Tutorial 1 (week 3) - Tenure and Estates and Native Title



Tutorial 1 (week 3) - Tenure and Estates and Native Title (Des Finnigan “Desmond.Finnigan”)Skills QuestionRead Attorney-General v Brown. Compare the way in which the Court in this case characterises and describes the doctrine of tenure with Brennan J’s approach in Mabo (No. 2). In particular, how was the Crown’s interest in land characterised in each decision? How similar were the underlying arguments presented to the Court? AG v BrownFacts60 acres of land at NewcastleBrown Tenant of DumaresqDumaresq had a crown grantIt had a reservation for all coalThus D and B had no rights to callB dug coalB’s Barrister was WindeyerAG sued B in intrusion (perhaps, trespass)GroundsThis is not the Crown’s landThe Crown did not have rights to the land, or right to limit useWhilst the crown had sovereignty, and could grant landAs well as a dominium directumBut it did not acquire the land itselfAnd could not control the “waste”CourtThe “waste” vested in 1788And could grantAny land anyone holds in the colony, they hold “of” the crownThis is a fiction, but one that works, and is relied onIn England, the fiction is less realIn a newly discovered country, crown ownership is not a fiction, it is owned by reason of declaration of colonyAll statutes since 1788 in NSW with respect to land assume the crown is the owner of the landCrown has both sovereignty and ownershipWhat we have in Australia is “feudal tenure” – bigger and better than in EnglandIn NSW, in 1847, crown ownership was “no fiction”In AG v Brown, tenure in Australia is held to by more “real” than in the UK, since at the time of settlement, land did transfer, in full, to the commonwealth, where in the UK the transfer was a legal fiction. As such, all land in Australia was crown land, which could be granted. However, this original transfer of land extinguished all previous claims on land in Australia: actually, since Australia was considered “Terra Nullius” it was not thought to extinguish native title, but to create crown title where there was none before.In Mabo (No. 2), the political context was changing: there continued to be a greater push towards recognizing native title rights (although the Gove land rights case failed, native title had been found in PNG). There were two interests here, the crown’s paramount lordship over the land and the indigenous, native title right to the land. Since tenure could not be removed (so as not to “fracture the skeleton of the common law”, radical title was invented. Here, the crown has sovereignty over all land, and power to exercise land rights, but it does not have literal “ownership” over every parcel of land in Australia. The right is not exercised until land is granted. Therefore, until fees simple are created, native title right is not extinguished. This fiction of “radical title” allowed tenure and native title to coexist.There was a shift, from AG to Mabo, in the crown’s interest, from being an actual land right, with an actual interest in every plot of land, to radical title, where there was a right to exercise power, but no actual interest in every specific plot until the power is exercised. The arguments posed to the bench in both cases were almost identical, but attitudes and international norms had changed, and precedents had occurred which would allow for native title.Tutorial QuestionsDescribe the doctrine of tenure. What is an allodial system of land holding? How does it differ from land held under the doctrine of tenure?Tenure occurs whereby land is owned “of” a third party (in Australia, the crown, who is a paramount lord: any other interestes are held “of” the crown).No-one holds land absolutelyTenure describes the relationship between tenant and lordAn allodial system of land holding is where land is owned absolutely.How does the doctrine of native title relate to that of the doctrine of tenure? To what extent is the former reliant on the latter?They are linked, since the classical application of the tenurial system would see that native title was extinguished upon Australia’s settlement and the arrival of the system of tenure.Native title is sui generis.Native title act regulates how it worksNative title is now reliant on tenure, since Radical Title allows it to exist. However, it may be that it would be stronger in an allodial system.What does it mean to say that native title is not ‘of’ the common law, but recognised by the common law? Do you agree with this statement? If not, why not?Land held “of” the common law is held according to the doctrine of tenure, e.g. “of” the crown..Native title land is recognized according to tradition, and is outside of the tenurial system (it is not “of” the crown, (not devolved)). As such, the common law does not create the native title right to land, but merely recognizes the right created outside of the common law system, and seeks to preserve it.It comes form another legal systemIt is given recognition and form in the common law if it conforms with the requirements of native title docrine:Continuouse and uninterrupted useCustoms and traditions must be shown to be excercised in substantially the same manner since sovereignty (1788)It must be held by a group descended from the original holdersAccording to the doctrine of estates, one does not own the land, but an estate in land. A fee simple estate is considered the most ample or complete estate in land. What does it mean to have an estate in fee simple? What are the characteristics of an estate in fee simple? What can the owner of a fee simple estate in land do with the land? What kind of restrictions are there on ownership? Given these restrictions, do owners still have exclusive possession?An estate in fee simple is an estate owned directly “of” the crownIt is a bundly of rights in respect of land, and has the following characteristicsIt is inheritable (“fee”) and is thus of uncertain durationIt has no restrictions on the inheritance (“simple”)It comes with 11 rights, the most important of which are occupation, possession and alienationbilityIt has the following limitations:Others can enter the land before being asked to leaveAny rights reserved by original grantAnything that is “most excellent”Things vested in the crown by legislationE.g. mining legislationPetroleum legislationOwners have exclusive possession unless another right interferes with it. Does this make it non-exclusive?Why does an estate in fee simple extinguish native title? Once the commonwealth excercizes its radical title and grants land, any land right outside of the common law is superseded. Radical title becomes actual ownership, and, thus, native title is extinguished.Excercising “radical title” bring the land within the common lawIt gives exclusive possession that is legally inconsistant with the continuation of native titleOnce extinguishment occurs, it is forever, if a fee simple ends, native title does not reviveDo you think native title can be characterised as a proprietary interest? What incidents of property does native title have? What are the consequences of recognising or not recognising native title as property? I do not think it is proprietary (No, according to Dean, and Gaudron)Whilst the land may be used, it is inaleanable, and it may only be used in specific ways e.g. no commercial use. It is also communal.Since native title is not property, the incentive to fight for it is diminished. Note, in countries such as Canada, it has been seen as a proprietary right, to great successs. ................
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