A man's house is his castle.1

Property Law Table of Contents

In this chapter

Introduction

(a)	Estates in Land
(b)	Joint Estates
(c)	Legal & Equitable Estates in Land

Systems of Title to Land in New South Wales

(a)	Old System or Common Law Title
(b)	The Real Property Act, 1900
(c)	Qualified Title
(d)	Limited Title
(e)	Strata Titles Act, 1973
(f)	Community Title
(g)	Crown Lands Act, 1989

Native Title - The Mabo Decision


1.	Introduction.

(a)	Estates in Land.

All land is held from the Crown. In early times a person who held directly from 
the Crown was called a "freeholder" and said to have a "freehold". This was 
because the services which he rendered for it (e.g. military service) were 
thought to be worthy of a free man. Today freehold tenure signifies that land is 
held without any person interposed between the Crown and the holder.

The greatest freehold estate is an estate in fee simple or in fee. The holder in 
fee simple is the absolute owner. Contrasted with freehold is leasehold which 
signifies that land is held from a person who himself holds from the Crown.

There are freehold estates other than fee simple. Land may be vested in a person 
for the duration of his life and upon his death to other persons. The former is a 
"life tenant" and the latter are "remaindermen". These are estates for life and 
estates in remainder but both are freehold estates.

(b)	Joint Estates.

Where two or more persons own land they will usually own the land as joint 
tenants or as tenants in common. The land itself is not divided. The whole 
of the land is owned by all owners and each one's interest extends to the whole. 
Each owner has the right of possession of the whole but not to the exclusion of 
the other owners. This is what is called the unity of possession.

The word "tenancy" in "joint tenancy" and "tenancy in common" does not refer 
to the relationship of landlord and tenant. Tenant is a word of French origin 
which means "holder".

Joint tenancy is characterized by the four "unities":-

*	Unity of possession referred to above;

*	Unity of title i.e. the estates of all joint tenants must have been created 
	by the same document;

*	Unity of time i.e. the estates must vest in them at the one moment; and

*	Unity of interest i.e. they must have the same kind of interest e.g. fee 
	simple.

An important aspect of joint tenancy is survivorship. If a joint tenant dies the 
survivors remain joint tenants of the whole and so on until there is only one 
survivor who becomes the sole owner. Therefore a joint tenant cannot dispose 
of his interest by will. It is common for a husband and wife to buy their home as 
joint tenants.

Although tenants in common have unity of possession a tenancy in common 
does not need a unity of title, unity of time or  unity of interest. In regard to 
interest, one person may hold a one-third interest and another a two-third 
interest. Each may dispose of his share during his life or by will. Upon death a 
share is not extinguished but passes to the persons entitled to succeed to his 
assets either under his will or upon intestacy.

Documents vesting land in two or more persons will expressly state whether the 
title is to be held by them as joint tenants or as tenants in common. In the 
absence of an express indication, the common law rule was that they took as 
joint tenants. Legislation endorses this presumption2  or reverse 
it3  .

A joint tenancy may be "severed" where one person transfers his interest to 
another person. This cannot be done by his will for the will "speaks" only from 
death and at his death his interest is extinguished. However, if A, B and C are 
joint tenants, A may sell his interest to X. In this event B and C remain joint 
tenants as to an undivided two-thirds interest and B and C collectively will be 
treated as a tenant in common with X who has an undivided one-third interest.

(c)	Legal & Equitable Estates in Land.

A legal owner may not be entitled to the benefits associated with ownership but 
may be compelled to hold the land for the benefit of another. That other person 
is called the beneficial or equitable owner. An example is a trust. The 
trustee is the legal owner and at common law is the only person recognised as 
the owner. The equity courts however recognise and protect the rights of the 
beneficiary (or cestui que trust).

Equity "follows the law" and it is possible to have equitable estates in fee simple 
and equitable life estates. Further, since equity regards as done that which 
should be done, at the moment when a contract for the sale of land is entered 
into the purchaser becomes the equitable owner. The vendor remains the legal 
owner but holds the legal title as trustee for the purchaser. When the sale is 
settled the vendor must transfer the legal title to the purchaser and the purchaser 
must pay the balance of the purchase money. Equity will decree specific 
performance of a contract for sale of land. The same principle applies to an 
agreement to grant any kind of interest in land e.g. an agreement to grant a lease.

A person having an estate or interest in land has property which he can dispose 
of during life or by will. Such estate or interest also entitles the holder to 
compensation in the event of compulsory acquisition of the land by a public 
authority. Torrens title legislation also entitles the holder of an estate or interest 
in land to lodge a caveat forbidding registration of dealings with the land 
inconsistent with his interest and is afforded an opportunity to oppose 
registration. 

A contract may relate to land but give no estate or interest in land. A contract for 
the sale of land may be subject to the happening of some event e.g. the giving of 
some official approval or consent. Although the disponee will be able to get an 
order of specific performance that the disponor take all proper steps to secure the 
approval or consent the disponee is not entitled to call for a transfer from the 
disponor. As he is not entitled to specific performance of the contract for sale 
and therefore does not have an estate or interest in the land4  . A 
person having an 
option to purchase has an estate or interest since he is entitled to call for a 
transfer upon fulfilling all conditions precedent e.g. giving notice and tendering 
the price. The holder of a right of pre-emption is entitled to nothing unless the 
proprietor chooses to sell the property, something which he may never, and is 
not obliged to do5  .

When considering competing equitable interests the general rule is "whichever is 
first in time prevails". If A owns land and contracts to sell B and later signs a 
contract to sell to C. The equitable estate of B prevails over that of C, i.e. B 
takes the land and C has only a personal action against A for breach of contract. 
Neither purchaser having obtained the legal title. If, however, C had completed 
his purchase and obtained the legal estate, his claim would prevail by virtue of 
the principle "where the equities are equal the law shall prevail". For equities to 
be equal, however, it must not appear that C knew of B's earlier equitable 
interest. If that were the case C could not claim to have an "equity" equal to that 
of B, and even though C subsequently obtained legal ownership, he would be 
defeated by B's prior equitable title. This is however subject to any statutory 
provisions regarding registration of title to land.

2.	Systems of Title to Land in New South Wales.

(a)	Old System or Common Law Title.

At the foundation of the Colony of N.S.W. all land was vested in the Crown 
under common law title. Old system conveyancing (also known as common law 
or general law conveyancing requires the title of the current owner to be 
established at the time of each transaction by tracing title back a certain period of 
years. It involves the devolution of title to land by successive transactions and 
events which form a chain of title.

There is no guaranteed or perfect title and the maximum period required for 
proof of title is from a date which at the time of investigating title commences 
with a good root of title at least 30 years previously 6  . A good 
root of title 
would normally be a sale or mortgage of land.

A transfer of the fee simple in old system land is in the form of a deed of 
conveyance. The Conveyancing Act Schedule 2 sets out a short form of 
conveyance. There is a registration system enabling documents affecting title to 
old system land to be registered. The Registration of Deeds Act, 1897 was 
repealed in 1984 but a General Register of Deeds is maintained. Registration is 
important to ensure priority where there are conflicting dealings involving the 
land. However registration does not guarantee title or cure any defect in 
documentation. Under old system title, if a purported sale is a nullity, e.g. a 
third party forges the signature of the true owner the document is ineffective to 
pass title to a bona fide purchaser.

