • Accepted that Australia was a settled territory.
    • Rejected terra nullius as being racially discriminatory. Australia was not terra nullius and unoccupied in 1788.
    • Found that native title survived the acquisition of sovereignty by the British in Australia.
    • Rejected the notion of absolute Crown ownership of all land in Australia.
How did the Mabo High Court do this?

1. RE: Sovereignty

  • Actual acquisition of sovereignty was an Act of State and could not be challenged in an Australian court.
  • But the acquisition of sovereignty of Australia did not mean the Crown automatically acquired ownership of all the land. Only ownership of Australia as a country was acquired.

2. RE: Tenure

  • The Court rejected the notion of terra nullius.
  • If Australia were truly unoccupied and then the Crown would acquire the absolute and beneficial ownership of the land as there was no other owner.
  • As Australia was not terra nullius only a modified doctrine of tenure applied in Australia.
  • On the acquisition of sovereignty the Crown acquired a radical title, and not the absolute and beneficial ownership of the land.
  • Native title is a burden on the Crown’s radical title.
  • Therefore, pre-existing land rights of indigenous people survived the Crown’s acquisition of sovereignty without the need for any express recognition by the Crown.

What is a Radical Title?

  • A radical title:
    • Is not complete and absolute ownership of the land.
    • It is a bare title to land.
    • It is the foundation of the Crown’s fundamental right to govern the country.
    • It enables the Crown to grant interests in the land to be held from the Crown.
    • It is also referred to as an ultimate or final title.
    • A radical title is consistent with native title rights and interests which the common law recognises and protects.

Tenure Post-Mabo

  • The High Court acknowledged that the doctrine of tenure is an essential principle of land law in Australia and that it was imported to Australia as part of the common law. (There is no allodial land in Australia.)
  • The doctrine of tenure continues to apply in Australia:
    • however it applies in a limited sense; and
    • it is a modified doctrine of tenure.
  • The Crown holds a radical title to land and not absolute and beneficial ownership.
  • All land holdings that existed prior to Mabo remain.
  • However, Crown land/ State unallocated land is different post Mabo in that it is land that is held under a radical title subject to the existence of non-extinguished native title.
Wik v Queensland (1996) 187 CLR 1
  • Issues: lands that were claimed as pastoral leases; and the lands that were claimed under bauxite mining leases
  • High Court held 4-3:
    • Native title was not necessarily extinguished by pastoral leases.
    • The majority in Wik considered the nature of Crown leases under the Queensland Land Act.
      • Crown leases did not grant exclusive possession and were not leases in the common law sense.
      • Crown leases were statutory grants.
    • Therefore a legal reversionary estate did not vest in the Crown on the grant of the lease.
  • The majority rejected Justice Brennan’s view in Mabo that when a Crown lease is granted:
    • “the tenant acquires possession and the Crown acquires the reversion expectant on the expiry of the term”, and that,
    • the Crown’s title is thus expanded from a mere radical title and on the expiry of the term becomes a plenum dominium i.e. absolute ownership.
  • The Wik majority found that there was nothing in the language of the Land Act that required the Crown to have full and beneficial ownership of the land.
Tenure Post-Wik
  • The Wik majority emphasised that the Crown’s authority to deal with Crown lands was to be found in Australian statutes.
  • The majority focused upon the relevant legislation as the source of Australian land holding system rather than the doctrine of tenure.
  • Consider - after the Wik decision does the Doctrine of Tenure continue to exist in Australia today?
    • Tenure does continue in Australia but has limited relevance
    • Crown’s power is now outlined in the various legislations

State Land Under the Land Act 1994 (Qld) and Crown Leasehold

  • NB: No detailed investigation of the Land Act 1994 (Qld) will be undertaken in this course nor is such knowledge expected for the purpose of examination.
  • Refer to the Learning Guide for a general discussion of this area.

State/Crown Land Holdings in Queensland

  • An important aspect to the doctrine of tenure and Crown/State ownership of land is that this is the foundation of the Land Act 1994 (Qld). This Act establishes the system of Crown/State leasehold, which is the basic tenure of many of the major pastoral properties in Queensland.
  • No equivalent in English law to the system of “Crown leasehold” in Australia.
  • Consider why was a system of Crown leasehold introduced in Australia.

