Class 2: NT & Crown Grants

Required Readings:
Moodle: NT & Crown Grants
S&N: 3.3-3.20, 3.75 3.97
Native Title & Crown Land Grants in NSW
Moodle
Arthur Phillip proclaimed NSW Crown Land belonging to the King
Merely a political assertion some land owned by indigenous people
Under assumption that all land was Crown land- governments made hundreds of
thousands of land grants to citizens
Typically- a grant of freehold fee simple
Once a citizen has a land title they are free to use it for their own benefit deal with it
however they please
The Crown can only get freehold titles back by compulsory acquisition =Constitution s
51(xxxi)
State constitution has no provision protecting private property from government
expropriation and so they do not have an obligation to pay compensation extremely
contentious the government only does so with caution
Old System Information and Search Guide March 2013
Land Title Systems
Three land titling systems
1. Crown land
2. Old system title (common law)
3. Torrens title (Real Property Act)
Crown Land
o The land of an acquired colony that belongs to the reigning monarch
o Presumption applied Captain Arthur Phillip
o Only the Crown could sell or distribute land
Old System Title
o From 1792 until the introduction of the Torrens Title System in 1863 land
ownership in nSW was based on the English common law system of title known
as Old System
o Old system land title is a matter of quality: the title is good, but only if a better
one cannot be established
o It is a chain of evidence
o In order to establish land ownership the searcher must collect and examine an
unbroken chain of documents from the original Crown grant up to the present
day
o A separate deed is prepared every time land is dealt with whether subdivided,
mortgaged or leased
o More chance of these documents being lost
o The Conveyancing Act 1919 recognises the difficulties cut off period of 30
years good root of title to prove ownership
o Problems for landowners when subdivided
Torrens Title
o Introduced in 1863 to combat problems of uncertainty, complexity and cost
associated with Old System title
o The system was so effective spread to other Australian states
o TTS maintains and guarantees the Torrens Title Register
o Individual land transactions are mandatorily lodged with LIP using standardised
forms
o The new owner is issued with a single document called a Certificate of Title which
supports their ownership
o The register is maintained in the Integrated Titling System

Unlike the Old System, TTS tells us the current state of ownership and lists any
encumbrances affecting land
The First Crown Grants
Crown grants are issued subject to various exceptions, reservations and conditions and
the title that develops from the grant will inherit these.
These conditions are not written out in full on subsequent titles so if you need to
investigate consult the original Crown grant
Exceptions
o Reserves of gold, silver, minerals
o Land below a specified depth
o High water mark tidal
Reservations:
o Construct roads, bridges,
o Take and remove indigenous timber
Conditions:
o Grants sometimes contain conditions which impose positive or negative
obligations
o Maintenance of a seawall etc
Quit Rents:
o Land tax imposed on freehold or leased land
Reservations of gold and silver
Reservations of coal
100ft reservation from the mean high water mark
Exceptions to Crown grants issued after the Real Property Act 1862
o

Fragmentation in a Spatial Dimension: The Doctrine of Tenure

3.3
Roots of the doctrine of tenure lie in the:
Economic &
Political interests
Of the feudal system
The term refers to a mode of holding land whereby one person (tenant) holds lands
from another subject to the performance of certain obligations
Tenants who held directly from the Crown were known as tenants in Chief
Only the Crown owned land absolutely, as it alone held of no other
Presumed that all land titles were held by the Kings subjects as a result of a royal
grant.
The obligations of tenants generated complex feudal ties between King and tenant
in Chief
o A tenant provides the lord with services and a right to incidents.
They may alienate their land further, creating subtenants (subinfeudation)
The doctrine of tenure does not strictly apply in Australia, but some parts
remain:
o The concept of the Crown owning all the land and freeholders not
having absolute ownership remains.
o The concept of mutual duties and obligations (services and
incidents) does not apply.
Alienation of land under the doctrine of tenure
1. Subinfeudation: where a tenant would alienate a part of his land to a
subtenant (vertical)
2. Substitution: where a tenant would alienate all or part of his land to another
tenant but without becoming his lord (new tenant is not a sub-tenant, but still
a tenant of the original lord)(horizontal)
Doctrine of tenure has no practical significance its influence lingers in three
areas:
1. No person can own land as it is held of the Crown