Also under old system title where a person occupies land in circumstances 
constituting adverse possession for a continuous period of 12 years the adverse 
possessor will gain a good legal title in fee simple and the title of the owner of 
the documentary title is extinguished. The true owner can protect his title by 
recovering possession however he will be statute barred from doing so after 12 
years.7  

Investigating old system title is more costly and time consuming than Torrens 
title. Under Part IV of the Real Property Act persons claiming certain interests in 
land e.g. an owner in fee simple, a mortgagee or a purchaser under a contract of 
sale, can apply to bring the land under the provisions of the Real Property Act. 
The application, called a primary application is lodged with the Registrar-
General. After the title has been established and the boundaries accurately 
defined by survey plan a folio of the register for the land issues. One 
inducement for making a primary application is that land cannot form part of a 
strata plan unless it is held under Torrens title.

(b)	The Real Property Act, 1900.

(i)	The Scheme of the Torrens System.

The Torrens system of registration of titles was introduced in N.S.W. in 1863. 
Approximately 95 % of land in N.S.W. alienated by the Crown is now held 
under the provisions of the Real Property Act, i.e. under Torrens title.

The important feature of the Torrens system is that it is not a system of merely 
registering documents to enable them to be searched (as the Registration of 
Deeds Act, 1897) but it is a system of title by registration. Registration of a 
"dealing" under the Act vests title in the proprietor of that interest. On 
registration the holder of a registered interest, acquiring it in good faith and for 
value, obtains an indefeasible title. This means a conclusive title which 
cannot be attacked even by the former registered proprietor who may have lost 
his title through an instrument on which his signature has been forged.

At common law a forged instrument was void and ineffective or if procured 
through the fraud of a third party could be set aside restoring the true owner's 
title. Under the Act subject to some limited exceptions, the title obtained through 
registration is an absolute State guaranteed title, free from unregistered interests.

The Act also provides that persons deprived of an interest in land for example 
through fraud or some error, omission or misdescription in the Torrens register, 
may recover the damages suffered. If damages cannot be recovered from the 
wrongdoer an assurance fund has been set up for that purpose. However it may 
be argued that the fund does not achieve its objective because of the difficulty of 
claiming from the fund.

An owner in fee simple is the registered proprietor of Torrens title land and his 
interest is noted on a certificate of title issued by the Register-General. When he 
transfers the land, on the registration of a memorandum of transfer, the name of 
the new registered proprietor is noted on the certificate of title and the name of 
the former registered proprietor is deleted. When the registered proprietor deals 
with the land, by granting a mortgage, or lease, or easement, that can be 
registered on the certificate of title.

The title of the holder of an interest less than the fee simple is evidenced by the 
particular dealing e.g. a registered mortgage or lease. The holder of the interest 
is the registered proprietor of the mortgage or lease. There are approved forms 
for different types of dealings which must be used in order that these dealings 
may be registered. Only registered dealings are recognised as statutory interests 
under the Act. The certificate of title contains details of the parcel and of 
registered interests held over the parcel. The concept of a certificate of title has 
been replaced by "folio of the Register". The form and contents of a folio are 
similar to those of the former certificates of title.

Formerly when the title deed issued to the first private owner the purchaser from 
the Crown received a Crown grant. In the future the first registered proprietor 
will be recorded as the proprietor on the folio of the Register relating to the 
parcel of land. The legislation permits the conversion of all parcels of land, 
including those held under Crown land title to the Torrens system.

A recent objective is the rapid computerisation of the entire Torrens register. In 
1983 automation commenced by creating computer folios for parcels in new 
subdivisions. Successively automation will cover parcels held under strata title 
and then all parcels held under Torrens title. The registered proprietor receives 
as evidence of his title a certificate of title, which replaces the duplicate certificate 
which formerly issued to proprietors when the original certificate of title was 
held by the  Registrar-General.

(ii)	Unregistered Interests.

Unregistered interests are not invalid or illegal. Some unregistered interests, if 
recorded on a form registrable under the Act may be registered. There are 
several types of interests not capable of registration e.g. a declaration of trust 
whereby the registered proprietor declares that he holds the whole or part of the 
land on trust for someone else.

A person claiming entitlement to an unregistered interest in land under the Act 
may lodge a private caveat forbidding the recording of any dealing affecting 
that interest until after notice shall have been given to the person lodging the 
caveat (called the caveator). A caveat may be lodged by a purchaser after having 
entered into a binding contract to purchase the land or by a mortgagee who 
advanced moneys on the security of a mortgage which is unregistered.

To lodge an effective caveat a person must have an identifiable interest in the 
land at law or equity. For example, a plumber to whom money is owing for 
plumbing work done on improvements on the property, or a real estate agent 
claiming commission on a sale, cannot lodge a caveat, being only entitled to a 
debt against the owner without having any interest in the land. The registered 
proprietor can apply to have a caveat removed. If a caveat is removed having 
been lodged without reasonable cause any person who sustained damage may 
recover compensation for the damage.

It is interesting to note that in the conduct of family law property cases it has 
proved to be a cheap and expeditous method of restraining a spouse from 
disposing of real estate, to avoid a prospective claim against that property in the 
Family Court, to lodge a caveat on the title to the property. The Registrar-
General takes the view that the prospective rights of a spouse "pursuant to the 
Family Law Act should not be capable of protection by way of caveats.

An equitable charge has been held to be a caveatable interest8   as 
was a 
purchaser's lien over the land for the deposit or part purchase price 
paid2  . 
However it is more difficult to say whether a purchaser has a caveatable interest 
under a conditional contract. This is because until the condition is satisfied all 
the purchaser has is a contingent equitable interest. It seems to be that if equity 
will not recognise and protect the purchaser by way of specific performance, 
injunction or otherwise there is no caveatable interest10  .

In 1986 the statutory provisions dealing with caveats were substantially 
amended11  . The required manner of description of the estate or 
interest claimed 
by the caveator, which was the subject of a substantial body of case law is now 
prescribed by regulation12  . It is not part of the Registrar-
General's function to 
investigate whether the caveator's claim to an interest in the land is 
genuine13  . 
While the caveat remains in force the Registrar-General cannot record in the 
register any dealing which appears to him to be prohibited by the caveat. There 
are two qualifications to this. The first is that a caveat does not prohibit the 
recording in the Register of certain kinds of dealings. The second is that a caveat 
does not prevent the recording of a dealing already lodged in registerable 
form14  .

The registered proprietor or any person claiming an estate or interest in the land 
may request the Registrar-General to serve upon the caveator a notice requiring 
the caveator within 21 days to obtain a Court order extending the 
caveat15  . 
Failure by the caveator to comply will cause the caveat to lapse to the extent that 
it would prohibit the recording of the dealing in question. Once a caveat has 
lapsed or been withdrawn, no further caveat can be lodged by the same caveator 
in respect of the same estate or interest in and purporting to be based to based on 
the same facts, except by leave of the Court or the consent of the registered 
proprietor.

