Systems of Title
1. Torrens Title land
2. Old Title land
3. Strata title (under torrens system)
4. Crown land title
5. Native Title
Torrens Title
• Approximately 95% of land in NSW now held under torrens title system
• Invented by Sir Robert Torrens in SA
• Involved public register and statutory backing for the register
o Each owner certified as owner in register
o Statute makes register conclusive to ownership
- Retrospective investigation abolished
- Cannot go behind register to prove ownership
Old Title
• System used before torrens title
o Still used in some parts of NSW
• Evidence of title would be conveyance slip showing land transferred to you
o Could be traced back to crown grant
o Proof of title involved retrospective investigation
Strata Title
• Essentially Torrens Title applied to high-rise buildings
Crown Land Title
• Comes under Torrens system with statutory government control
• Subjects are those who own or lease land and are subject to stringent controls
Company Title
• Where own shares in company that owns property
o Gives you the right to occupy a certain part of the property
Native Title
Meaning of native title: Native Title Act 1993
• “Communal/group or individual rights and interests in land
• Traditional rights and customs of a group to land”
• Mabo v State of Queensland (1992) 175 CLR 1; 66 ALJR 408
o High Court recognised Aboriginal Title as part of land law system
o Native title survived the Crown’s acquisition of sovereignty
o Overcomes doctrine of tenures notion that the ultimate owner of land is the crown
- And the notion that the law should only recognise rights granted by the crown
Native Title under Mabo
• Rights and obligations which a tribe has over the land according to its own laws and customs involving a special relationship with the land
o Content of native title can vary according to the rights and obligations recognised by different groups
• Generally a communal title
o Individual may claim under exceptional circumstances
o Individual can bring action on behalf of a tribe
• Belongs to the group
o (obiter) membership decided by the group
• Cannot be disposed of – can only be passed through tribe
• Must show some connection with the land
o Required physical connection (under Mason J in Coe v Commonwealth (1994), although spiritual connection may be enough
• Must be a continuing link with the land
o Extinguished where connection with land lost or abandoned
- Lost forever and never able to be reclaimed
- Unsure of result of forced abandonment
• How far back must the connection be traced
o Generally must show traditional ownership at time of colonisation (1788)
o Evidence back to 1880 may be enough (Kirby J)
- Mason v Tritton (1994)
• FACTS:
o Aborigine prosecuted for diving without fishing license
o Defence that exercising native title right
o Only had evidence back to 1880
• HELD
o 1880 was acceptable, had right to feed himself and his family
o As he had a car load of abalone, clearly gathered for commercial purposes, he was found guilty
Need ‘traditional connection’ with land, by acknowledging the laws and observing the customs of the group
• Pareroultja v Tickener (1993) (Federal Court)
o Played down requirement for physical presence on the land
Merging of native title and doctrine of tenures (Brennan J in Mabo)
• Doctrine of tenures only applies when Crown has granted land
o Ie sovereign power has right to extinguish underlying rights to land, but until it exercises this, it has radical, not beneficial title
• Land subject to native title has never been granted
o Ie radical title of the crown is burdened by native title
Extinguishing native title (under Mabo)
• Two ways – both involve notion that crown does something inconsistent with the continuity of native title
1. Grant a fee simple
- Right to fee simple gives owner the right to possession
2. Grant a lease
• Extinguishes native title if it is one that grants exclusive possession, as such a lease gives the tenant the right to exclusive use of the land
• MUST ‘GRANT EXCLUSIVE POSSESSION
o Loophole allowed judges in Wik to say that some leases do not extinguish native title
• Note
o Designation as National park, or granting license to mine are not necessarily inconsistent with the traditional use of land
Native Title may not be extinguished if fee simple expressly or impliedly allows for exercise of Native Title
• Pareroultja v Tickener (1993) (Federal Court)
o FACTS:
- Tribe given freehold grant after proving native title rights
- Tribe changed its mind and expressed a preference for native title, but it was now extinguished by the previous grant
o HELD
- Native title not extinguished
- Exceptional circumstances where grant in fee simple may not extinguish native title
• Where fee simple granted under land rights legislation enacted for the specific purpose of granting land to native title holders, either because:
o such a grant is not necessarily inconsistent with the continued exercise of native title,
o or because it lacks the clear and plain intention to extinguish native title
o Note that NSW, Aboriginal land rights act 1983 provides that a grant made under the act does not extinguish native title
If fee simple comes to an end, it is still unlikely that there will be native title
• Fejo v Northern Territory (1998) 72 ALJR 1442 (High Court)
o FACTS
- Fee simple given to farm, but reverted to a reserve after 30 years
- Larapia people said they had never abandoned property, and now the fee simple had come to an end they wished to place a native title claim
o HELD
- Granting of fee simple had extinguished native title forever
• But hints in Kirby’s judgement that may be instances where fee simple did not extinguish native title
• Wik Peoples v State of Queensland (1996) 187 CLR 1; 71 ALJR 173
o FACTS
- Pastoral lease over two arid properties.
- Properties low intensity farming (relevant)
- Leases granted under statute – ie not common law leases
• Allowed others (eg mining prospectors) to enter the property, and minister could allow anyone on land for any reason
o HELD 4:3
- Use of the land not inconsistent with native title, and legislation showed no clear and plain intention to extinguish native title.
- As not common law leases, must examine statute
• Did not afford exclusive possession – others allowed on
• History of pastoral leases showed concern for traditional occupiers of the land
- Suggested that as intensity so low, possibility that peoples could co-exist on the properties with the farmers
- Minority
• Did extinguish, as required leasees to pay rent
Effect of Racial Discrimination Act 1975 – Are land grants discriminatory?
• Suggestion in Mabo judgements that Act could invalidate post 1975 land grants
o Suggests that all races should be given the right to property
o If crown extinguishes any other form of title other than native title, compensation should be paid
• Are these discriminatory?
• Are land grants post 1975 that extinguished native title discriminatory?