Mabo Case and Native Title - Essay Example

Essay 1 Mabo case and Native Title The Decision in the case of The Mabo(2) (1) recognised the native rights and legal and proprietary rights of land of the native aborginal people. The decision of the case was fraught with many serious consequences and sections of the mining and pastoral industries, and conservative politicians, reacted angrily to the High Court's decision and urged the Commonwealth Government to overturn it by legislation. They conducted a massive fear campaign against the newly established land rights of Indigenous Australians. In response to the Mabo judgment the Australian Federal Parliament had to enact the Native Title Act, 1993. The Act was amended in 1998 following the Wik Decision. (2) The outcome of the case can be understood in the backdrop of the land laws in Australia. The English Doctrine of Crown Land, Doctrine of Tenure and Estate were implanted in Australia being a settlement on unpopulated/uninhabited or terra nullius as opposed to a populated country conquered by another where native laws and customs governing it subsist till they are replaced by laws enacted by the conquering country. In the case of a conquered country, the general rule was that the laws of the country continued after the conquest until those laws were altered by the conqueror (4). 1. Mabo & Ors. v Queensland (No.2) (1992) CLR 1 2. Wik Peoples v.Queensland (1996) 134 ALR 637 3. See A. James, Sovereign Statehood, (1986), pp 3ff., 203-209; 4. Blankard v. Galdy (1693) Holt KB 341 (90 ER 1089); Campbell v. Hall (1774) Lofft 655, at p 741 (98 ER 848, at pp 895-896); Beaumont v. Barrett (1836) 1 Moo PC 59 (12 ER 733; Shearer, I A (1994) Starke’s International Law 11th ed Butterworths, London; In Mebo (2) case, it was largely determined and considered upon the facts and evidence that Australia was not terra nullius when English came and settled there; and was habited by aboriginal people and in 1879, the Meriam people were settled on their land, the gardens were being tilled, and they were socially organized. (5) For this reason alone the doctrine of tenure and estate were not applicable to the native land. The doctrine of tenure and estate The doctrine of tenure (Latin; tenere meaning to hold, possess or occupy) as a doctrine of English law implies that all land excepting native title is vests in monarch or king and a system of hierarchy of feudal system was prevalent. (6) In Australia, the ‘crown’ refers to the sovereign government, ultimate owner of land. This title is also referred ultimate or radical title of the crown to the land.(7) Since in feudal England, owning all land was privilege was a grant from or of the monarch, people did not own’ land themselves, they merely held an interest which with times was referred to as estate. In doctrine of estates there are two types: freehold (uncertain duration) or leasehold (fixed duration). There are two categories of freehold estates that continue to exist: the fee simple estate (passes to heirs) and the life estate.` With the evolution of law in Australia, four types of system of land laws which assign the interests in the land have come to be categorized :old system title, Torrens 5. supra, note 1 6. Attorney-General of Ontario v. Mercer (1883) LR 8 App Cas 767, at pp 771-772, 2002) Tooher, J & Dwyer, B Introduction to Property Law ed Butterworths,Sydney 7. Amodu Tijani v. Secretary, Southern Nigeria (92) (1921) 2 AC 399, at pp 403, 404, 407; Nireaha Tamaki v. Baker (93) (1901) AC 561, at p 580; cf. Administration of Papua and New Guinea v. Daera Guba (94) (1973) 130 CLR 353, at pp 396-397. title (named after Robert Torrens, the founder of this title), crown land and native title. Under Real Property Act,1900 (NSW) under which to prove ownership two things are required : (a) certificate of title (single document or title deed) or ownership title contained in the Register to record land titles in NSW. (a) Indefeasibility which means title being unable to be set aside. Native Land The native title to the land is the title which traditionally belongs to the aborigines of Australia before arrival of English and in effect approves that there existed organized system of governance of aborigines. Hence, the English doctrine of Estate and Tenure cannot be attracted to such titles. The High Court case of Mabo (No 2) set out a number of factors which must be present to establish native title (also known as traditional or customary title) in Australia which was further elaborated in subsequent cases.