(iii)	Exceptions to Indefeasibility.

Until registration a purchaser of land under Torrens title may be in a less secure 
position than a purchaser of land under old system title. On settlement a 
purchaser of old system land receives a deed of conveyance which vests the 
legal estate in him and he will take free of any prior equitable interest in the land 
provided that he has taken for value and without notice of that interest. A 
purchaser of Torrens title land however on settlement still has an unregistered 
(equitable) interest only and does not acquire the benefits of an indefeasible title 
until registration which may not take place until some time after settlement. Until 
registration his interest is liable to be postponed to an earlier unregistered 
interest.

Section 43A of the Act affords to a purchaser of Torrens title land who has, at or 
before settlement, no notice of outstanding unregistered interests "the same 
measure of protection as that given at common law to a person who has acquired 
a legal estate in land without notice of some prior equitable interest" and he is 
thereafter "entitled to perfect his title by registration". There must be an 
immediately registerable dealing, no notice by the purchaser and no void dealing 
(e.g. a forged dealing).

A special condition is often added to the standard form contract to the effect that 
a purchaser will accept on settlement an unregistered discharge or withdrawal 
thereof in registerable form together with an allowance for lodgment fees. But it 
is highly doubtful that a purchaser could insist that the mortgage be registered or 
caveat withdrawn prior to settlement because of the protection the purchaser 
receives under s. 43A.

The title of the registered proprietor is defeasible for fraud16  . 
However 
knowledge of the existence of any trust or unregistered interest is not of itself to 
be imputed as fraud. Fraud must be "actual fraud, moral turpitude". It is not 
fraud to purchase with notice of an unregistered lease to become registered as 
proprietor and then to evict the lessee relying on the indefeasible title conferred 
by registration. Nor is it fraud to register promptly with the purpose of defeating 
a claim over the land which may be established by pending litigation. A title 
would be defeasible for fraud where the purchaser takes not merely with notice 
of the unregistered interest but having given an assurance that the interest will be 
preserved.

A number of exceptions to indefeasibility are set out in s. 42(1):-

*	Estates and interests as are recorded in the folio. The true import of a 
dealing prevails over the way in which its import is recorded in the folio 
of the register and a purchaser is bound to go behind that recording to 
the dealing itself to satisfy himself of the rights created by it.

*	Any right of way or easement misdescribed in or omitted from the 
register.

*	Any portion of land which may by wrong description of parcels be 
included in the folio but not if the registered proprietor is a purchaser 
for value.

*	Tenancies the term of which together with any option for renewal does 
not exceed 3 years under which the tenant is in possession or entitled to 
immediate possession and of which the registered proprietor had notice. 
Notice may be actual or constructive notice. Such leases may be 
registered and because of their less than absolute protection it would be 
prudent for such leases to be registered or at least safeguarded by a 
caveat.

(iv)	Possessory Title under the Torrens System.

Until 1979 it was impossible to acquire title over Torrens title land by adverse 
possession. The registered proprietor's indefeasible title was protected against 
trespassers. However there were thousands of Torrens title parcels which had 
been sold or dealt with without any change of ownership being recorded in the 
Torrens register. Part VIA of the Act enables persons claiming title to whole 
parcels of land to make possessory applications. The successful conclusion of a 
possessory application is the creation of a folio of the Register in favour of the 
applicant who then holds an indefeasible title to the land.

(c)	Qualified Title.

The Registrar-General is entitled to issue a qualified folio of the Torrens register 
for old system title land, in some circumstances, the most important being on 
registration of a new subdivision or on the sale or mortgage of the land. Usually 
a qualified folio of the register will only issue where there has been a relatively 
recent survey definition of the land accurately identifying its boundaries.

The issue of a qualified folio is entirely at the Registrar-General's discretion but 
current policy is to reduce the number of old system titles in N.S.W.. The 
Registrar-General's Office does not investigate title to the land so that the title is 
subject to any "subsisting interests" i.e. any interests in the land in existence at 
the date of issue of the folio, even if it is not noted on the certificate of title. A 
caution to this effect is entered on the folio.

A person who becomes the registered proprietor of the land, after the land has 
become subject to the qualified title, for valuable consideration, may apply to 
have the caution removed after six years from the issue of the qualified title. 
Even if there has been no dealing for valuable consideration the caution lapses at 
the end of 12 years after issue of the qualified title. Whilst land is under 
qualified title, proof of title involves establishing a good common law title for 
the period prior to the issue of the qualified title.

(d)	Limited Title.

When the boundaries of the land are not sufficiently defined to enable the 
Registrar-General to create either an ordinary or a qualified folio of the Torrens 
register a limited folio can be created.

The Registrar-General records on a limited folio that the description of the land 
has not been investigated. The title to a former old system parcel of land for 
which a limited folio has been created is qualified  The Registrar-General 
records on a limited folio that the description of the land has not been 
investigated. The title to a former old system parcel of land for which a limited 
folio has been created is qualified as regards the title and is limited as regards the 
boundaries of the parcel. The limitation can be removed by the registration of a 
plan of survey which adequately defines the boundaries of the land.

(e)	Strata Titles Act, 1973.

Before 1961 there was no legal mechanism to subdivide a building in order to 
create separate title and ownership to parts of buildings. The legal mechanism 
used was to transfer ownership of the building to a company whose articles of 
association provided that the holders of particular groups of shares were entitled 
to occupy specified parts of the building. Ownership of a residential unit was 
secured by relying on shareholding rather than on title to land.

Several thousands of company title home units were created many of which still 
exist. Company title did not however provide an entirely satisfactory form of 
title or security for mortgagees. The Conveyancing (Strata Titles) Act, 1961 
enabled land and buildings to be subdivided into common property and lots, 
with separate legal title to each lot. It also provided by-laws for the management 
and internal regulation of strata schemes. In 1973 this legislation was replaced 
by the Strata Titles Act.

A lot in a strata plan means one or more cubic spaces and if it is intended to 
subdivide land by way of strata subdivision the strata plan must be prepared by 
a surveyor. The plan then requires approval of the local council and is registered 
with the Registrar-General. On registration the proprietors of the lots constitute a 
body corporate known as the "Proprietors-Strata Plan No. ...." each strata plan 
being numbered on lodgment.

The body corporate is the owner of the common property which includes 
those parts of the land and buildings not specified as lots on the strata plan. If no 
special definition is used the normal lot boundaries are the upper surfaces of 
floors, under surfaces of ceilings and inner surfaces of walls. A lot is virtually 
airspace, so that the physical parts of a building are common property. This has 
an important consequence on the responsibility for repair and maintenance of 
common property which generally becomes the obligation of the body 
corporate.

A folio of the register issues in respect of the common property and all dealings 
affecting common property are entered on that folio e.g. rights of way or 
easements. There is no right to mortgage common property. A separate folio for 
the register is issued in respect of each lot in the strata plan in favour of its 
proprietor. The owner of a lot in a strata plan holds title under the Real Property 
Act and any dealings with the lot are registered on the folio for the lot. The 
owner of a lot may sell, mortgage or lease the lot.

