• Internal Code :
  • Subject Code :
  • University :
  • Subject Name : Law

Table of Contents

Property law- Concept in Australia- Land Rights.

Native Title subordinated to Non-Indigenous systems of title- Criticism..

Amending Native Title- Is it necessary?.

Bibliography.

Property Law- Concept in Australia- Land Rights

The word property offers a picturesque view of an asset, and hence the underlying idea behind it becomes multifaceted. Broader classification of the property provides two types, comprising of real and personal properties. Real property is something which crops up from the attached interests fixated on immovables like, land and building etc., whereas Personal property comprises of things which are tangible or incorporeal, that is one which can be perceived and the other which is devoid of natural perception. Tangible property includes movables like cars, goods, chattels etc., whereas Incorporeal properties are trademark, patent and other intellectual property rights, and also includes superannuation rights as opined in case of Greville v Williams (1906)[1] and also contractual rights comprising of debts as held in case of City of Swan v Lehman Bros Australia Ltd (2009)[2]. Thus, it is pertinent to say that, rights in properties created by law is the intangible rights whereas the tangible rights have an existence independent of law, however, those rights are governed by law. The property is conceptualised under law as having the right on things thereby establishing a legal relationship between the object and an individual, was opined in case of Yanner v Eaton (1999)[3].

The Court in case of Milirrpum v Nabalco Pty Ltd (1971)[4], defined property as something which can be used and enjoyed thereby excluding others and thus includes the right of alienation. However, Court in Yanner was reluctant to define property as a thing, rather it was opined that property can be defined for describing to entail the legal relationship attached with an individual to a thing. Thus, the property is the exercise of the power over things within the reasonable permissibility, thereby defining it as the bundle of rights. The concept of the bundle of rights is recognised as the legal interests under common law, whereas the beneficial or the equitable interests lay its roots in equity, as opined in case of Minister of State for the Army v Dalziel (1944)[5]. Thus, the concept of the property lies in the dominion where the sole right is claimed on a thing by the exclusion of any others’ rights.

From a different perspective, as property can be further bifurcated in to corporeal and incorporeal, so the rights of the property on an object have concurrent existence and thus different individual have a separate hold on a single object, from which the concept of ownership and possession comes into existence. Thus, a property right is defined as the one which is dependent on the legislative definition of the types of property subjected to interpretation.

The concept that evolved from the bundle of rights proposition faced challenges for the circumstances of landholding and more specifically native titles, as opined in case of Western Australia v Ward (2002)[6]. For the claim of customary rights by the native clans on the lands, was identified as the interest having no proprietary sanctity in Milirrpum v Nabalco Pty Ltd (1971), but the Court in case of Mabo v Queensland [No 2] (1992)[7], found that the holdings by the Aboriginal for their rights and interests in land which was pre-existing, dated back even before the sovereignty was asserted by the Crown. The court in Fejo v Northern Territory (1998)[8], thought that the above- stated rights do not have an existence in common law, although recognized by it.

Native Title Subordinated to Non-Indigenous Systems of The Title- Criticism

The section will critically discuss the recognition of Native title to the subordination of non-Indigenous systems of title to land in Australia. It is understood that the native titles do not have any existence in common law, but was recognised by it, and based on that the traditions and the customs affected the very nature of the native title. Native Title received the legislative intervention through the Native Title Act 1993 (Cth)[9], but the development of it is majorly done by the precedents. The native title became conceptualised, but coherent understanding is still not sumptuous following the decisions in cases of the State of Western Australia v Ward & Ors (Miriuwung Gajerrong) (2000)[10] and Commonwealth of Australia v Yarmirr (Croker Island) (1999) 168 ALR 426. The Indigenous peoples’ right to land was discussed in Mabo v Queensland [No 2] (1992) and Wik Peoples v Queensland (1996) 187 CLR 1, following which saw legislative assent in the form of Native Title Act 1993 (Cth) and the Native Title Amendment Act 1998 (Cth)[11], but the concept of native title as expounded by common law is only followed in the legislation.

The native title concept was rigorously discussed in cases of Yarmirr v Northern Territory (1998)[12], Ben Ward and Ors on behalf of the Miriuwung and Gajerrong People and Ors v. the State of Western Australia and Ors (1998)[13] and The Members of the Yorta Yorta Aboriginal Community v The State of Victoria (2002)[14], however, will depend on the uniqueness of the customs or traditions the clans follow, was held in case of Akiba v Commonwealth [2013][15], Sampi v Western Australia [2005][16], and also in Queensland v Congoo [2015][17]. But what is more, required for the common law is the conceptual framework, which will be coherent, since fundamental reasoning is the bedrock of the precedential system. On the other hand, native title was not traditionally dealt with by the Australian Courts, so when the concepts involve competing for sovereignty or that of pluralism or concerns about collective rights, then it is crucially important that coherent reasoning of native title surfaces.

