Australian Land Law: Doctrine of Tenure

Theory of Tenure

• States only the Crown owns land absolutely.
• Individuals hold interests granted directly or indirectly by the Crown.
• Tenure defines the conditions and mode of holding or occupying land.
• The doctrine remains fundamental to understanding contemporary land law.

History of Tenure

• Dates back to feudal England post-Norman conquest in 1066.
• Land vested in the monarch by conquest.
• The King granted land contingent on fulfilling obligations, typically services, not monetary payments.
• These services were called tenure, defining the terms of landholding.

Feudal Pyramid

• Describes the hierarchical structure of land ownership and obligations.
• King at the top owns all the land.
• Tenant-in-chief receives land from the King, obligated to provide services like knights for the King's army.
• Lesser Nobles/Knights, granted land by the tenant-in-chief for services
• Serfs and Freemen at the base, working the land for agriculture, granted land by lords for services.
• Subinfeudation refers to new grants with attached obligations.

Feudal Land vs. Allodial Land

• All land in England was incorporated into the feudal system.
• Allodial land is absolute individual ownership, not existing in England.
• Allodial land existed in parts of Europe and Scotland.
• Feudal law became England's common law.

Historical Tenure: Statute of Quia Emptores 1290

• Prohibited the creation of new tenures in fee simple, except by Crown grant.
• Abolished subinfeudation.

Historical Tenure: Tenures Abolition Act 1660

• Converted most tenures into free and common socage.
• Free socage: tenures lacking service requirements.

Doctrine of Escheat

• Land reversion to the feudal lord occurred when a tenant died without heirs, or committed a felony.

Adoption of Tenure in Australia

• The doctrine of tenure forms the foundation of Australian Land Law, with the Crown as ultimate owner.
• The history of Australian Land Law begins with British acquisition of sovereignty.

Acquisition of Sovereignty

• In 18th-century International Law can be acquired by: settlement, conquest, or treaty (cession).

Settled Territories

• Australia viewed historically as settled, not conquered.
• Considered terra nullius: land belonging to no one, or land without people.
• English law applied, subject to local conditions.
• Vesting of lands in the Crown under tenure was a fundamental aspect.
• Prior to Mabo v Queensland (No 2) (1992), the Crown acquired full and beneficial title upon sovereignty.
• This view complicated the recognition of Aboriginal land rights (native title) without a Crown grant.
• Refer to: AG v Brown and Milirrpum v Nabalco.

The Mabo Cases

• Murray Islanders initiated proceedings in 1981 against the Commonwealth & Qld, seeking a declaration of traditional native title over their lands & waters.
• 1982: proceedings commenced.
• 1988: Mabo No 1 decided in favor of Plaintiffs.
• 1992: Mabo No 2 High Court finds in favour of Plaintiffs.
• Concerned the validity of the Queensland Coastal Islands Declaratory Act 1985.
• High Court 4:3 found (No 1):
• The Queensland legislation was invalid because it was inconsistent with the Racial Discrimination Act 1975 (Cth) (s10).
• HC 6:1 (No 2):
• Common law recognizes native title for Indigenous inhabitants, based on their laws and customs.
• Murray Islanders entitled to occupation, use, and enjoyment of Murray Islands lands (except for Crown leases and administrative lands).
• The title of the Murray Islanders was stated to be subject to the Queensland government's power to validly extinguish that title.
• Extinguishment would be subject to the Racial Discrimination Act 1975 (Cth)

The HC in Mabo

• Doctrine of tenure is an essential principle of Australian land law.
• Australia was a settled territory.
• Australia was not terra nullius.
• The Crown did not automatically acquire ownership of all lands, only ownership of Australia as a country.
• The Crown’s title was a radical title, a bare title, not absolute beneficial ownership.
• A modified doctrine of tenure became part of Australian law.
• The modified doctrine applied to Crown grants but not Indigenous interests, enabling native title recognition.

Wik v Queensland (1996 187 CLR 1)

• Issue: do pastoral leases extinguish native title lands?
• Held 4-3: native title was not necessarily extinguished by pastoral leases.
• Legislation, not the doctrine of tenure, is the source of Australian land holding system.