2. The modern landlord-tenant relationship bears some resemblance to early

tenurial relationship.1
3. The traditional doctrine of tenure operated until Mabo (No 2)2 to obstruct
recognition of native title.
Doctrine of tenure served to obstruct the recognition of native title
DoT recognised the rights could be divided up (Estates means in a general sense, the
right to possession)

No Services
3.5
Services: the tenant has to provide a variety of services for the lord in return for
his tenure. In return, the lord provides the land, a court and protection
Council of Municipality of Randwick v Rutledge:3 The early Governors had
express powers under their commissions to make grants of land
Socage: a feudal tenure of land involving payment of rent or other non-military
service to a superior.
If these substantive obligations ever existed in Australia, then a case could be made
for the idea that there is no absolute ownership of land instead grants of land to
citizens would lead to a holding of the Crown.
No Incidents
3.6
At CL, land held in fee simple4 would pass to the feudal overlord on the occurrence
of certain events.
Feudal overlord = the Crown
In the case of socage tenure, escheat5 occurred in two kinds of cases:
1. Where the tenant in fee simple was convicted of a serious criminal
offence, or left the realm to avoid conviction
2. Death of tenant without next of kin
Where the tenant dies without next of kin, the Crown now takes realty and
personalty of individuals dying interstate without next of kin as bona vacantia in the
majority of Australian jurisdictions
Fragmentation in a Temporal Dimension: The Doctrine of Estates
The doctrine of tenure recognised that the sum total of rights could be divided
Western Australia v Ward:6 the evolution of the doctrine of estates property
interests came to be fragmented on the basis of time.
Land has certain characteristics that differentiate it from other forms of property.
1. Its location is permanent
2. May be capable of generating incoming forever
Mabo (No 2): the estate in fee the maximum interest which a subject could
have in the land.7
Estates are differentiated from easements8 or profits a prendre9.
o The difference was recognised by the CL in its categorisation of estates as
corporeal hereditaments (physical possession) and incorporeal
hereditaments (rights over land)
Interests can be carved out on a temporal basis present and future possession
1 (1992) 175 CLR 1, 80.
2 (1992) 175 CLR 1
3 (1959) 102 CLR 54
4 Fee simple: a form of freehold ownership. The highest ownership interest possible that can be had in real property. The
owner has the right to use it, exclusively possess it, commit waste upon it etc.

5 Escheat: CL doctrine which transfers the property of a person who dies without heirs to the Crown
6 (2000) 170 ALR 159, 359.
7 (1992) 175 CLR 1, 80.
8 Easement: a right to cross or otherwise use someone elses land for a specified purpose
9 Profit a prendre: a right to take from the land owned by another person part of the natural produce grown or part of the

soil. E.g. plant and harvest crops.

Wills granted ownership of the land at some point in time but not necessarily
immediate ownership
3.9 has a problem

General Definitions

Freehold

Leasehold

Fee Simple, Life

Estates and Fee Tail

had no such remedy,

seisen being the
landlord

A freehold estate
carried with it seisen
and consequently the
protection of the
actions for recovery
of land

Can only recover

damages from the
landlord for breach of
contract (now they
have protections)

