Post on 15-Jul-2015
Native Title & Foundations of
Land Title in Australia
Kate Galloway 2016
Evolution of native title:
according to Anglo-Australian
law
sovereigntyReception
of lawDoctrine of tenure
MaboNative
Title Act
Terra nulliusDesert &
uncultivatedLand rights
Contrast Aboriginal and Torres
Strait Islander Australians’
perspective
Never ceded sovereignty, never
ceded land, law continues…
SOVEREIGNTY
A claim at international law
Sovereignty
Power to govern a territory
Ownership of land
How to become sovereign:
18th-19th C international law
conquest
cession
settlement
annexation
Through European eyes: inhabited
country…
Image K Galloway
“Uninhabited” country terra nullius
Image K Galloway
Deeming Australia terra nullius =
settlement = sovereignty
WHAT PROPERTY LAW
APPLIED?
Having shown that England could claim Australia at international
law…
The collision of two systems of
landholding
Customary ownership (existing)
Feudal doctrine of tenure (imported English law)
“Uninhabited” country desert &
uncultivated ~ terra nullius…
English law reflected
international law
Image K Galloway
What property law applied?
Mode of acquisition of
land
Law that applied
Conquered Native law, subject to any changes by
conqueror
Ceded Native law, subject to any changes by
sovereign
Desert & uncultivated Settled English law subject to any needs particular
to the colony itself…
English property law: the doctrine
of tenure (in a nutshell)
King
lords
tenants
Literally owns all the
land: ‘lord paramount’
The only possibility
to hold land is via
crown grant
IF:
1. Doctrine of tenure applies
2. King literally owns all the land
3. The only type of possible title is via a
grant from the king,
Then…
As a question of logic, can this system of
land title possibly recognise pre-existing
land ownership?
Customary tenures locked out of
Anglo-Australian land law
Crown land (not yet granted)
Freehold land
(granted by crown)
Customary tenures
MABO V QLD (NO 2)
The seismic shift
Eddie Mabo: I know who owns my
land, and it’s not you…*
Edward Koiki Mabo (1936–1992) Original hand-drawn map … 1981–1992 ink & coloured felt-tip pen
on paper 32.5 x 20.4cm | Manuscript Collection, MS 9518 | National Library of Australia |
http://nationaltreasures.nla.gov.au/index/Treasures/item/nla.ms-ms9518-1-1x-s1
*Not a quote
Entire govt(& court!)
invalidated
Overturn sovereignty
Overturn terra nullius
‘skeleton’ of land law broken
No basis for English legal
system
Reject ‘settlement’ as a myth
Two problems (for the law)
Solving the problem
Confirm sovereignty
International law ‘terra nullius’ still
applies
Update common law
Aust was ‘settled but occupied’
Split crown rights: sovereignty not
ownership
Australian doctrine of tenure: supports
native title
Making space for native title
Radical title
• Belongs to crown
• Includes power to grant land
Full beneficial title
• Belongs to traditional owners
• Can be extinguished
Once native title extinguished…
Crown has full title
Connection with land
Not extinguished
Native title
Grant of fee simple (invokes doctrine of tenure)
Native title extinguished
Mabo
Native Title Act
NTA amendments
YortaYorta
etc
Challenging native title Decision
Constitutional? WA v Cth
Can states overrule native title? WA v Cth
Implied extinguishment? WA v Cth
Crown sovereignty vs title? Fejo
Pastoral lease grant change
underlying title?
Wik
Connection extinguishment Yorta Yorta
http://www.nntt.gov.au/Maps/RNTC_map.jpg
http://www.nntt.gov.au/Maps/Determinations_map.jpg
Revise concepts
sovereigntyReception
of lawDoctrine of tenure
MaboNative
Title Act
Terra nulliusDesert &
uncultivatedLand rights
One last reflection…
"If we could move away as a nation from
treating Aboriginal people as the final hurdle
in a development consent process, to
placing them up front, then I think we might
get somewhere in northern Australia.”
Northern Land Council Chief Executive, Joe Morrison, on
the Ord Valley sugar industry development
http://www.abc.net.au/news/2016-01-29/stall-over-development-of-
sugar-industry-in-ord-valley/7124630