The Strata Titles Act sets out the powers, duties and functions of the body 
corporate. The daily management of the body corporate may be delegated to the 
council of the body corporate which is elected at an annual general meeting. The 
body corporate may appoint a managing agent however the agent must hold a 
strata managing agent's licence. There are by-laws setting out the regulations for 
the conduct of lot proprietors and occupants of lots. The body corporate may 
levy maintenance to set up funds for regular expenses (e.g. lights, insurance, 
cleaning) or irregular expenses (e.g. painting common property).

The body corporate must maintain a strata roll, which includes inter alia the 
name of each lot proprietor and mortgagee. It must insure the building under a 
"damage policy", for workers compensation and public risk. An application can 
be made to the Strata Titles Commissioner or the Strata Titles Board for orders 
to settle any disputes, rectify a complaint with respect to the exercise or 
performance of or failure to exercise or perform a power authority duty or 
function under the Act or By-Laws. An order can be made to acquire swimming 
pool equipment or the removal of any animal kept in contravention of by-laws. 
There is also certain rights of appeal against decisions made.

The Strata Titles Act was amended by the Strata Titles (Development Schemes) 
Amendment Act, 1985 provided for the staged development of strata title 
properties. A strata plan may incorporate provision for further subdivision in the 
future and the details of the further subdivision must be incorporated into a 
"development statement". The "development statement" must be submitted to 
and approved by the relevant consent authority and which is registered by the 
Registrar-General.

The Strata Titles (Leasehold) Act, 1986 enables the strata title development of 
Torrens title land the subject of a lease from the Crown or a public authority 
(including local council).

(f)	Community Title.

Community titles are created under the the Community Land Development Act, 
1989 and the Community Land Management Act, 1989 which commenced on 
the 1st August, 1989. Previously there were only two modes of subdividing 
land in New South Wales, subdivisions under the Local Government Act, 1919 
and strata subdivisions under the Strata Titles Act, 1973. This third mode of 
subdivision includes management and disputes mechanisms similar to strata 
title.

Community titles allows land development to occur in stages. There are three 
tiers:-

*	Community Association. A community plan will cover the whole parcel 
of land and upon registration of this plan a community association will 
be established which will be an umbrella association to which all 
subsidiary schemes will belong. The lots created will usually be 
intended for further development and are referred to as development 
lots;

*	Neighbourhood Association. When a developer is ready to subdivide 
the land for sale it is by way of a further plan called a neighbourhood 
plan. This subdivides the land into neighbourhood lots, neighbourhood 
property and will establish a neighbourhood association to administer 
the land within its domain; and

*	Precinct Association is a middle tier of management interposed between 
a community and a neighbourhood association. These associations are 
not expected to be used often and are intended for further subdivision. 
A precinct plan will create precinct development lots, precinct property 
and precinct association. 

Where the community titles are not developed in stages there is no need for a 
community scheme and only a neighbourhood plan is registered to create a 
neighbourhood scheme. That enables the creation of residential, industrial or 
rural neighbourhood lots and neighbourhood association property which may be 
used by the proprietors in common e.g. swimming pool, tennis courts, 
children's playground, hall, BBQ area, recreation areas. It is also possible to 
create a strata subdivision within a community scheme.

(g)	Crown Lands Act, 1989.

The Crown Land Consolidation Act, 1913 was repealed on the 1st May, 1990. 
Prior to this Act there were several Crown Lands Acts. The Crown Lands Act 
deals only with land in the Eastern and Central Divisions of N.S.W., the 
Western Division (about 40% of the total area of N.S.W.), being almost entirely 
controlled under the Western Lands Act, 1901.

By the Crown Lands (Continued Tenures) Act, 1989, which was passed in 
conjunction with the Crown Lands Act, the majority of the 54 types of Crown 
land tenures provided for under the previous complex legislation have been re-
classified into 4 broad groups:-

(i)	Incomplete Purchases;

(ii)	Perpetual Leases;

(iii)	Term Leases; and

(iv)	Yearly Leases.

While this re-classifications has simplified the categories of Crown tenures the 
rights of holders has been on the whole unaffected. In addition to the above four 
lesser forms of tenure, Special Leases, Permissive Occupancies, Quarry 
Licences and Commonwealth Leases have been continued in there present form 
but no new tenures will be created except on the subdivision of existing tenures. 
The tenures formerly created under the Closer Settlements Acts, Returned 
Soldiers Settlement Act and Prickly Pear Act .have been brought under the 
Crown Lands Act.

It will be sometime before a perusal of the certificate of title will show the new 
tenure label. Nevertheless, in Particular F(a)(vi) of the current agreement for 
sale of land the tenure of the holding to be sold should be recited by reference to 
it new tenure name under the Crown Lands (Continued Tenures) Act followed 
by the words "held under the terms of the Crown Lands (Continued Tenures) 
Act, 1989 and should not be referred to by reference to the repealed legislation.

The Crown Lands Act changed a number of aspects of conveyancing Crown 
land  In relation to Incomplete Purchases the whole of the balance of purchase 
monies due and payable to the Crown is required to be paid in full to the Crown 
by any registered holder who takes a transfer of the tenure. Payment is required 
to be made within three months from the date of registration of the transfer. A 
"transfer" however does not include a devise under a will, acquisition under 
intestacy, survivorship of a joint tenant or discharge of a mortgage.

In relation to Perpetual Leases Crown Lands Act stipulates that the old rents not 
subject to periodic redetermination (in future to be known as the "rent base") are 
to be adjusted annually in line with the Consumer Price Index movements; that 
no base rent is to be less than $ 100.00; and Perpetual Leases with rents subject 
to periodic redetermination will be redeterminable at a standardised five yearly 
interval.

The rights to convert existing Perpetual Leasehold to freehold has been 
preserved. The Act provides however that the old "notified capital value" or 
price (in future to be known as the "purchase price base") at which the land may 
be purchased is also to be adjusted in line with the movement of the CPI from 
the date of the commencement of the legislation to the date of the application to 
convert or purchase the land. Where there is no purchase price base in the 
records of the lease the land may be purchased at the current market value.

The Act in so far as it relates to the rent and purchase of Term Leases is much 
the same as for Perpetual Leases. There were only a small number of Yearly 
Leases in existence and the Lands Department propose to gradually eliminate 
these and replace them with leases, licences or permits under the Crown Lands 
Act.

The Act has given a new name to what have been known for many years as 
Road Permits. These permits authorise the holder of land to enclose within it 
Crown land which was originally designated to provide a way of access to 
adjoining and adjacent lands. Many permits relate to roads that have never been 
formed or used for access. These permits may also authorise the enclosure of a 
watercourse where it is Crown land. The new name given to these permits is 
Enclosure Permits. Changes to the provisions relating to these permits 
include the responsibility of the transferee to notify the Department of Lands of 
any transfer of the permit; the holder of the permit is responsible for all 
outstanding rents due and payable under the permit; and cultivation of the land 
for specific periods may be authorised if the land is not required for public 
access during that period.