Native Title: Indigenous Lands in Australia Today

• Indigenous peoples hold over 60% of Australia's land mass.
• Land Rights Schemes transfer land to Aboriginal peoples, permitting claims in specific circumstances.
• Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) applies.
• Native title recognizes land held by indigenous peoples.
• Refer to: Mabo v State of Queensland (No 2) (1992) 175 CLR 1 and Native Title Act (Cth) 1993.

The Recognition of Native Title and the Mabo Case

• Pre-Mabo Land Rights features
• No treaties with Indigenous peoples
• No common law recognition before 1992 (Mabo)
• Milirrpum v Nabalco Gove Land Rights Case 1971 relevant
• Political response to Milirrpum’s Case: Statutory Aboriginal Land Rights (Aboriginal Land Rights Act (Northern Territory)) 1976.
• This decision was overruled by Mabo (No 2).
• Recognition was given to native title to land for the Indigenous inhabitants of Australia.
• The High Court of Australia found in a
• Common law recognizes native title for Indigenous inhabitants, based on their laws and customs.
• Murray Islanders entitled to occupation, use, and enjoyment of Murray Islands lands (except for Crown leases and administrative lands).
• The title of the Murray Islanders was stated to be subject to the Queensland government's power to validly extinguish that title and Extinguishment would be subject to the Racial Discrimination Act 1975.
• The legal doctrine of terra nullius was overturned (Translated as land belonging to no one.)

Native Title Act 1993 (Cth)

• Took effect on January 1, 1994.
• The main objectives of the NTA include:
• Protecting native title.
• Regulating future dealings on native title land.
• Determinations of native title.
• Validating “past acts”.

Concept of Native Title

• Native Title Rights
• Originates and is defined by the traditional laws acknowledged and customs observed by Indigenous inhabitants.
• Nature and incidents are ascertained by reference to those laws and customs, per Brennan J in Mabo (No 2).
• Section 223 Native Title Act 1993 definition: communal, group, or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters:
• Possessed under traditional laws and customs.
• Aboriginal peoples or Torres Strait Islanders have a connection with the land or waters under those laws and customs.
• Rights and interests are recognized by Australian common law.
• Includes hunting, gathering, and fishing rights.
• Western Australia v Ward (2002) 213 CLR 1:
• NTA contains the definition of native title.
• Words of Brennan J is Mabo similar to the wording of the NTA
• Native title in Australia is based on traditions and customs specific to each community. Thus, its nature varies widely.
• Can amount to an exclusive possession interest in land.
• Is a bundle of rights.
• Does not include mineral rights.

Communal Title

• Rights are communal (and collective) rights enjoyed by the whole community.

Status of Native Title

• Is sui generis (unique).

Transferability of Native Title

• Is generally an inalienable interest in land.
• Cannot be transferred, but can be named in the interest in the crown

Holders of Native Title

• Once determined, is held and managed by a prescribed body corporate.
• The corporation must be set up before the court determines the native title

Exclusive Possession Native Title

• You can exclusively posses native title
• Banjima People v State of Western Australia (2015) 231 FCR 456:
• Banjima permission was required to enter Banjima country under traditional law and custom.
• Consequence of this finding is that, the Banjima People controlled access to Banjima territory
• To establish “exclusive possession” native title it is not essential to show exclusive occupation, at
• Fortescue Metals Group v Yindjibarndi People FCAFC 177:
• Requirement for ‘strangers’ to attain the consent of indigenous elders prior to entering onto country facilitated native title being recognised as an exclusive right
• Exclusive possession was upheld on appeal to the Full Federal Court in 2019.
• The High Court refused leave to appeal in 2020.

Offshore Native Title

• Cth of Australia v Yarmirr (2001)
• Native title can exist off-shore
• Australian common law extends to adjacent sea areas to enable the recognition of native title
• The Native Title Act applied to waters subject to Australian jurisdiction.
• No exclusive native title rights nor exclusive control of the claimed area was recognised.
• No Aboriginal commercial rights to the seas or sea resources exist. (Now see Akiba.)
• Fundamental inconsistency between native title rights and the common law public rights of navigation and fishing.
• Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia (2013) 300 ALR 1:
• The claimant group's native title rights to fish were not been extinguished by State and Commonwealth licensing laws.
• Commercial native title rights to fish were recognised.