Native Title

  • Aboriginal Lands in Australia Today
  • Approximately 20% of the land mass of Australia is held by Indigenous peoples.

(i) Land Rights Schemes

  • Schemes for the transfer of land to Aboriginal peoples.
    • Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
    • Aboriginal Land Rights Act 1991 and the Torres Strait Islander Land Act 1991 (Qld).
    • Permitted Aboriginal peoples to claim traditional lands in certain circumstances
  • Tenure granted to Indigenous land holders is generally an inalienable fee simple.

(ii) Native Title

  • Mabo v State of Queensland (No. 2) (1992) 175 CLR 1.
  • Native Title Act 1993 (Cth)

Overview: Native Title in Australia

1. Mabo (No. 2) and the NTA.
2. The concept of native title

  • What is meant by native title?

3. Proof of native title

  • How can a claim for native title be claimed?

4. Extinguishment of native title

  • Where does native title exist in Australia?

5. The ‘future dealings regime’ under the NTA.

  • How can native title lands be dealt with today?

1. The Mabo Case and the Native Title Act 1993 (Cth)

Mabo v Queensland (No. 2) (1992) 175 CLR 1.

  • The High Court of Australia found in a 6:1 decision:
    • Native title, being the rights of the indigenous inhabitants, in accordance with their laws and customs, is recognized by the common law of Australia.
    • The Murray Islanders were entitled, as against the whole world, to the occupation, use and enjoyment of the lands of the Murray Islands (except for the operation of Crown leases and certain land set aside for administrative purposes).
    • The title of the Murray Islanders was stated to be subject to the Queensland government's power to validly extinguish that title.
    • Any extinguishment would be subject to the Racial Discrimination Act 1975.

Native Title Act 1993 (Cth)

  • Why did the Commonwealth Government decide to enact this legislation?
  • Issue: Validity of land titles in Australia.
  • Racial Discrimination Act 1975 (Cth)
    • Sections 9 and 10 provide in effect that if Aboriginal people are deprived of certain rights by discriminatory laws then those rights are not lost.
    • Section 9: Makes it unlawful for a person to do any act involving a distinction based on race which has the effect of impairing the enjoyment of any “human right or fundamental freedom”.
    • Section 10: Provides that where by reason of any law persons of a particular race do not enjoy a right to the same extent as persons of another race, then by force of that section the first mentioned persons enjoy that right to the same extent.
  • NTA Objectives - a comprehensive regime:
    • The recognition of native title.
    • The establishment of a means for determining native title:
      • National Native Title Tribunal (in the original NTA).
      • Now Federal Court - determines claims for native title.
    • The validation of “past acts” if they were invalidated because of the existence of native title.
    • The regulation of future dealings affecting native title land.
  • Challenge to the validity of the Commonwealth NTA.
    • Western Australia v The Commonwealth (1994) 183 CLR 373 (The Native Title Act Case).

2. The Concept of Native Title

  • What is native title?
    • Mabo v Queensland (No. 2)
  • “The common law of this country recognises a form of native title which, in cases where it has not been extinguished , reflects the entitlements of the indigenous inhabitants, in accordance with their laws and customs, to their traditional lands.”
    • The common law does not create native title - the common law recognises native title.

(1) Native Title Rights

  • Brennan J in Mabo (No 2):
    • “Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a mater of fact by reference to those laws and customs”.
  • Section 223 Native Title Act 1993

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognized by the common law of Australia.

(2) Without limiting subsection (1), rights and interests in that subsection include hunting, gathering, fishing, rights and interests.

Western Australia v Ward (2002) 213 CLR 1

  • The High Court finds that the definition of native title is contained in the NTA.
  • The High Court does note the similarities between the words of Brennan J in Mabo and the wording of the NTA.
  • Native title in Australia is based on the traditions and customs of the particular community.
    • Thus the nature of native title varies widely. It can amount to an exclusive possession interest in land.
  • Native title is a bundle of rights.
  • Native title does not include mineral rights.

(b) Communal Title

  • Rights are communal (and collective) rights enjoyed by the whole community.
  • Individual rights to land which are derived from the community laws may exist.

(c) Status of Native Title

  • Is native title a property right?
  • Native title is:
    • legal right.
    • a usufructuary right of user.
    • sui generis (the only one of its kind or peculiar to itself).