The prior Crown Land Consolidation Act17   stipulated that a 
person must not 
hold other land within New South Wales which together with a Crown holding, 
would in the opinion of the Minister, substantially exceed a "home maintenance 
area". A home maintenance area is an area of land which when used for the 
purpose for which it is "reasonably fitted" would be sufficient for the 
maintenance in average seasons and circumstances of an average family. The 
home maintenance provisions have been carried over into the new  Crown 
Lands (Continued Tenures) Act. For various reasons, including the inability of 
the home maintenance concept to take into account technological advances or 
trends in the rural industries it is likely that this concept will be reviewed or 
phased out.18  

A feature of many of the tenures held as Crown land is that a transfer cannot be 
made without obtaining the Minister of Lands consent. Application for consent 
involves a written application and enables the the Crown to control the 
aggregation of rural land by large landowners. There is provision in some cases 
for the owner to have the transfer restriction removed on payment of a fee to the 
Crown.

The general format for the removal of the restriction on transfer continues 
in the Act. Thus the requirement of obtaining the Ministers consent to the 
transfer may be removed from freehold land or purchase tenures provided that 
all conditions have been complied with and the whole of the purchase money 
has been paid to the Crown. The fee payable for the removal has been reduced 
from 5 per cent to 3 per cent of the "land value". The land is evidenced in a 
current notice of valuation issued by the Valuer General. The cost of the 
assessment of the land value by the Valuer General must be borne by the 
applicant but is deductible from the 3 per cent of the land value actually paid. 
The Act also dispenses with the requirement of Minister's consent to leasing of 
"restricted freehold" holdings.

The Land Aggregation Tax Management Act was enacted in 1971 for the 
purpose of discouraging the obtaining unrestricted freehold land to build up 
excessive aggregations. The Act imposes extremely onerous 
rates19   of tax on 
aggregations of derestricted land. It is not assessable against the owner 
derestricting but only against subsequent owners. Following the derestriction of 
a Crown land title the Registrar-General places a notation on the certificate of 
title that the Act may be applied to the land. Although the Act itself is operative 
section 8 which relates to the imposition of the tax has not been proclaimed. As 
there has been no evidence of the excessive aggregation of derestricted land 
there appears to be no current proposal on the part of the Crown to proclaim the 
commencement of the taxing provisions. It has been commented:-

	"Given the savage nature of the tax, its doubtful receptive potential, the 
fact that it is now 20   years since the Act was passed and also the 
advent 
of the new Crown Land laws, it would appear quite likely that, in due 
course, the repeal of this Act will also certainly be looked at. If such 
repeal does take place practitioners can then look forward to 
discontinued notation of the s. 8 on the Certificates of Title issued in 
respect of derestricted freehold title land."20

The main tenure under the former Crown Land Consolidation Act was the 
conditional purchase which involved a sale of land by the Crown on certain 
conditions being complied with by the purchaser, the purchase price being 
payable by instalments over a  lengthy period of years. On compliance with 
these conditions formerly a Crown grant issued under the Torrens system. Since 
1980 the Registrar-General has commenced to issue folios for unalienated land. 
A purchaser from the Crown now has an estate in fee simple notwithstanding 
that the entire purchase price has not been paid. The folio will show the 
purchaser as the registered proprietor and record the outstanding obligations to 
the Crown.

The reforms currently being implemented to bring all Crown land tenures under 
the Torrens system have almost been achieved. While title to land remains under 
Crown land title dealings are registered at the Crown Titles Branch of the 
Registrar-General's Office. Title under this system is not guaranteed nor does it 
confer an indefeasible title.

Land under the Western Lands Act is held mainly under lease tenure often for a 
perpetual term.

(h)	Other.

In N.S.W. the mining of most minerals is controlled under the Mining Act, 
1973. The legislation enables the acquisition of various mining rights or leases 
over Crown land and rights to prospect or mine over private land. In most of the 
Crown grants the minerals have been excluded and therefore they are the 
property of the Crown.

The owner of land may prospect or mine for minerals owned by him relying on 
his rights under the general law however he may secure statutory rights to mine 
by obtaining a mining lease or exploration licence over his own land. If he does 
not do this anyone may apply to the Crown for a mining lease or exploration 
licence. Some protection is afforded to private owners. There are restrictions on 
the grant of mining leases e.g. over land bona fide in use as a garden or orchard 
or agricultural land or within 200 metres of a dwelling house. Royalties and rent 
are payable by the person acquiring mining rights, seven eights of the royalty 
and the whole of the rent is payable to the owner of the land. Compensation is 
also payable to the owner and occupier of private lands for loss suffered for 
disturbance.

A mining lease may be granted for a maximum area of 1600 m x 1600 m for a 
period not exceeding 21 years with an entitlement to renew the lease. A mining 
purpose lease, exploration licence or prospecting licence may also be acquired. 
Coal mining is dealt with in the Coal Mining Act, 1973.

Whilst it is most unlikely that a small urban block of land with a residence 
erected on it is subject to any mining tenement, rural land may will be subject to 
a mining tenement. These are not recorded on the title and there existence must 
be established by a search at the Department of Mineral Resources.

There are several special statutes permitting certain statutory or local government 
corporations to sell or grant interests in land e.g. under the Forestry Act and 
Oyster Farms Act.

3.	Native Title - The Mabo Decision.

(a)	Introduction.

The decision in Mabo v. State of Queensland21  .has generated some 
interesting comments.

"Many decisions of the High Court have resulted in controversy, but few, if 
any, have given rise to such a diversity of responses, ranging from euphoria to 
deep anxiety, as Mabo v. Queensland.22  :"

"The High Court was required to determine to what extent, if any, recognition 
should be accorded original presence and occupation. Any determination by the 
High Court at such a late date in Australia's development, was bound to be 
controversial and so it has proven to be.23  "

"Mabo is a landmark case on native title at common law in Australia. It brings 
Australian law into line with the rest of the common law world. It adopts a 
pragmatic comprise of the rights of the Aboriginal people and the settler society 
in Australia."24  

(b)	Early Cases.

From their inception the colonies in Australia granted lands to settlers. No 
agreements with or compensation was paid to Aboriginal people, but lands were 
especially set apart for their benefit.

In 1847 a coal miner in N.S.W. challenged the assertion of ownership by the 
Crown. The Full Court dismissed the miner's objections and declared in 
Attorney-General v. Brown that the lands in the Colony "are, and ever have 
been, from the time of its first settlement in 1788, in the 
Crown."25  

The dicta from Brown, suggesting that upon settlement, ownership of the lands 
of the colonies vested in the Crown, was followed in two subsequent N.S.W. 
cases dealing with the status and nature of Crown reserves26  . 
Neither case 
concerned the rights of Aboriginal peoples. Almost immediately it was handed 
down Brown was construed, by the Supreme Court in New Zealand, as being 
consistent with native title at common law27  .