The decision in case of Koowarta v Bjelke Peterson; Queensland v Commonwealth (1982)[18], did not contribute towards the land rights in favour of Aborigines. The case challenged the constitutional validity and highlighted racial discrimination, concerning the purchase of lands. The notion of terra nullius was declared wrong in Mabo v Queensland [No 2] (1992), and was held that sovereignty acquisition by the Crown must be preceded with so that all the people of Australia enjoy the radical title, which was previously not accepted in cases of Attorney-General (NSW) v Broyvn (1847)[19], Williams v Attorney-General (NSW) (1913)[20], Randwick Corporation v Rutledge (1959)[21], Wade v NSW Rutile Mining Co Pty Ltd (1969)[22], NSW v Commonwealth (1975)[23]. In Milirrpum v Nabalco Pty Ltd (1971), the Court while rejecting the claim of land rights for the Yirrkala people, the Court fixated itself with the established legal position and in so doing did not recognise the land rights, thereby creating a gap between the Australian history of native titles to that of the non- indigenous title under the prevailing Australian law. But the decision in Mabo v Queensland [No 2], actually lessened the gap so created between Australian history of native titles to that of the non- indigenous title under the prevailing Australian law.

Indigenous laws maintain continuous operations, even though there are intrusions alleged under the Australian Law. Under the prevailing law of the Native Title Act 1993 (Cth), the rights and interests are continuously allocated thereby dictating the social interactions and forming the indigenous identity. So, the legal framework for the recognition of Native Title cannot be considered as subordinated to the recognition of non-Indigenous title to land in Australia. Since, the implications which can be drawn, do not act as extinguishment to the native title but the very domain of Australian law is getting unrecognised, was opined in case of Western Australia v Brown [2014][24]. It is thus pertinent to mention that, when any rights or interests are granted, is reiterating from the native title, if any over the land, which necessarily does not operate under Indigenous law. The rights and interests of the Indigenous are not only recognised but also protected but have also faced opposition from the core systems followed in Australia. Before the legislative sanctity and assertion on the Native Title, the agreements do not get contemplated without pursuing litigation, sufficed with credible evidence concerning rights and interests of the native title.

Cropping form Mabo v Queensland [No 2] to Fejo v Northern Territory (1998) decision and including all other relevant decisions, it cannot be said that the legal framework for the recognition of Native Title is subordinated to the recognition of non-Indigenous title to land in Australia since the dominance of it is asserted through those decisions. As it is indicated in Fejo v Northern Territory (1998), that, a settled principle cannot be contradicted or destroyed by the Courts, and neither the exclusive possessory entitlement to lands can be removed to cause a disparity in social strata. Thus, the dominance which surfaces remains undisturbed and unaffected by the inherent characteristics of the prevailing legal system. The dominance Indigenous legal framework for the recognition of Native Title cannot be maintained as being subordinated to the recognition of non-Indigenous systems of title to land in Australia, since the rights and interests are allocated continuously, thereby dictating the interactions and hence uplifting the identity of the Indigenous culture. It can be construed that, Indigenous system is gaining recognition, but on the same footing it can also be maintained that, oppression and injustice are also handled by the Australian legal system steadfastly so that the interaction which can initiate between an Indigenous with a non-Indigenous can be balanced with the society.

Amending Native Title- Is It Necessary?

From today's perspective, it is pertinent to say that the Native title is well recognised under Australian law. Gaining legislative assent and recognition from the decision in Mabo v Queensland [No 2] (1992), the legislation has so far resolved disputes concerning the rights and interests within the native titles. However, the substantial recognition is still lacking followed by the lesser protection of the native title concerned. The Australian Parliament’s intention in creating the piece of legislation can be deduced from the Preamble of the Act, however, the human rights and the full exercise of it, cannot be construed as being performed. There is no denying that benefit of the Indigenous people is the prime concern following their traditions and customs, so that positive outcomes concerning economic, social and cultural aspect is looked in to. Still, it is pertinent to mention that, the major constraint that is declining the performance of the Native Title Act 1993 (Cth), is the legislation itself followed by the evolution of it through common law interpretations. Secondly, the governing system which helps the legislation to operate also acts as a constraint to deliver expected performance.