Determinations and Proof of Native Title in Australia

• Section 223 Native Title Act 1993 (Cth) requires proof of a connection with the land or waters in accordance with the traditional laws and customs of the Aboriginal group.
• Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422
• No native title rights existed due to failure to fulfill proof requirements under s 223 NTA.
• Claimants had ceased to occupy their lands inline with traditional laws and customs.
• Interruption in the continuity of acknowledgment and observance of traditional law and custom had occurred.

Requirements to Prove Native Title

• Connection to the land and waters via traditional laws and customs: NTA s223 (1) (b)).
• Native title is possessed under the traditional laws acknowledged and the traditional customs observed by the claimant group: NTA s223 (1) (a).
• Existence of a society united by acknowledgement and observance of a body of laws and customs: NTA s 223(1)(a).
• Society, connection with land, and observance of traditional laws must:
• Exist pre-sovereignty.
• Continue substantially uninterrupted since British sovereignty.
• Exist at the present day.
• Native title is otherwise not recognised by the common law: NTA s 223 (c).
• Claimants bear the onus of proof.

Native Title Claims

• South West Native Title Settlement (The ‘Noongar’ Settlement)
• Negotiated settlement between the Western Australian Government and the Noongar peoples of Perth and South-West Western Australia.
• First legislated settlement of native title in Australia.
• The Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016 (WA):
• Recognises the Noongar people as traditional owners of parts of the South-West of WA
• A funding package of $1.3 billion cash injections together with land transfers to the Noongar people are included.
• Any future Noongar native title claims are renounced

Yamatji Nation Agreement 2020

• The state of Western Australia and the people of the Yamatji Nation entered into an Indigenous Land Use Agreement in 2020
• Agreement followed a Federal Court hearing recognizing the Native Title rights and interests of the Yamatji Nation
• Agreement covers:
• Recognition of Native Title
• Benefits package to ensure the social and economic independence for the Yamatji people.
• Resolves the State Government’s Native Title compensation liability for acts that have impaired or extinguished Native Title in the agreement area.
• Approx. 48,000 square kilometres of land in the Mid-West are involved.
• Estimated total value is about $500 million.
• The benefits package includes:
• Funding for business development
• Transfer of commercial land, joint ventures, tourism opportunities
• Access to housing properties for sale, leasing or development
• Mining and Leasing revenue
• water reserves
• Conservation estate
• Joint vesting and joint management opportunities
• Handback of about 15,000 hectares of land in freehold or conditional freehold
• Up to 90,000 hectares of land in the form of managed reserves.

Registration of Native Title Claims

• Can be registered on the Register of Native Title Claims at the National Native Title Tribunal.
• Native Title Act requires a physical connection with the land to be registered at the National Native Title Tribunal: NTA s190B(7)
• Without registration, the physical connection test does not have to be met

Prescribed Bodies Corporate (PBC)

• Regulated by:
• The Native Title Act 1993 (Cth)
• The Corporations Aboriginal and Torres Strait Islander Act 2006 (Cth) (CATSI Act)
• The Prescribed Bodies Corporate Regulation 1999 (Cth) (PBC Regulations)
• On the determination of a native title claim by the Federal Court, the claim group must nominate a PBC to hold their native title rights and interests as a trustee or agent.
• Refer to: NTA ss 55-57.

Native Title Representative Bodies

• Defined role set out in the Native Title Act.
• NTRBs prepare and research native title claims. Represent Aboriginal people in negotiations with resource corporations, industry bodies and government agencies.
• NTRBs are required to be parties to most of the Indigenous Land Use Agreements that are signed in their area.

Extinguishment of Native Title

• Is the termination or permanent ending of native title.
• Liable to extinguishment or impairment by government action. Refer to:Mabo (No 2)
• Native title could exist in Australia today where where native title has not been extinguished.

Extinguishment at Common Law

• Statutory Extinguishment: occurs via legislation showing a “clear and plain intention” to extinguish.
• Refer to: Mabo and Wik.
• Legislation that merely regulates enjoyment of native title rights will NOT extinguish native title.
• Refer to: Yanner.
• Non-Statutory Extinguishment: occurs via inconsistent Crown grants authorized by legislation, like granting fee simple.
• Test: “Inconsistency of incidents” between the grant and native title rights. Executive action must show a “clear and plain intention”.
• Refer to: Western Australia v Ward and Wik.