Not until 1970 was any action brought in Australia to consider Aboriginal claims 
to land at common law. In Milirrpum v. Nabalco Pty. Ltd28   
(sometimes called 
the "Gove case") the Aboriginal inhabitants of the Gove Peninsular in Arnhem 
Land sought to restrain bauxite mining on their traditional lands without their 
consent. Blackburn J. concluded that the "doctrine of communal native title ... 
does not form, and never has formed, part of the law of any part of 
Australia."29   He reached that conclusion only after declaring that 
the question 
"is one which can be answered only by an examination of what has happened to 
the laws of the various places where English law has been 
applied."30  

Blackburn J. examined the law of those jurisdictions, particularly the United 
States, Canada and New Zealand. He considered that native title at common law 
did not form any part of the law of those jurisdictions. This was despite the 
repeated affirmation of the doctrine in the United States. As a result he could, by 
his own admission, make no sense of the law31  . His analysis of 
the law of 
Canada was described shortly thereafter as "wholly wrong."32   
Blackburn J. 
concluded that New Zealand law embodied no doctrine of native title at common 
law only after dismissing R v. Symonds as obiter and founded on an erroneous 
interpretation of the United States law. He ignored Privy Council approval of 
Chapman J's analysis in R v. Symonds.

Not surprisingly the decision in Milirrpum was strongly criticised at the time by 
several published commentaries as being wrong in law. The High Court itself 
expressed reservations about the decision. In 1979 the High Court 
suggested33   
that the matter was an "arguable question if properly raised" and in 1987 termed 
it "a question of fundamental importance."34  

(c)	Facts.

Eddie Mabo was a member of the Meriam people, the traditional owners of 
Murray Islands and surrounding islands and reefs in the Torres Strait. These 
three small islands, having an area of about 9 square kilometres, are the most 
easterly and among the most northern of the islands of the Torres Strait. The 
islands were annexed as part of the colony of Queensland in 1879. In 1982, 
Mabo and two other islanders commenced an action in the High Court on their 
own behalf and on behalf of their respective family groups.seeking a declaration 
of their traditional land rights. They claimed that since time immemorial the 
Meriam people had continuously occupied and enjoyed the Islands and had 
established settled communities with a social and political organisation of their 
own. In 1912 the Islands, except for two acres leased to a mission, were 
"permanently reserved and set apart for use by the Aboriginal inhabitants of the 
State" pursuant to the Land Act, 1910 (Qld). The statement of claim 
acknowledged that the Islands came under the sovereignty of the Crown, as part 
of the Colony of Queensland, in 1879, but subject to the rights of the plaintiffs 
to the lands according to:-

"(a)	their local custom (hereinafter called "ownership by custom");
(b)	their original native ownership (hereinafter called "traditional native 
title");
(c)	the actual possession, use and enjoyment of the said Islands (hereinafter 
called "usufructuary rights")."

The statement of claim sought a declaration to that effect, and also that any 
impairment of those rights, by the State would constitute a breach of fiduciary 
obligation, and would entail the payment of compensation.

The defence denied any foundation in law for the rights asserted by the 
plaintiffs, and, argued that, in any event, such rights were abrogated at the latest 
by the enactment of the Land Act, 1910.

(d)	The Decisions.

(i)	Mabo v. State of Queensland (No. 1), 1988

On the 27th February, 1986 the matter was remitted to the Supreme Court of 
Queensland for hearing but the hearing was adjourned in November, 1986, so 
that the High Court might consider the aspect of the defence that relied upon the 
Queensland Coast Islands Declaratory Act, 1985. Section 3 of that Act declared 
that upon the annexation "for the purpose of removing any doubt that may exist 
as to the application to the Islands of certain legislation ... the Islands were 
vested in the Crown in the right of Queensland freed from all other rights, 
interests and claims of any kind whatsoever and became waste lands of the 
Crown in Queensland ...". Section 5 declared that no compensation was payable 
in respect of any rights that existed prior to annexation. The Minister declared in 
his second reading speech that the object of the Act was the extinguishment of 
any native title that might otherwise exist upon annexation.

In Mabo v. State of Queensland (No. 1)35  , six of the seven 
judges of the High 
Court agreed that the Queensland statute, if valid, was sufficiently "clear and 
plain" to extinguish native title. But the majority, 4-3, ruled that the statute must 
"fail" because it contravened the Racial Discrimination Act, 1975 (Cwth) 
because it "abrogated the immunity of the Miriam people from arbitrary 
deprivation of their legal rights in and over the Murray Islands." Unilateral State 
action could not extinguish native title except upon the conditions imposed by 
the Racial Discrimination Act. The Court did not however decide the question of 
whether the Meriam people had rights over the lands.

(ii)	Determination of Issues of Fact.

The substantive hearing came back before the Supreme Court of Queensland on 
the 2nd May, 1989. On the 16th November, 1990, Moynihan, J. delivered the 
Court's determination of the issues of fact raised by the pleadings. It included 
the following:-

1.	The Murray Islands were probably first inhabited by people of 
Melanesian origin from Papua New Guinea. It was "impossible" to say 
with precision when the Murray Islanders arrived but "it seems likely 
that at the time of early European contact the Islands had been settled for 
some generations".

2.	Prior to European contact the Islanders were part of an evolving social 
organisation in which the position of the individual was determined by 
"complex and intricate collections of interrelated groupings", that is, the 
village, the district, the cult, and the animal ceremonial group.

3.	Village land and garden land was divided into plots owned by 
individuals or family groups.

4.	The relationship of the Meriam people to land and sea was "not a 
religious or spiritual relationship of the kind which emerged ... in 
Milirrpum v. Nabalco ..." but was nevertheless "strong" and 
"enduring".

5.	Gardening was of profound importance to the Murray Islanders at and 
prior to European contact. The development of a cash and welfare 
economy, education and migration for work had significantly 
diminished the importance of gardening.

The manner of land-holding amongst the Murray Islanders was, obviously, 
different from that amongst many of the Aboriginal people of the mainland of 
Australia.

The High Court went to the Islands for three weeks and looked at the type of 
land use and fishing. They found a tropical paradise. The traditional land use 
was very much like freehold use e.g. boundaries set out not by fences but by 
reference to trees, rocks or other land marks. This was a land use very different 
to that on the Gove Peninsula.

(iii)	The Mabo Decision No. 2 ("Mabo").

The case was argued for four days before the High Court commencing on the 
28th May, 1991. The Court reserved its decision. The High Court decision was 
handed down on the 3rd June, 199236  . Five judgments were 
delivered by 
Brennan J., Deane J. and Gaudron J., Toohey J., Dawson J, and Mason C.J. 
and McHugh J. The judgment of Mason C.J. and McHugh J. is a brief 
explanation of their concurrence with Brennan J. and the effect of the decision.

All of the judges, except Dawson J., agreed that:-

*	There was a concept of native title at common law.

*	The source of native title was the traditional connection to or occupation 
of the land.

*	The nature and content of native title was determined by the character of 
the traditional connection or occupation.

*	Native title could be extinguished by the valid exercise of governmental 
powers provided a clear and plain intention to do so was manifest.