It is perceivable that, Native Title Act 1993 (Cth) is not a simple piece of legislation, and the disadvantaged group of the Indigenous Australians who do not have fluency in English, are subjected to grasp the complexity of it to establish their legal recognition towards claiming right and interest on lands. Seeking compensation for the extinguished rights also have the barriers of not coping with English as a first language. On the other hand, the operational phase of the legislation is another constraint, since the underlying process of reforming the Statute can be controversial and might involve some proponents having the potential of affecting the legislation negatively. Again, the provision relating to normal negotiation procedure under section 31 of the Native Title Act 1993 (Cth) is objected by the decision of McGlade v Native Title Register [2017][25], where the Court held that to register indigenous land use agreements (ILUAs), cannot be considered valid, if it is not in compliance with 251B of the Native Title Act 1993 (Cth) along with the signature to be produced by all the claimant of the native title who is actually registered and hence needs reform, is under consideration of the proposed Native Title Legislation Amendment Bill 2019 (Cth). The proposed Bill also proposes the inclusion of an entirely new section for disregarding the native title extinguishment for the park, through a written agreement and is applicable for Crown- held lands or freeholds by the Crown.

Furthermore, under the objection process mandated under section 24MD(6B) of Native Title Act 1993 (Cth), a period of 8 months is proposed to be incorporated, so that the previous two- month period can be removed to widen the scope of granting Audi Alteram Partem, for not keeping any unresolved objections. Despite the decision in case of Forrest & Forrest Pty Ltd v Wilson [2017][26], the reform Bill does not show concern for the mining tenements applicable in Western Australia, since the introduction of Mining Amendment (Procedures and Validation) Bill 2018 (WA)[27] for mining tenements validation can be considered as complementary due to the discussions by the concerned government.

The reform of the native title system is to be considered from multiple aspects. The intention of the legislature must be at all times kept in mind so that the proposed reform can be comprehensively made. The amendment that is required to balance the legal position of Australian Native Title to the other systems of title to land in Australia includes system’s effectiveness, so that the human rights not only get recognised but are also protected. Secondly, the claimants or the prospective claimants’ experience to use the system for obtaining their rights or learn about the extinguishment that might arise for them, to be made easier, so that it can be easily grasped for ascertaining the factual aspects surrounding it. As discussed above the propositions of the Native Title Legislation Amendment Bill 2019 (Cth)[28] concerning enforceability or that of the sustainability and also the quality is only to create plausible agreements which will prove to be viable for the Indigenous people. Again, if the impediments are removed then receiving the native title rights will not be a troublesome process.

The sole intention of the Legislature in passing the Native Title Act 1993 (Cth), is to offer recognition followed by native title protection to the Indigenous people. So, when the future amendments are intended, then the object of the Legislature must be complied with, so promoting the conditions surmounting the agreement will deliver assistance and in so doing the effectiveness can be maintained with timeliness. Understandably, there is a fundamental difference when it comes to land rights and native title. The state, territory and the Commonwealth government creates the Land rights, thereby granting freehold rights to land or perpetual lease rights to the Indigenous Australians. However, native title as such is not a right but a recognition, where the rights of Indigenous Australians, dates back to antiquity that is have had existence in history, and based on those traditions the customary laws grants the Indigenous rights. So, while considering the present legal position of Australian Native Title with the other titles, the amendment must be made, in such a way that the Native Title legislation helps in providing resolutions to the title matters. While considering the economic aspects, the efficiency and the effectiveness must also be kept in mind, so that the human rights can be exercised and experienced by the Indigenous people based on their pre-existing rights thereby focussing on the operational outcome of the legislation.

Bibliography for Property Law

A Cases

Akiba v Commonwealth [2013] HCA 33; (2013) 250 CLR 209

Attorney-General (NSW) v Broyvn (1847) 1 Legge Cas 286

Ben Ward and Ors on behalf of the Miriuwung and Gajerrong People and Ors v. the State of Western Australia and Ors (1998) 159 ALR 483