Wik v State of Queensland (1996) 187 CLR 1

• Extinguishment to the extent of necessary inconsistency.
• Extinguishment by inconsistent grant.
• Non-exclusive possession interests DO NOT NECESSARILY EXTINGUISH native title.
• Inconsistency is the inability of native title to co-exist with the interest granted.

Western Australia v Ward (2002) 213 CLR 1

• Extinguishment is by the “inconsistency of incidents” test.
• Objective inquiry requires identifying and comparing native title rights with third party rights.
• Inquiry is about inconsistency of rights, not inconsistency of use.
• Extinguishment occurs only with “inconsistency” between the statutory interest granted and native title rights

Western Australia v Brown (2014) 253 CLR 507

• Held mining leases do not extinguish native title.
• Native title rights for camping, hunting and holding traditional ceremonies were not extinguished by the mining lease
• Applied the Ward test for extinguishment – the inconsistency of incidents test.
• If the two sets of rights were inconsistent then native title rights were extinguished to the extent of inconsistency.
• The question of inconsistency was to be determined at the time of the grant.
• Inconsistency is based on rights and not on use.
• Re De Rose (No 2) (2005 Fed Ct): Improvements made post the grant, can extinguish native title (overruled)

State of Queensland v Congoo (2015) 320 ALR 1

• Land was used as a live fire artillery range during WWII following military orders.
• Possession was relinquished in 1946.
• Military occupation precluded civilian use.
• There was non-exclusive native title subject to the military orders.
• Full Federal Court: orders did not extinguish native title.
• High Court affirmed the decision.

Extinguishment at Common Law

• By Fee Simple (Mabo & Fejo)
• Common Law Exclusive Possession Leases (Wilson v Anderson 2002 HCA)
• Partial Extinguishment by Non-Exclusive Possession Interests
• NO necessary extinguishment by non-exclusive pastoral and agricultural lease or mining lease.

Extinguishment under the Native Title Act 1993 (Cth)

• Confirmation of Extinguishment Regime
• “Deemed Extinguishment”: Prior to 23 Dec 1996
• PEPAs extinguish native title totally
• PEPAs are valid / validated acts that have occurred on or before 23 December 1996 and include the grant or vesting of:
• a Schedule interest
• Freehold estate
• Commercial leases that are neither agricultural or pastoral
• Residential leases
• Exclusive possession leases
• Public works
• PNEPAs
• extinguish native title to the extent of inconsistency.
• are valid / validated acts that have occurred on or before 23 December 1996 and consist of non-exclusive agricultural leases and non-exclusive pastoral leases.

Validating “Past Acts” and “Intermediate Acts” Regime

• NTA validates Commonwealth “acts” that may be invalid. (ss 13, 14, 15 NTA.)
• Validation can result in extinguishment or suspension of native title.
• Past acts” are legislation enacted by the government prior to the passing of the RDA in 1975 NOT included in “past acts defined in s228 NTA.
• The acts and defined in s228 NTA are those occurring prior to 1 July 1993 for legislation and where grants of title prior to 1 January 1994.
• Invalidity will generally arise because the act contravened the RDA.
• Therefore, “past acts” will generally take place between 1975 – 1994.

Validation

• Can mean extinguishment, impairment or suspension of native title.
• Below is subject to NTA “confirmation of extinguishment” provisions.
• CATEGORY A: TOTAL EXTINGUISHMENT of native title – FREEHOLD and CERTAIN LEASES AND PUBLIC WORKS
• CATEGORY B: EXTINGUISH to the extent of Inconsistency – LEASES not in "A" or "C”.
• CATEGORY C/D: NON-EXTINGUISHMENT PRINCIPLE applies - MINING LEASES and ALL OTHER "ACTS”.

Non-extinguishment principle

• Native title will continue to exist and is merely suspended for the term of the interest.
• Once the interest expires native title will revive and again have full effect.

Validation of “Intermediate Period Acts”

• Occurs which between 1 January 1994 and 23 December 1996 (date of the Wik decision)*.
• Acts or grants made in this period are validated in accordance with CATEGORIES A-D above.
• Exception: Pastoral and Agricultural Leaseholds now in Category B.