(8) It was stated in Mabo (2) (9) the common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that ,subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance which their laws of customs is preserved, as native title. the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands. Queensland. Gummow J in Wik case held (10) It (native title) may comprise what are classified as personal or 8. Wik Peoples v Queensland (1996) 134 ALR 651 9. supra, note 1 10. supra note 2 communal usufructuary rights involving access to the area of land in question to hunt for or gather food, or to perform traditional ceremonies. This may leave room for others to use the land either concurrently or from time to time. A conclusion as to the content of native title is to be reached by determination of matters of fact,ascertained by evidence. Thus, the following are the key features of native title: (i) continuing connection to the land; (ii) usually communal though sometimes individual; (iii) it is inalienable, that is, it cannot be disposed of or transferred beyond the community, though it can be surrendered to the crown; (iv) it is dependant on the laws and customs of indigenous peoples, so native title may vary between different indigenous groups; Under Section 223.(1) of the Native Title Act, the expression "native title" or "native title rights and interests" means the communal, group or individual rights or interests of Aboriginal people or Torres Strait Islanders in relation to land or waters, where the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal people or Torres Strait Islanders; and the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and the rights and interests are recognized by the common law of Australia In conclusion, it may be said that the Mabo case (2) was historic in its import but the Native Title Act has clipped the rights sought to be asserted by the said decisions and claiming and proving native rights is a long drawn procedure. 11. Wik Peoples v Queensland (1996) 134 ALR 651 12. supra, note 1 13. supra note 2 Essay Two. Fixtures and Chattels Land includes fixtures and chattels and whatever is attached to the soil becomes a part of the soil (and is therefore owned by the owner of the soil’(1) Chattels is an item which is not a fixture. In law, it is separate from the land. Fixture refers to anything attached to the land and it depends on the intention or purpose of the person, if an item was degree of annexation and the surrounding circumstances.(2). The object and intention of attachment test was applied in Melluish v BMI (No. 3) Ltd(3) relying on the Holland v Hodgson (4) and it was held that whether the materials and things with which a house/bunglow is constructed becomes chattels or fixture depends on the circumstances of each case, but mainly on two factors, the degree of annexation to the land, and the object of the annexation. In Reid v Smith (5), Griffith CJ stated that the object of annexation of particular item decided whether it is a chattel or fixture. In Snedeker v Warring(6) Parker J said: ‘A thing may be as firmly affixed to the land by gravitation as by clamps or cement. Its character may depend upon the object of its erection.’ 1. (1997) Australian Property Law Dictionary Butterworths Sydney 2. Standard Portland Cement Co Ltd v Good (1982) 57 ALJR 151 and Re Cosslet((Contractors) Ltd [1998] 2 WLR 131 3. [1996] AC 454) 4. (1872) LR 7 CP 328 5. (1905) 3 CLR 656, 659 6. (1854) 12 NY 170, 175 In Goff v O’Conner (7), the court said that houses, in common intendment of the law, are not fixtures to, but part of, the land. And the uses and purposes of house for which they were erected and designed is of vital import. This and similar tests are useful when one is considering an object such as a tapestry, which may or may not be fixed to a house so as to become part of the freehold.