A majority of the judges, Brennan J. (Mason C.J. and McHugh J. concurring) 
and Dawson J., concluded that no compensation was payable at common law 
upon extinguishment. However, all of the judges, except Dawson J., 
considered that extinguishment was subject to the obligation imposed by the 
Racial Discrimination Act. That obligation is likely to include the payment of 
compensation.

The Order of the Court was a declaration that the Meriam people were "entitled 
as against the whole world to possession, occupation, use and enjoyment of the 
lands of the Murray Islands", subject to the powers of the State of Queensland 
to extinguish that title, provided that any exercise of those powers was not 
inconsistent with the laws of the Commonwealth. The declaration put to one 
side and did not deal with lands which had been leased or which had been 
reserved for administrative purposes.

(iv)	Terra Nullius.

The manner of colonisation determined the type of law applicable in the newly 
acquired territory and determined whether English law was applicable in the 
colony. If a colony was acquired by conquest then the existing laws of that 
country continued in force until they were altered by the conqueror. A similar 
rule applied to ceded colonies. However, a different rule applied to the 
settlement of a territory that was terra nullius, which is a land belonging to no 
one, or in the language of Blackstone37   "desert and 
uncultivated". When an 
uninhabited country was discovered and settled by English subjects, all the 
English laws would be immediately enforced in the new colony. The hypothesis 
was that there was no local law in existence in the new territory.

Territory inhabited by a people who did not have a recognised social or political 
organisation was considered terra nullius in international law38  . 
Sovereignty 
over terra nullius was established by effective occupation by a sovereign state. It 
is the principle of international law under which the British assumed sovereignty 
over Australia. Terra nullius is not a concept of common law, and it had never 
been referred to in any case prior to Mabo as justifying a denial of native title.

There is an similar doctrine at common law to that of terra nullius. It is that of 
territory acquired by "settlement". Australia is regarded as such a territory, "as 
the indigenous inhabitants were regarded as barbarous or unsettled and without 
settled law"39  . It was not a conquered or ceded territory. Upon 
settlement the 
common law applied to the acquired territory. All members of the High Court 
concluded that Australia, irrespective of the original presence of the Aboriginal 
people, was a territory acquired by settlement40  .

The Mabo decision has been hailed as a rejection of the concept of "terra 
nullius", and certainly Brennan J.41  , Deane and Gaudron 
JJ.42   and Toohey J.43   
suggest such a conclusion. But the concept is essentially irrelevant to native title 
at common law. The concept is not rejected in any sense of denying Australian 
sovereignty. The real question before the Court, and the question the Court 
decided, was whether or not native title was part of the common law of a settled 
territory such as Australia. Every other relevant jurisdiction, in particular, the 
United States, Canada and New Zealand, had held that it was, and the High 
Court determined that Australia was no different.

Whether or not a region was "terra nullius" or "settled" was never considered to 
be a bar to native title in Australia or elsewhere, and accordingly the debate and 
determination as to the question by the Court was essentially 
"irrelevant"44  .

(v)	Sovereignty.

Terra nullius and the "settled" status of Australia would have been very relevant 
if the international sovereignty of Australia was challenged or denied by the 
Court. It was not. the Court asserted that sovereignty was acquired by 
"settlement", and indeed that such sovereignty could not be challenged in an 
Australian municipal court45  .

The Court did not directly address the question of whether Aboriginal people 
were sovereign prior to and at the time of settlement. The affirmation of the 
finding that Australia was settled would suggest the negation of such an original 
sovereignty. But the Court did cite with approval Blackburn J's finding of the 
original legal system, and implicitly, the original sovereignty, of Aboriginal 
people in Milirrpum v. Nablaco46   and perhaps the true 
significance of the 
rejection of the concept of terra nullius is the recognition of the falseness of the 
premise that Aboriginal people were "without laws, without a sovereign and 
primitive in the social organisation"47  . Recognition of the 
original sovereignty 
of the Aboriginal peoples at settlement may allow evolution of a concept of a 
lesser inherent sovereignty in Aboriginal communities and groups.

(vi)	Nature of Native Title.

Within the majority of six, Justice Toohey explored more widely the 
submissions put for the plaintiffs. His remarks bout the Crown's fiduciary duty 
to traditional owners will command great support from Aboriginal groups. But 
there is little support for his view in the other judgments. On most issues, 
especially compensation, Justice Brennan's judgment is more restrictive than the 
joint Deane/Gaudron and Toohey judgments. His judgment on such questions 
carries support from Chief Justice Mason, Justice McHugh and Justice Dawson 
who was in dissent on the primary question of the recognition of native title. On 
most ambiguous questions, the Brennan judgment can be relied upon as the 
minimal exposition of Aboriginal rights enjoying majority support from the 
present High Court. For this reason, Justice Brennan's own nine point 
summary is a useful exposition of the limits of native land title48  
:-

1.	The Crown's acquisition of sovereignty over the several parts of 
Australia cannot be challenged in an Australian municipal Court.

2.	On acquisition of sovereignty over a particular part of Australia, the 
Crown acquired a radical title to the land in that part.

3.	Native title to land survived the Crown's acquisition of sovereignty and 
radical title. The rights and privileges conferred by native title were 
unaffected by the Crown's acquisition of radical title49   but the 
acquisition of sovereignty exposed native title to extinguishment by a 
valid exercise of sovereign power inconsistent with the continued right 
to enjoy native title.

4.	Where the Crown has validly alienated land by granting an interest that 
is wholly or partially inconsistent with a continuing right to enjoy native 
title, native title is extinguished to the extent of the inconsistency. Thus 
native title has been extinguished by grants of estates of freehold or of 
leases but not necessarily by the grant of lesser interest (e.g., authorities 
to prospect for minerals).

5.	Where the Crown has validly and effectively appropriated land to itself 
and the appropriation is wholly or partially inconsistent with a 
continuing right to enjoy native title, native title is extinguished to the 
extent of the inconsistency. Thus the native title has been extinguished 
to parcels of the waste lands of the Crown that have been validly 
appropriated for use and used for roads, railways, post offices and 
other permanent public works which preclude the continuing concurrent 
enjoyment of native title. Native title continues where the waste lands of 
the Crown have not been so appropriated or used or where the 
appropriation and use in consistent with the continuing concurrent 
enjoyment of native title over the land (e.g. land set aside as a national 
park).

6.	Native title to particular land (whether classified by the common law as 
proprietary, usufructuary50   or otherwise), its incidents and the 
persons 
entitled thereto are ascertained according to the laws and customs of the 
indigenous people who, by those laws and customs, have a connection 
with the land. It is immaterial that the laws and customs have undergone 
some change since the Crown acquired sovereignty provided the 
general nature of the connection between the indigenous people and the 
land remains. Membership of the indigenous people depends on 
biological descent from the indigenous people and on mutual 
recognition of a particular person's membership by that person and by 
the elders or other persons enjoying traditional authority among those 
people.

7.	Native title to an area of land which a clan or group is entitled to enjoy 
under the laws and customs of an indigenous people is extinguished if 
the clan or group, by ceasing to acknowledge those laws, and (so far as 
practicable) observe those customs, loses its connection with the land or 
on the death of the last of the members of the group or clan.