Fee Simple
The greatest interest in land recognised by the common law and is the closest it
comes to absolute ownership
Gumana v Northern Territory:10 An estate in fee simple is for almost all practical
purposes the equivalent of full ownership of the land and confers the lawful right to
exercise over, upon and in respect to the land all rights of ownership etc. Pg 179
Wik v Qld:11 fee simple affords the widest powers of enjoyment on respect of all
the advantages to be derived from the land and from anything found on it: per
Gummow J
Fee: indicates that the estate was one of inheritance
Simple: under the old law, the estate was capable of passing to heirs generally and
was not restricted to a particular class of heirs (fee tail).
Fee Tail
Owed its existence to the importance of land as a form of family wealth
Rights of disposition more limited compared to FS.
The estate was given to a person and then to specified descendants of that person,
with the intention that it should last only while this line of specified descendants
continued.
Ensures that the property remain in the family forever.
In NSW, this has been abolished.
Life Estate
A life estate was created when an interest in land was granted to a person for life
Not an inheritance since it terminated on the death of the tenant
An estate pur autre vie (for the life of another) was created by an express gift
o To B for the life of A A conveying the interest to B
o Bs interest would terminate when A dies.
Leasehold Estates
10 (2007) 153 FCR 349.
11 (1996) 187 CLR 1, 176.

Distinguished from freeholds on the basis that their duration is certain or capable of
being rendered certain.
Regarded as mere personal transactions without the protection of the actions for
recovery of land
o A lease for a fixed term of years: fixed for a period which expires
automatically at the end of the period
o A periodic tenancy: differs from a lease for a fixed term in that it does not
terminate until appropriate notice is given
o A tenancy at will: may be determined at any time by either party subject,
to a packing-up period see Landale v Menzies12
o A tenancy at sufferance: arises where a tenant takes possession of land
lawfully pursuant to a lease, but continues wrongfully in possession after the
termination of the lease.
This occurs where a tenant for a fixed term holds over after the
expiration of the term without the landlords dissent or assent:
Anderson v Bowles13

3.75-3.97
Systemic Fragmentation of Interests in Land: The Common Law, Tenure and
Native Title
Difference between English and Australian common law is that Australian law
recognises indigenous rights
Indigenous land rights can co-exist with common law, non-indigenous proprietary
rights
Mabo v Queensland (No 2) (1992) 175 CLR 1
MF:
Murray Islanders commenced proceedings in the HC in response to the QLD
(Aboriginal and Islander Land Grants) Amendment- establishing a system of making
land grants on trust for Aboriginals and TSIs.
The Meriam people had been in occupation of the islands for generations prior to
first European contact and they continue to live in villages on islands to this day.
The P sought declarations, inter alia, that the Meriam people were entitled to the
Murray Islands as owners/possessors
Legal Issues:
The defendants argument: when the territory of a settled colony became part of the
Crowns dominions, the law of England so far as applicable, became the law of the
colony and thus the Crown acquired absolute beneficial ownership of all land in the
territory thus no other right or interest could thereafter be possessed by any other
person unless granted by the Crown.
Are the rights of the Meriam people of today to be determined on the footing that
their ancestors lost their traditional rights and interests in the land of the Murray
Islands in 1879.
Reasoning:
Brennan J:
According to AG v Brown, the CL itself took from indigenous inhabitants any right
to occupy their traditional land, exposed them to deprivation of the religious,
cultural and economic sustenance which their traditional land provides.
This made the indigenous inhabitants intruders unjust
Analysis of the Defendants arguments.
1. The Crown acquired sovereignty over the Murray Islands and that the
laws of QLD became the law of the Murray Islands

12 (1909) 9 CLR 89.

13 (1951) 84 CLR 310.