Compensation for Loss of Native Title

Compensation at Common Law

• Mabo (No 2): The court split on the issue of compensation. A notional majority found no compensation.
• This would be subject to the RDA 1975.
• No compensation is payable to native title holders for any loss or impairment of native title prior to 1975.
• Where the Commonwealth extinguishes native title there should be Commonwealth Constitution compensation

Compensation under the NTA

• Is payable where native title is extinguished or impaired.
• Is paid on “just terms”.
• Alternative basis of compensation is the “similar compensable interest test”.
• Compensation is capped at “fee simple” value of the land.

Griffiths v Northern Territory (No 3) FCA 900

• Native title had been extinguished or impaired by past government acts, including land tenure grants and public works.
• Ngaliwurru and Nungali People were found to have held native title.
• Compensation of $3,300,261 million to be paid to traditional owners, based in three parts:
• (i) The value of the native title interest, based on 80 per cent of the freehold land value at the relevant time.
• (ii) Calculation of interest: assessed on the economic loss and calculated as simple interest.
• (iii) Compensation for non-economic loss, in recognition of the loss of the spiritual connection and traditional connection with the land.
• Full Court agreed with Mansfield’s approach but:
• Economic value of extinguished native title rights was 65% of the value of freehold title - Simple interest was appropriate award
• Mansfield J had not erred in exercising his discretion to fix the award for solatium.

Compensation for Native Title in the High Court

• Northern Territory v Griffiths (deceased) on behalf of the Ngaliwurru and Nungali Peoples (‘Timber Creek’) HCA 7.
• Issue was on the quantum of compensation
• Total compensation amount was approximately $2.5 million
• Economic value based on 50 per cent of the freehold land value
• Non-economic loss

High Court

• The extinguishment of native title rights is equivalent to 50% of the freehold value of the affected
• Compensation approach: the relevant test for valuing loss or impairment was ‘what would a willing but not anxious purchaser have been prepared to pay a willing but not anxious vendor?’
• A review of the particular native title rights that would have existed but for their extinguishment.
• Discount the freehold value by reference to the limited nature of the native title rights.
• Economic value at 65 per cent of freehold value was “manifestly” excessive given that the claim group’s native title rights did not include the right of exclusion, the right to control access to the land or the right to commercially exploit the land.
• Claim group was entitled to a $1.3 million in compensation for cultural loss.

Compensation Agreement in WA

• Tjiwarl Palyakuwa Compensation Agreement 2023
• Tjiwarl Aboriginal Corporation three native title compensation claims settled.
• Agreement provides compensation for State actions affecting Tjiwarl native title.
• Settlement features Monetar compensation, land transfers Creation and expansion of the Tjiwarl Conservation Estate .

Yunupingu on behalf of the Gumatj Clan v Cth FCAFC 75 (The Gove Compensation Case)

• The Gumatj Clan claims compensation from the Cth for the acquisition of land Minerals
• The claim the Commonwealth will be liable for compensation if acts affecting native title are invalid
• Full Federal Court held the acts of the commonwealth could be "compensable acts" under the NTA.

Future Dealings Regime in the NTA (Indigenous Land Use Agreements)

Future Acts

• New legislation passed and new titles granted
• Include those that Impact or “affects” native title because it extinguishes or is inconsistent with native title rights
• Do Not Include “Past Acts” or “Intermediate Period Acts” and Acts that DO NOT affect native title land
• A FUTURE ACT will be VALID if it is covered by the provisions of the NTA,
• A FUTURE ACT will be INVALID if: It affects native title and Is not covered by the legislation (s24AA).

The New Rights

• FREEHOLD EQUIVALENCE STATUS OF NATIVE TITLE
• The Crown can deal with native title land as it deals with “ordinary title”. Defined s253.
• RIGHT TO NEGOTIATE
• Title holders negotiate with government and the proposed grantee party prior to the government carrying out:
• certain compulsory acquisitions
• certain grants of mining interests

ILUAS and Future dealings

• Introduced with the Native Title Amendment Act 1998.
• Voluntary agreements between a native title group with Governments, companies, etc.
• Can address “Future Acts” and guide the “Claims Process”.
• Used with native title determination proceedings, enabling progression without court restrictions.

Explore the doctrine of tenure in Australian land law. Understand its historical roots in the feudal system and its relevance to modern land ownership. Learn about key concepts like tenants-in-chief, subinfeudation, and the impact of historical statutes.