Analysis of Real Property - Case Study Example

Introduction When Europeans James Cook took possession of Australia for the British in 1770,1 there were already Aborigines on the land. Yet, Australia was declared as terra nullius, which meant that it was land unoccupied by anyone. In effect, the British did not recognize the rights of the native inhabitants. Over the years, laws have been enacted in Australia to strengthen the hand of the federal government and the state governments, depriving Aborigines more and more of their heritage as far as land is concerned. As Aborigines have become accepted as part of Australia, they have been emboldened to use the tools available to them such as the laws of Australia to seek an opportunity to regain what they believe to be rightfully theirs. This case focuses on the case Wik Peoples v The State of Queensland [1996] and considers the principles for which this case is authority, the extent to which the case created new law, the extent, if any, to which the case is inconsistent with previously decided cases. The principles for which this case is authority A legal principle is a basic rule of law upon which cases can be based. In the Wik Peoples v State of Queensland ruling in 1996, the principle at stake was whether land that had been taken away from native people could once again revert to them. In the words of Ogden (1996), “The Wik case introduces the possibility that native title may indeed survive 'extinguishment' or at the very least may be subject to mere 'impairment' when conflict arises. This is a consequence of the re-conceptualisation of property rights that the practical outcome of the case necessitates.”2 The land for which the Wik people petitioned the federal government for entitlement encompassed the Mitchellton Pastoral Holdings and Holroyd River Holdings leases; the land had been given to Comalco Aluminium Limited and Pechiney Holdings under government statute. While the lands held by Comalco and Pechiney were dismissed unanimously by the High Court, “The Mitchellton leases were granted under the Land Act 1910 (Qld) but were never entered into possession and are currently Aboriginal Reserve Land, and the Holroyd lease was granted under the Land Act 1962 (Qld). The Holroyd lessees did enter into possession, and minimal improvements were made to the land.”3 The case hinged upon whether having granted pastoral lease to a company meant that the company was the exclusive possessor of that land, thus extinguishing any native title to the land covered by the lease. “By a majority of four to three the High Court held that native title is not necessarily extinguished by pastoral leases, which are sui generis and peculiar to Australia.”4 The extent to which the case created new law In fact, Wik v State of Queensland was not the first time that native title had been recognized. That distinction goes to Mabo v Queensland. As Edgerton (1997) writes: The existence of native title was first recognised in Mabo v Queensland [No 2]. Ever since the Mabo judgment, the courts have been concerned to protect the certainty of the land law system from any adverse effects that the recognition of native title might create. The High Court in Mabo held that terra nullius was an inappropriate foundation on which to base the Crown's claim to possession of Australia.5 In effect, the law was merely asserting that native people had not been treated well. Their lands had been taken away from them unfairly and that allowing individuals or companies to pursue pastoral activities on these lands did not nullify the sui generis title that the natives had had all along. Many farmers who felt affected by the ruling, however, sought to create an impression that the courts were allowing natives to win over mainstream white Australians. The difference between the Mabo and Wik cases is made clear by Edgerton (1998), who writes: The Mabo decision had only recognised native title once the court was satisfied that the certainty of the land law system would not be detrimentally affected. The Wik decision allowed native title to coexist on pastoral leases only to the extent that it did not conflict with the ability of the pastoralist to carry on pastoral activities. In both cases, maintaining the certainty of what had been granted by the Crown was a primary consideration.6 The extent to which the case is inconsistent with previous rulings The doctrine of precedent was for a long time held to be almost sacrosanct and the cornerstone of the judicial system. The longevity in the respect accorded to the idea of terra nullius rested upon this unwillingness to deviate from precedent. Those who desired to maintain a strict interpretation of precedent believe that it offers a measure of consistency as well as continuity and predictability, all of which are essential to maintain the public’s confidence in the judicial system. Prior to Mabo, there was one case that might have served as precedent if the Justices in the Mabo case had been inclined to follow suit. This was Millirrpum, for which Justice Blackburn of the Supreme Court of the Northern Territory presided. One of the questions in the Millirrpum case was whether Australian common law included a recognition of the doctrine of communal native title and secondly, whether the plaintiffs had any proprietary interest in the land for which they sought control. The first objection raised by Justice Blackburn was the plaintiffs had not sufficiently demonstrated “that their links to the relevant land were the same as their predecessors’ in 1788. Second, he found that as a matter of law, regardless of what new interpretations of the facts might conclude, New South Wales had to be regarded as a settled or occupied territory, rather than a conquered or ceded one.”7 In fact, Justice Blackburn did not directly use terra nullius in his rejection of the plaintiff’s case. The reasoning was that since New South Wales had been settled, “in principle from the moment of the foundation of a settled colony English law, so far as it was applicable, applied in the whole of the colony”.8 From this then it could be argued that native law, if any existed, could not be recognized. The fact that the courts have