Defendants accept proposition except challenge that the Crown acquired

absolute beneficial ownership of the land when Crown acquired
sovereignty
2. The feudal basis of the proposition of absolute Crown ownership
Crown grants is the essential principal of land law
Land in Australia which has been granted by the Crown is held on a tenure
of some kind and the titles acquired under the accepted land law cannot
be disturbed.
It is not corollary that the Crown acquire absolute beneficial ownership of
that land to the exclusion of the indigenous inhabitants.
If the land were terra nullius then the Crown would have absolute
beneficial ownership AG v Brown (as there would be no other
proprietor)
But if the land were occupied by indigenous inhabitants the
radical title14 which is acquired with the acquisition of sovereignty
cannot itself be taken to confer absolute beneficial title to the
occupied land.
The doctrine of tenure applies to every Crown grant of an interest in land,
but not to the rights and interests which do not owe their existence to a
Crown grant.
3. The nature and incidents of native title
Native title is given its content by the traditional laws acknowledged by
and the traditional customs observed by the indigenous inhabitants of a
territory.
Some general propositions about native title stated without reference to
evidence:
i. Unless there are pre-existing laws, the rights and interests which
constitute a native title can be possessed only by indigenous
inhabitants and their descendants.
The Meriam people asserted an exclusive right to occupy the
Murray Islands and held a proprietary interest in those islands
ii. Native title may be protected by such legal or equitable remedies as
are appropriate to the particular rights and interests established by
the evidence provided those laws and customs are not repugnant
to natural justice etc.
iii. Possession may be protected by a representative action brought on
behalf of the people who sue to protect rights which are dependent
on the communal native title.
Extinguishing Native Title
The exercise of a power to extinguish native title must reveal a clear and
plain intention to do so, whether it be from the Executive or Legislature.
Brennan J HELD: native title had not been extinguished by the reservation of
the Islands for sale for the benefit of their inhabitants. However, native title had
been extinguished with respect of two acres of land leased to the London
Missionary.
Deane & Gaudron JJ:
Contents of the rights and identity of those entitled to enjoy native title must be
ascertained by reference to that traditional law or custom
Subsequent developments or variations of customs do not distinguish the title in
relation to land
Rights are not assignable outside the overall native system
They can be voluntarily extinguished by surrender to the Crown
They can be lost by abandonment of the connection with the land or by extinction of
the relevant tribe or group
Once native title expires the Crowns radical title becomes full beneficial ownership
14 Radical Title: confers only sovereignty and does not automatically extinguish native title rights. The ultimate ownership
rights of the land vested in the crown. Estate.

 More on page 213

Mason CJ and McHugh J:
Operation of the RDA15
Extinguishment of native title by the Crown by inconsistent grant is wrongful and
gives rise to a claim for compensatory damages
Held that traditional title was extinguished by an inconsistent Crown grant
concluded that such an extinguishment does not entitle native title holders to
compensation.
Deane J:
Dissenting holding that this was simply a form of occupancy enjoyed with the
permission of the Crown and that since the first settlement, the Crown had
evidenced an intention in relation to the land in the colony which was inconsistent
with any recognition of native title.
Doctrine of Tenure after Mabo (No 2)
Court held that it was too late to rule otherwise (in relation to the theory of tenure)
A distinction was made between the radical title acquired by the Crown and the
absolute beneficial ownership that was held to follow from the traditional doctrine of
tenure
This case overruled AG v Brown
It followed that the Crown only acquired absolute beneficial ownership in respect of
land which was not in the occupation of the Indigenous inhabitants at the time of
acquisition of sovereignty.
Native Title A Proprietary Interest?
In Milirrpum v Nabalco: Blackburn J held that even if the common law recognised
some form of communal native title, it was necessary for the plaintiffs to show that
their predecessors held a recognisable proprietary interest in the land
o By considering the extent of proprietary interests- it includes the right to use
and enjoy, the right to exclude others, right to alienate these rights do not
need to co-exist before there can be a proprietary interest
o Indigenous people use the land- care for it, perform rituals etc . However,
according to this case, this is not an indication of a proprietary interest
Problems the Mabo (No 2) decision created:
1. The necessity to validate titles issued after the commencement of the RDA which
might have rendered the Act invalid
2. A requirement to make provision for permitted future development of land
affected by native title
3. The need to provide a regime for the speedy and efficient determination of
issues of native title
The Native Title Act 1993 (Cth)
S 10: recognises the concept of Native Title
S 11: it cannot be extinguished contrary to the Act
S 223: Definition of Native title
Pg 217.
Limitations are also placed to which future legislation or grants can affect native
title: Part 2, Div 3
S 20: they must agree to the extinguishment or their property must be acquired
under compulsory acquisition legislation, which provides compensation
Pt 2, Div 3, Subdiv P: the legislation may recognise the special relationship between
Aboriginal people and their land by giving them a right to negotiate before an
interest (e.g. mining lease) is granted
The Nature and Incidents of Native Title
15 Racial Discrimination Act 1975