(d) Transferability of native title

  • Native title is generally an inalienable interest in land.
  • Native title can be surrendered to the Crown.
  • S56 NTA.

(e) The holders of native title

  • Native title, once determined, is to be held and managed by a body corporate. Thus native title holders can:
    • Vest title in the common law holders themselves, that is a prescribed body corporate (non-trustee), or
    • Vest native title in a prescribed body corporate acting as trustee for the common law holders.

(g) Offshore native title

  • Cth of Australia v Yarmirr (2001) Majority HC (Gleeson CJ, Gaudron, Gummow, and Hayne JJ) found:
    • Native title can exist off-shore.
    • The common law of Australia does extend to adjacent sea areas to enable the recognition of native title.
    • That the Native Title Act applied to waters that were subject to Australian jurisdiction.
    • However, no exclusive native title rights nor exclusive control of the claimed area was recognised.
    • And, no Aboriginal commercial rights to the seas or sea resources exist.
    • Fundamental inconsistency between native title rights and the common law public rights of navigation and fishing.

(iii) Proof of Native Title in Australia

  • When will native title be recognised in Australia?
    • Where the elements of proof are satisfied under the Native Title Act 1993 (Cth), and
    • Where native title has not been extinguished or otherwise is not recognisable by the common law.
  • Section 223 Native Title Act 1993

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422

  • Majority: Gleeson CJ, Gummow, Hayne, McHugh & Callinan JJ:
  • High Court decision: no native title rights existed in the Yorta Yorta claim as the claimants had failed to fulfill the requirements of proof under s 223 NTA.
  • The High Court found that:
    • The claimant’s forebears had ceased to occupy their lands in accordance with traditional laws and customs.
    • There was no evidence that the claimants continued to acknowledge and observe the traditional laws and customs.
    • The Court found that there has been an interruption in the continuity of acknowledgment and observance of traditional law and custom.
    • Therefore the Yorta Yorta failed to have native title recognised.
    • Note that this conclusion was not about changes in law and custom over time. It was about the interruption of observance of traditional laws and customs.

To prove native title it is necessary to establish the following:
1. A connection to the land and waters by the traditional laws and customs.

  • Native title rights and interests must have the characteristic that, by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those peoples have a connection to the “land or waters claimed” (s223 (1) (b)). (See Ward at 64.)
  • This requires the claimants to:
    • (a) Identify the content of the traditional rights and interests (in relation to the land and waters) held pursuant to the traditional laws and customs.
    • (b) Demonstrate how through the traditional laws and customs the claim group has a connection with the land or waters. (See Yorta at 56.)
  • Re Connection:
    • The connection must exist pre-sovereignty.
    • The connection must continue substantially uninterrupted from the date of the acquisition of British sovereignty.
    • The connection must still exist today.

2. Native title must be possessed under the traditional laws acknowledged and the traditional customs observed by the claimant group: (s223 (1) (a)). (See Ward and Yorta Yorta.)

  • The claimants must establish a normative body of laws and customs (the traditional laws and customs) pursuant to which native title rights and interests are held in the claim area: NTA s 223(1)(a); Yorta Yorta at [44].
    • It is not sufficient for the laws and customs under which the rights and interests are held to be merely observable patterns of behaviour.
    • The laws and customs must have a normative content; that is, they must provide a standard which regulates the way the society lives: Yorta Yorta at [42].
    • In ascertaining the ‘traditional laws and customs’ it is important to remember that they must also, inter alia, define and regulate rights and interests in land and/or waters.
  • Claimants must prove that:

(a) The laws and customs that the claimants currently observe, and which they rely upon to support the claimed native title rights and interests, are substantially the same as those that were observed by their ancestors at the time the Crown asserted sovereignty over the claim area.
(The only rights recognized are those that find their origin in pre-sovereignty laws and customs.)
(b) The acknowledgment and observance of those laws and customs by members of the claimant society has continued substantially uninterrupted since the date of the acquisition of sovereignty by the Crown.

  • Re traditional laws and customs:
    • The traditional laws and customs must exist pre-sovereignty.
    • The observance of the traditional laws and customs must continue substantially uninterrupted from the date of the acquisition of British sovereignty and the laws and customs must be substantially the same as those observed by their ancestors.
    • The traditional laws and customs must still be observed and acknowledged in the present day.