recently departed from precedent can be attributed in a shift in the thinking of some top justices such as Justice Lionel Murphy who “saw a risk of serious injustice in too rigid an adherence to precedent. He even went so far as to suggest that it was an approach ‘eminently suitable for a nation overwhelmingly populated by sheep.’9 Prior to the Mabo case, the Australian High Court had been consistent in denying natives any right to title. In effect, the Australian courts continued to affirm the doctrine of terra nullius, effectively, saying that native people did not count.10 Terra nullius had held that Aborigines were at such a basic stage of development that whether they had laws or not, they were subject to the protection of the British crown. When an attempt was made by Aborigines to overturn this law in the Gove Land Rights case, Milirrpum v Nabalco Pty. Ltd. and the Commonwealth of Australia, the judgment came down against the plaintiffs. Justice Blackburn, writing in 1971, held that: The question [whether NSW was a settled colony or otherwise] is one not of fact but of law. Whether or not the Australian aboriginals living in any part of New South Wales had in 1788 a system of law which was beyond the powers of the settlers at that time to perceive or comprehend, it is beyond the power of this Court to decide otherwise than that New South Wales came into the category of a settled or occupied colony.11 This had been the conventional wisdom up to Mabo, which raises the question as to whether the decision in Wik v Queensland was correct. The Correctness or Otherwise of the Decision Law is not immutable. It is a reflection of the sensibilities, customs, beliefs, expectations, of a people. This explains why one thing may be considered legal in one place but illegal in another. Time, also, can change the sensibilities of a community, or at least, those of some members of a community. In the Mabo case, Justice Brennan relied not only on past cases in Australia that had drawn on the terra nullius argument but also on international law. In one case, Justice Brennan drew on “the Advisory Opinion of the International Court of Justice in the Western Sahara case in 1975 rejecting the application of the concept of terra nullius in the circumstances of Spain's occupation of the Western Sahara in 1884; and secondly, the traditional concepts of English customary law.”12 Both cases had played a part in the broader context of European colonization and decolonization with the Western Sahara opinion being very much a reflection of current international human rights. As Beaumont (1999) writes regarding the Mabo case, In so far as an important feature of the Spanish occupation of the Western Sahara was the course of dealings between the Spanish authorities and local chiefs, the Western Sahara case may be distinguished from the process of European colonisation of Australia. But, as Brennan J emphasised, the significance of the Western Sahara case for our purposes was first, the obsolescence of the terra nullius doctrine; and secondly, the need to avoid racial discrimination.13 Another element that seems to have come into play was that English law’s respect for common law rested upon reasonableness; this means that it would not customarily hold on to something that seemed “’repugnant to natural justice, equity and good conscience.’ Thus, it has been held that recognition of a custom will be denied, as unreasonable, if it is beneficial to one person only. In other words, a communal or collective dimension is necessary if the common law is to afford recognition.”14 This means that as long as Australians refused to see that terra nullius was not unreasonable that law could hold by common consent. As some Australians have begun to question the justness of this principle, however, its foundation became weak. To be sure, there are those who still believe it is right, but in a small way, public opinion has shifted towards recognizing the truth that there were people in Australia when the Europeans came and that to declare that it was terra nullius was simply a piece of convenient fiction. Indeed, if Captain Cook had truly believed in terra nullius and those with whom he had held power also believed in this doctrine, then they had all the authority and the fire power necessary to hang on to this belief and with that take control of resources that were previously under the stewardship of the Aborigines. This, however, does not make the law morally right. As more and more Australians have learned about the history of the formation of Australia and about the maltreatment of the natives, they have come to believe that even though they enjoy the privileges handed down by their ancestors it is time to let justice and fairness prevail. Mabo opened a crack towards true justice, one for which all Australians ought to be proud. Wik v Queensland affirmed that Australians are on the path towards justice though it would be too optimistic to say that society has arrived at the point of reversing all the wrongs of the past. References Beaumont, Bryan. 1999. Native (Traditional) Title in Australia and the South Pacific: Some Reflections. Australian Bar Review, 18, 23. Evans, Ray. Gnosticism And The High Court. Quadrant, (June, 1999). Kirby, Michael. 2007. Precedent law, practice and trends in Australia. Australian Bar Review, 243, 28. Land title claims undermine Australian development projects. Project & Trade Finance, vol 125 (1993):3. Land Rights issue explodes in Australia. International Commercial Litigation, no 17 (2). O’Sullivan, K.D. & Wilson, A.J. Native title comes to the fore in Australia. International Commercial Litigation, no 18 (1997):40. Van Krieken, Robert. 2000. From Milirrpum to Mabo: The High Court, Terra Nullius and Moral Entrepreneurship. http://www.austlii.edu.au/au/journals/UNSWLJ/2000/17.html [Retrieved April 15, 2009] Venn, T.J. Property Rights of Wik People to Timber Resources on Cape Your Peninsula, Australia. dlc.dlib.indiana.edu/archive/00001217/00/Venn_-_Wik_Timber_rights [Retrieved April 13, 2009] Wik Peoples v State of Queensland: Extinguishment of Native Title. http://www.austlii.edu.au/nz/journals/VUWLRev/1998/16.html [Retrieved April 13, 2009] Read More