Mabo (No 2): Brennan J: native title has its origin and is given its content by the
traditional laws acknowledged by and the customs observed by the Indigenous
inhabitants of a territory. The nature and incidents of native title must be
ascertained as a matter of fact by reference to those laws and customs. 16 forms
the basis of the definition of native title
Wik: Gummow J: the nature of native title will vary. It may comprise of personal or
communal usufructary17 rights involving access to the area of land etc. 18
De Rose v South Australia: Apart from the requirement in s 223(1) the rights
and interests must be capable of recognition under the common law, s 223(1) does
not impose limits on the content of traditional laws and customs. 19

Western Australia v Ward (2002) 191 ALR 1

MF:
In 1994, the Miruwung and Gajerrong people filed an application with the National
Native Title Tribunal seeking recognition of title rights.
Gleeson CJ, Gaudron, Gummow and Hayne JJ:
Aboriginal peoples connection is essentially spiritual
Native title defined in s 223(1)(c)
S 11(1) of the NTA provides that NT is not able to be extinguished contrary to the
NTA and that claims that gave rise to the present appeals are claims made under
the NTA for rights that are defined in that statute
Several points made:
1. The rights and interests may be communal, group or individual rights and
interest
2. The rights and interests consist in relation to land or waters
3. The rights and interests must have three characteristics
a. They are rights and interests which are possessed under the
traditional laws acknowledged and customs observed
b. By those traditional laws and customs, the peoples have a connection
with the land/water in question
c. The rights and interests must be recognised by the common law of
Australia
(a): satisfied
(b): s 223(1)(b) is a connection with the land or waters by those laws and customs
o it requires the rights and interests possessed under the traditional laws and
customs
o for connection with land or waters by those laws and customs
Para (a) and (b) of s 223(1) indicate that it is from the traditional laws and customs
that native title rights and interests derive, not the common law.
Fejo: The NTA does not deal with the ascertainment or enforcement of native title
rights- it provides for the establishment of NT and recognises and protects it.
Recognition may cease but native title may still subsist.
What rights do the native title bundle of rights contain?
Territorial Sea:
Commonwealth v Yarmirr: the HC examined whether native title could exist over
territorial sea and seabed
o In so far as native title could only operate as a burden on the Crowns radical
title, the Cth argued that if radical title ended at the low-water mark, so did
too native title.

16 (1992) 175 CLR 1, 58.

17 Usufructuary: never had possession of this property but did have an interest in the property itself
18 (1996) 175 CLR 1, 169.
19 (2003) 133 FCR 325, 200.?