(8) So, it would be seen that the test of whether a chattel, which has to some extent been fixed to the land, is a fixture was said to be whether it had been fixed with the intention that it shall remain in position permanently or for an indefinite or substantial period of time, or whether it had been fixed with the intent that it shall remain in position only of temporary purpose. In the former situation it is a fixture, whether it had been fixed for the better enjoyment of the land or the building, or fixed merely to steady the thing itself, for the better use or enjoyment of the thing fixed. In contrast, in Mitchell v McNeil(9) and Permanent Trustee Australia Ltd v Esanda Corporation Ltd(10) houses were held not to be fixtures. Spryer v. Phillipson (11) held panelling was removable. Conclusion On the basis of the foregoing analysis, it can be concluded that prima facie, anything that is annexed to the land is a fixture and the onus of proof is on that person who claims that it is a chattel. Anything which is not attached to the land is a chattel and the onus of proof is on that person who claims that it is a fixture. (12)The intention with which a chattel is attached to the land is an important consideration. Intention will normally be gathered from the objective facts relating to the annexation of the object. .Where intention and/or the degree of annexation are not sufficient to enable the court to conclude it is important to consider that whether the object was attached for the better 7. (1855) 16 Ill 421, 423 8. see Leigh v Taylor [1902] AC 157 9.(1990) 11 WAR 153)]’ 10. (1991) NSW Conv R 55-593 11.(1931) 2 Ch.183 12.P.J.Butt, The Standard Contract for Sale of Land in New South Wales, Law Book Co. enjoyment of the land or for the better enjoyment of the thing itself and the use to which the item was intended to be put, that is, whether it was to be used as an item independent of the realty or was it to be used as part of the realty. One test could be whether the object could be removed without substantial damage to itself or the land.(13) In Holland v Hodgson (14), it was held that looms attached to the floor with nails were fixtures despite the fact that they were easily removable and the annexation to the floor was only to enable them to be steady in use because the looms were placed in the mill in order to enhance their purpose and value. On the contrary, large 45-ton printing presses secured to a concrete base by nuts and bolts for steadiness when in operation were held not to be fixtures because they were affixed for the more efficient use as presses rather than to enhance the land. (15) But some more modern decisions have looked to the actual subjective intention in trying to ascertain the period of time the chattel is to remain affixed and the function it will serve. The test of the degree of annexation as applied in N H Dunne Pty Ltd v L M Ericsson Pty Ltd. (16) and also whether the item could be removed without substantial damage to itself or the realty. Different views have been expressed as to whether at common law the owner of the surface owns all the airspace above it. The opposing view has been that he owns only that part which is necessary for the ordinary use and enjoyment of the land. This latter view was preferred in the English case. (17) 13.Estate Agency Law & Practice 4th Ed. [1405] 14. (1872) LR 7 CP 328 at 335 15. A-G (Cth) v R T Co Pty Ltd (No 2) (1957) 97 CLR 146 16. N. H. Dunne Pty Ltd v L. M. Ericss Ball-Guymer v Livantes (1990) 102 FLR 327 at 331 17. Bernstein v. Skyviews & General Ltd. (1978) QB 479 Bibliography 1. Administration of Papua and New Guinea v. Daera Guba (94) (1973) 130 CLR (1997) 2. Amodu Tijani v. Secretary, Southern Nigeria (92) (1921) 2 AC 399, 3. Attorney-General of Ontario v. Mercer (1883) LR 8 App Cas 767, 4. Australian Property Law Dictionary Butterworths Sydney 5. A. James, Sovereign Statehood, (1986) 6. Beaumont v. Barrett (1836) 1 Moo PC 59 (12 ER 733) 7. Blankard v. Galdy (1693)Holt KB 341 (90 ER 1089) 8. Campbell v. Hall (1774) Lofft 655 9. Goff v. Conn.(1855) 16 Ill 421, 423 10. Holland v Hodgson (1872) LR 7 CP 11. In Reid v Smith (1903) 3 CLR 656 12. Leigh v Taylor [1902] AC 157 13. Melluish v BMI (No. 3) Ltd(4) [1996] AC 454 14. Mitchel v. Mcneil 1990) 11 WAR 153) 15. Mabo & Ors. v Queensland (No.2) (1992) CLR 1 16. Nireaha Tamaki v. Baker (93) (1901) AC 561 17. N H Dunne Pty Ltd v L M Ericsson Pty Ltd (1990) 102 FLR 327 at 331 18. Permanent Trustee Australia Ltd v Esanda Corporation Ltd (1991) NSW Conv R 55-593 19. P.J.Butt, The Standard Contract for Sale of Land in New South Wales, Law Book Co. 20. Re Cosslet((Contractors) Ltd [1998] 2 WLR 131 21. Shearer, I A (1994) Starke’s International Law 11th ed Butterworths, London 22. Spryer v. Phillipson (1931) 2 Ch.183 23. Standard Portland Cement Co Ltd v Good (1982) 57 ALJR 151 24. Tooher, J & Dwyer, B Introduction to Property Law ed Butterworths,Sydney 25. Wik Peoples v.Queensland (1996) 134 ALR 637 Read More