3. The existence of a body of persons (an identifiable group, community or normative society)that is “united in and by its acknowledgement and observance of a body of laws and customs”: NTA s 223(1)(a); Yorta Yorta at [49].

  • The normative system, that is the system of laws and customs, must be that of a society that existed at the time the Crown asserted sovereignty. The laws and customs cannot be those of a later and different society.
  • Failure to establish this will mean a severance of the communal connection with the land

Re Society:

  • The society must exist pre-sovereignty.
  • The society must continue substantially uninterrupted from the date of the acquisition of British sovereignty.
  • The society must exist today.
  • Proof of Native Title

4. That native title has not been extinguished or is otherwise not recognised by the common law.

  • Native title rights and interests must be “recognised” by the common law of Australia (s223(1) (c)).
  • The onus of proof rests with the applicants.
  • Proof of Native Title

Registration of Native Title Claims

  • Native Title Act requires a physical connection with the land to be registered on the Register of Native Title Claims: s190B(7))
  • Registration (as a registered claimant) allows:
  • Access to the “right to negotiate”.
  • Procedural rights, including the right to enter into certain indigenous land use agreements.
  • If registration is not sought, only a native title determination, then the physical connection test does not have to be met.
  • (iv) Extinguishment of Native Title

Extinguishment at Common Law

Part A: Extinguishment at Common Law

  • Native Title is liable to extinguishment or impairment by government action. (See Mabo.)

(i) Statutory Extinguishment

  • Native title can be extinguished by legislation.
  • Test - the legislation must show a “clear and plain intention” to extinguish. (Mabo and Wik.)
  • Legislation that merely regulates the enjoyment of native title rights, for example extensive legislative controls on fishing, will NOT extinguish native title (Yanner).
  • Extinguishment at Common Law

(ii) Non-Statutory Extinguishment

  • Native title can also be extinguished by non-statutory executive action. (For example, inconsistent Crown grants authorised by legislation, such as the vesting of an estate in fee simple could extinguish native title.)
  • Test: “Inconsistency of incidents” between the grant and native title rights.
  • Approved by the High Court in Western Australia v Ward.
  • See Wik - executive action must show a “clear and plain intention”.
  • Extinguishment at Common Law

Wik v State of Queensland (1996) 187 CLR 1

Extinguishment to the extent of necessary inconsistency.

Extinguishment by inconsistent grant.

  • Non-exclusive possession interests DO NOT NECESSARILY EXTINGUISH native title. (Non-exclusive possession interests include statutory “pastoral or agricultural leases”. )
  • Native title can co-exist with a “non-exclusive possession interest” granted by the Crown.
  • However, where inconsistency exists between the native title rights and the rights conferred by a non-exclusive possession interests then the native title rights must yield, to that extent, to the rights of the pastoral tenant.
  • Inconsistency is the inability of native title to co-exist with the interest granted.
  • Extinguishment at Common Law

Western Australia v Ward (2002)

Extinguishment is by the “inconsistency of incidents” test.

  • An objective inquiry requires the identification of and comparison between two sets of rights.
    • An assessment as to whether the rights granted to the third party were “inconsistent” with the continued existence of the native title rights.
  • Inquiry is about inconsistency of rights, not inconsistency of use.
    • Rejected Justice Brennan’s reference to extinguishment through inconsistent Crown use of the land in Mabo.
  • Only where “inconsistency” occurs between the statutory interest granted and the native title rights will extinguishment occur.

Extinguishment at Common Law can occur by:

  1. Fee Simple (Mabo &Fejo).
  2. Common Law Exclusive Possession Leases (Wilson v Anderson 2002 HCA) .
  3. Partial Extinguishment by Non-Exclusive Possession Interests
  • Post-Wik: No necessary extinguishment by non-exclusive pastoral and agricultural lease: Co-existence.
  • Post-Ward: No necessary extinguishment by mining leases: Co-existence.
    • Power to control access to the land.
    • Any exclusive native title rights will be extinguished.
    • Extinguishment under the NTA

Part B: Extinguishment under the Native Title Act 1993 (Cth)

  • Consider extinguishment under several different time frames and several different categories of “acts”.
  • Extinguishment under the NTA

(i) Confirmation of Extinguishment Regime

  • “Deemed Extinguishment”
  • Extinguishment occurring prior to 23 Dec 1996.
  • (Part 2 Div2B ss 98, 23A, 23B, 23C, 23G, 23JA NTA.)