HC held that the crown did not have radical title over the sea and therefore
tenurial rights terminated at the low-water mark. However, the Crown had
interests and rights over it, and that native title could exist alongside such
rights as long as it was not inconsistent with them
Torres Strait Islanders v Qld (No 2) (2010) 270 ALR 564: read pg 223 about
how Island communities have differential regard for the areas of their marine
estates as they radiate outwards.
Inland Waters:
Yanner v Eaton: the HC held that hunting of crocodiles with harpoons was a valid
exercise of native title
NTA s 223(1)(b) refers to native title rights over land or waters
Gumana v NT: considered the effect of the low-water mark under Ab land rights
and held that a fee-simple over land between high and low water mark and parts of
rivers conferred a right of exclusive possession
o It therefore prevented the NT from issuing commercial fishing licences over
such land and the water above it and it excluded the public right to fish and
navigate such waters.
Cultural Knowledge:
WA v Ward: although the relationship of Ab people to their land has a religious
dimension, we do not think a right to maintain, protect and prevent misuse of cultural
knowledge is a right in relation to land that can be the subject of a determination of
native title.
Protecting Cultural Knowledge:
Ward: affirmed that native title does not extend to the protection of intellectual
property rights associated with the land
Foster v Mountford: an interlocutory injunction was granted to prevent the
publication of a book containing tribal secrets
Minerals and Petroleum
Ward: HC held that legislation had extinguished any possible native title rights to
minerals with the possible exception of ochre
Is Native Title Alienable?
It is general inalienable20 Mabo (No 2)
Exceptions:
1. Native title may be surrendered by the Crown
2. May be acquired by a clan, group or member of an indigenous people in
accordance with the laws and customs of that people
Membership of the Claimant Group
Mabo (No 2): Brennan J determined that membership of an indigenous group
depends on biological descent from Indigenous people and on mutual recognition of a
particular persons membership by that person and by the elders or other persons
enjoying traditional authority among those people
Ward: requirement of strict biological descent was rejected in Ward a substantial
degree of ancestral connection between the original native title holders and present
claimants is required
Ngalakan People v NT: found that the determining factor was whether the traditional
laws acknowledged and the traditional customs observed by the group allowed a
person to identify as a member of a group
Gumana:21 held that spouses of native title owners held native title because the
relevant connection was between the community and the land key question is
whether a particular individual was a member of that community
Alyawarr:22 determinations made under s 225 of NTA cover a range of possibilities
which depend upon the nature of the society said to be the repository of the traditional
laws and customs that give rise to native title rights and interests claimed.
o

20 Alienable land in property law is land that has the capacity to be transferred to by mortgage or by deed. Property is
generally deemed to be alienable unless there were restrictions placed on it.
21 (2007) 153 FCR 439.
22 (2005) 145 FCR [79] to [86]

Sampi:23 where members of the relevant society enjoyed communal ownership of the
native title rights, they are allocated intramurally to particular families and clans
Ward: found that groups which were territorially adjacent and shared economic and
social links, could be regarded as a composite community with shared interests
Neowarra:24rejected the contention that native title should be recognised on a
dambun or language level
Lardil Peoples:25Alywarr referred to this case held that each group held native title
in respect of a defined area of land
Akiba: held that reciprocal rights held by an indigenous group with another group are
not native title rights s 223(1) does not contemplate rights and interests which are
dependent on the permission of other native title holders for their enjoymentsuch
rights are not a connection under their laws and customs but held mediately through a
personal relationship with a native title holder

Can Native Title Evolve Over Time?

Mabo (No 2): native title is not frozen as at the moment of establishment of the
colony
Yanner v Eaton:26 held that the use of motorised craft to conduct traditional activities
such as hunting and fishing was a legitimate exercise of native title rights on the basis
that it was an evolved or altered form of traditional behaviour
Harrington Smith: 27 modified method of hunting (i.e. using motorised stuff) is fine
the question is what to make of all the evidence concerning hunting
Akiba: reasons why claimants hunt (i.e. inexpensive recreation, socialising with friends
and family, passing knowledge, obtaining a supplement to supermarket food; - these
reasons are not evidence of observance of traditional laws and customs
Akiba: right to engage in commercial fishing rights extinguished by statute.
Class

Notes:
Tenure: who is in possession
Estate: how is the land divided different rights people have
Doctrinal what are the rules marking the bounds between what are property
rights and what are regular rights?

23 [2005] FCA 777

24 [2003] FCA 1402
25 [2004] FCA 298.
26 (1999) 201 CLR 351.
27 [2007] FCA 31.