City of Swan v Lehman Bros Australia Ltd (2009) 179 FCR 243

Fejo v Northern Territory (1998) 195 CLR 96

Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30

Greville v Williams (1906) 4 CLR 694

Koowarta v Bjelke Peterson; Queensland v Commonwealth (1982) 153 CLR 168

Mabo v Queensland [No 2] (1992) 175 CLR 1

McGlade v Native Title Register [2017] FCA FC10

Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141

Minister of State for the Army v Dalziel (1944) 68 CLR 261

NSW v Commonwealth (1975) 135 CLR 337

Queensland v Congoo [2015] HCA 17

Randwick Corporation v Rutledge (1959) 102 CLR 54

Sampi v Western Australia [2005] FCA 777

State of Western Australia v Ward & Ors (Miriuwung Gajerrong) (2000) 170 ALR 159

The Members of the Yorta Yorta Aboriginal Community v The State of Victoria [2002] HCA 58; 214 CLR 422; 194 ALR 538; 77 ALJR 356

Wade v NSW Rutile Mining Co Pty Ltd (1969) 121 CLR 177

Western Australia v Brown [2014] HCA 8; (2014) 253 CLR 507

Western Australia v Ward (2002) 213 CLR 1

Williams v Attorney-General (NSW) (1913) 16 CLR 404

Yanner v Eaton (1999) 201 CLR 351

Yarmirr v Northern Territory (1998) 156 ALR 370

B Legislation

Mining Amendment (Procedures and Validation) Bill 2018 (WA)

Native Title Act 1993 (Cth)

Native Title Amendment Act 1998 (Cth)

Native Title Legislation Amendment Bill 2019 (Cth)

[1] Greville v Williams (1906) 4 CLR 694

[2] City of Swan v Lehman Bros Australia Ltd (2009) 179 FCR 243

[3] Yanner v Eaton (1999) 201 CLR 351

[4] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141

[5] Minister of State for the Army v Dalziel (1944) 68 CLR 261

[6] Western Australia v Ward (2002) 213 CLR 1

[7] Mabo v Queensland [No 2] (1992) 175 CLR 1

[8] Fejo v Northern Territory (1998) 195 CLR 96

[9] Native Title Act 1993 (Cth)

[10] State of Western Australia v Ward & Ors (Miriuwung Gajerrong) (2000) 170 ALR 159

[11] Native Title Amendment Act 1998 (Cth)

[12] Yarmirr v Northern Territory (1998) 156 ALR 370

[13] Ben Ward and Ors on behalf of the Miriuwung and Gajerrong People and Ors v. the State of Western Australia and Ors (1998) 159 ALR 483

[14] The Members of the Yorta Yorta Aboriginal Community v The State of Victoria [2002] HCA 58; 214 CLR 422; 194 ALR 538; 77 ALJR 356

[15] Akiba v Commonwealth [2013] HCA 33; (2013) 250 CLR 209

[16] Sampi v Western Australia [2005] FCA 777

[17] Queensland v Congoo [2015] HCA 17

[18] Koowarta v Bjelke Peterson; Queensland v Commonwealth (1982) 153 CLR 168

[19] Attorney-General (NSW) v Broyvn (1847) 1 Legge Cas 286

[20] Williams v Attorney-General (NSW) (1913) 16 CLR 404

[21] Randwick Corporation v Rutledge (1959) 102 CLR 54

[22] Wade v NSW Rutile Mining Co Pty Ltd (1969) 121 CLR 177

[23] NSW v Commonwealth (1975) 135 CLR 337

[24] Western Australia v Brown [2014] HCA 8; (2014) 253 CLR 507

[25] McGlade v Native Title Register [2017] FCA FC10

[26] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30

[27] Mining Amendment (Procedures and Validation) Bill 2018 (WA)

[28] Native Title Legislation Amendment Bill 2019 (Cth)

Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Property Law Assignment Help

Get It Done! Today

Applicable Time Zone is AEST [Sydney, NSW] (GMT+11)
Not Specific >5000
  • 1,212,718Orders

  • 4.9/5Rating

  • 5,063Experts

Highlights

  • 21 Step Quality Check
  • 2000+ Ph.D Experts
  • Live Expert Sessions
  • Dedicated App
  • Earn while you Learn with us
  • Confidentiality Agreement
  • Money Back Guarantee
  • Customer Feedback

Just Pay for your Assignment

  • Turnitin Report

    $10.00
  • Proofreading and Editing

    $9.00Per Page
  • Consultation with Expert

    $35.00Per Hour
  • Live Session 1-on-1

    $40.00Per 30 min.
  • Quality Check

    $25.00
  • Total

    Free
  • Let's Start

Get
500 Words Free
on your assignment today

Browse across 1 Million Assignment Samples for Free

Explore MASS
Order Now

Request Callback

Tap to ChatGet instant assignment help

Get 500 Words FREE
Ask your Question
Need Assistance on your
existing assignment order?