PEPAs: Previous Exclusive Possession Acts ss23A, 23B, 23C NTA.
PEPAs extinguish native title totally;
PEPAs are acts which are valid or validated;
(i.e. valid pre-1975 acts, “past acts and intermediate period acts”).

  • have occurred on or before 23 December 1996;
  • include the grant or vesting of:
    • a Schedule interest: (s 23B(2)(c)(i) cl 21; 249C NTA);
    • a freehold estate (s 23B(2)(c)(ii) NTA);
    • commercial leases that are neither agricultural or pastoral (s 23B(2)(c)(iii) NTA);
    • residential leases (s 23B(2)(c)(v) NTA);
    • exclusive possession leases (other than mining leases) (s23B(2)(c)(viii) NTA).
    • And, public works (ss247A, 248A).

PNEPAs: Previous Non-Exclusive Possession Acts: 23A, 23F, 23G NTA.

  • PNEPAs extinguish native title to the extent of inconsistency
  • PNEPAs are acts which are valid or validated;
  • (i.e. valid pre-1975 acts, “past acts and intermediate period acts”).
    • have occurred on or before 23 December 1996;
    • consist of the grant of:
  • non-exclusive agricultural leases; and
  • non-exclusive pastoral leases.
  • Extinguishment under the NTA

(ii) Extinguishment in the “Past Acts” and “Intermediate Acts” Regime

Consider why was it necessary to validate “acts”?

  • NTA Validates Commonwealth “acts” that may be invalid because of the native title. (ss 13, 14, 15 NTA.)
  • State legislation validates State “acts”.
  • Validation can result in extinguishment or suspension of native title.
  • Extinguishment under the NTA

(a) Validation of “Past Acts”

  • 1975 - 1994 (Div 2, ss 15, 228 NTA).

(i) What is a “past act”? (S228NTA)
(ii) What is the effect of validation of a “past act”?

  • The effect of validation set out below is subject to NTA “confirmation of extinguishment” provisions.

Extinguishment under the NTA

1. Category A: (ss15(1), 229)

  • Total extinguishment of native title.
    • Freehold and Certain Leases:
    • Commercial, Agricultural, Pastoral, Residential
    • Certain Public Works.

2. Category B: (ss15, 229)

  • Extinguish to the extent of Inconsistency.
  • Leases not in "A" or "C”.

3. Category C: (ss15, 230)

  • Non-Extinguishment Principle applies.
  • Mining Leases.

4. Category D: (ss15, 231,232)

  • Non-Extinguishment Principle applies.
  • All other "acts”.
(b) Validation of “Intermediate Period Acts”

1994-1996; DIV 2A, ss, 21, 232A.

  • What is an intermediate period act?
  • Acts or grants made in this period are validated in accordance with CATEGORIES A-D above.
    • Exception: Pastoral and Agricultural Leaseholds now in Category B.
  • Validation will occur only where the grant area was subject to:
    • A freehold grant or
    • A leasehold grant or
    • Where public works were involved (S21).

(iii) Extinguishment in the “Future Dealings Regime” post-1994
Non-Extinguishment Principle Applies - s238.

Extinguishment can occur:

  1. By future acts after an unopposed non-claimant application ss 24FA-FE.
  2. By agreed extinguishment with native title holders eg. ILUA.
  3. By compulsory acquisition - ss24MD.
  4. By confirmation of extinguishment provisions (until 23 Dec 1996).
  • Not. Examinable.

(v) Future Dealings Regime in the NTA
The NTA instituted a new regime to govern future dealings with native title rights and interests after the NTA came into force.

Australian Native Title Timeline

Date Case/Legislation
1971 Milirrpum v Nabalco
1975 Racial Discrimination Act
1988 Mabo v Queensland (No. 1)
1992 Mabo v Queensland(No 2)
1994 Native Title Act 1993 (Cth)
1994 Western Australia v Cth
1996 Wik v Queensland
1997-8 10 Point Plan/ NTA Amended
1998 Fejo v Northern Territory
1999 Yanner v Eaton
2002 Western Australia v Ward
2002 Yorta Yorta v Victoria
2008 Bodney v Bennell ('Noongar')
2008 NT v Arnhem Land Trust ('Blue Mud Bay')