8.	Native title over any parcel of land can be surrendered to the Crown 
voluntarily by all those clans or groups who, by the traditional laws and 
customs of the indigenous people, have a relevant connection with the 
land but the rights and privileges conferred by native title are otherwise 
inalienable to persons who are not members of the indigenous people to 
whom alienation is permitted by the traditional laws and customs.

9.	If native title to any parcel of waste lands of the Crown is extinguished, 
the Crown becomes the absolute beneficial owner.

"Accepting that the doctrine of tenure (although modified) applied in Australia, 
the High Court found that the Crown must be invested with such a title to land 
as would invest the sovereign with the character of paramount lord. Therefore, 
the Court found that in theory, which was called a radical, ultimate or final title. 
This is a bare title to land. The radical title, does not confer on the Crown an 
absolute beneficial ownership of the land. The radical title underlies the Crown's 
fundamental right to administer the country. Under the radical title the Crown 
has power to grant interests in the land. This is because the sovereign has a 
supreme legal authority in and over a territory and has the power to prescribe 
what land should be enjoyed by others."51  

"...usufructuary rights (which is a mere right of user of the land) ... The term 
usufruct originates in Roman law. It has been explained by Cumming and 
Mickenberg:-

	'The usufruct developed as a form of trust, often created by will. It has 
been defined as:-

	a right of enjoying a thing, the property of which is vested in another, 
and to draw from the same all the profit, utility in advantage which it 
may produce, provided it be without altering the substance of the thing 
...'

A usufructuary right or "title" would indicate that there is no proprietary right in 
or ownership of the land itself. It seems to indicate that there is simply a right to 
use. ...

The existence of native title is a question of fact not law. It requires extensive 
analysis of the traditional rights of the claimant group. A group will need to 
show a continued use or connection with the land. It will be possible for 
different groups on the facts to have different ranges of rights attaching to their 
native title.

It is possible to recognise a proprietary title that is derived from a community's 
laws and customs and that is held by the community. The fact that individual 
members of the community enjoy non-proprietary usufructuary rights does not 
prevent the recognition of a proprietary community title. Such community 
proprietary interests are a burden on the radical title which the Crown 
acquires."52  

Aboriginal native title is communal and the rights under it are communal rights 
enjoyed by the whole tribe. It may be possible to recognise individual rights that 
are derived from the community laws and customs and that are dependent on the 
community title. Such individual interest could be held only to exist only if is is 
consistent with traditional laws and customs.

One view of the High Court's decision is that it found that the rights conferred 
by native title did not constitute an interest in land. Rather the rights of native 
title are personal or usufructuary rights of user of the land only. It is because 
native title is only a personal right which is not supported by a Crown grant of 
an interest in land that such rights can be extinguished by the 
Crown53  . 
However, these rights are legal rights.

Although native title is recogniseed by the common law it is not part of the 
common law54  . 

"The notion that a property right must fit into one or other of the categories 
existing at common law is so familiar that it may be difficult to conceive of a 
right to land that is not so categorised. However, the High Court cautioned 
against assuming that native title rights must be analogous to common law 
property rights. This is probably the reason why the High Court attached little 
importance to the question of whether native title is "personal" or "proprietary."

The question of whether native title is proprietary is comparatively unimportant 
because the usual reason for classifying interests as personal or proprietary does 
not apply. Within the common law system we need to classify interests as 
proprietary or personal in order to decide upon the ambit of enforceability. 
Personal rights, for instance rights arising under contract, may only be enforced 
against a person who is party to the creation of the right. If A enters into a 
contract with B then the contract cannot be enforced against C or by C. 
However, where the right is proprietary it is enforceable against such third 
parties. If A conveys the fee simple estate in Blackacre to B, B acquires a 
proprietary interest. That proprietary interest may be asserted against C and 
entitle B to exclude C from the land.

In the case of native title the question of its enforceability does not depend on 
whether it is proprietary or not. The High Court specified the basis on which it 
could be enforced and indicated that it could be protected by legal and equitable 
remedies."55  

(vii)	Proof.

The six members of the Court who found for the existence of native title at 
common law were in agreement as to the elements of proof. All members of the 
Court placed a great deal of reliance on the North American jurisprudence. The 
elements required are:-

*	A traditional connection with or occupation of the land 
under the laws and customs of the Aboriginal group.

The North American cases have emphasised the traditional occupancy of the 
land as the proof of native title. Spiritual relationships were merely one factor in 
the evidence to be considered in determining if the land could be said to be the 
traditional land of the claimant group. The High Court seemed prepared to give 
greater prominence to the spiritual relationship. Thus Brennan J. referred to the 
"connection with the land" rather than occupation. Toohey J. referred to the 
possibility that "one group is entitled to come on to the land for ceremonial 
purposes. All other rights in the land belonging to another 
group."56  

The proof of connection must establish a special or exclusive relationship to the 
land57  . The North American cases have excluded from claims 
"lands wandered 
over by many tribes", as lacking a sufficient special relationship.

The connection with and occupancy of the land by the Aboriginal people, in 
accordance with traditional laws, customs and usages, is the source of native 
title. The common law is not concerned with trying to identify ownership, rights 
and duties between individuals relating to land under traditional law. The 
common law is primarily concerned with whether or not a plaintiff Aboriginal 
group can establish that its connection to or occupancy of the land was governed 
by and in accordance with a system or set of traditional laws, customs and 
usages. 

*	The existence of an identifiable community or group.

The High Court emphasised the vesting of native title in a 
"community"58   and 
referred to a community consisting in a clan, group or society. Deane and 
Gaudron JJ. refer to an 

"identified community, group or (rarely) individual"59  .

*	The substantial maintenance of the connection with or 
occupation of the land.

Native title at common law overlies the radical title of the Crown. The radical 
title of the Crown takes effect upon the assumption of sovereignty by the 
Crown. The relationship between the underlying radical title of the Crown and 
native title requires that if native title is to be established the initial connection 
with or occupation of the land by an Aboriginal group must be shown as at the 
time Crown sovereignty was established.

"It must, of course, be recognised that the particular plaintiff Aboriginal group is 
not required to establish that it was the group in occupation or connected with 
the land at the time radical title vested in the Crown. It merely has to be shown 
that the land was in the occupation of or connected with an Aboriginal group at 
that time. The concept of native title at common law includes a changing of the 
group to another under traditional laws and customs, although, of course, it is 
inalienable in so far as non-Aboriginal people are concerned (Brennan, 42; 
Deane and Gaudron, 66)."60  

An Aboriginal group seeking to establish native title at common law must 
"substantially maintain" its traditional connection with the land. If Aboriginal 
people fail to maintain such a connection they will not succeed in establishing 
native title. As Brennan J. explained61  :-

"... when the tide of history has washed away any real acknowledgement of 
traditional law and any real observance of traditional customs, the foundation of 
native title has disappeared. A native title which has cease with the abandoning 
of laws and customs based on tradition cannot be revived for contemporary 
recognition."62  

The traditional connection to the land may have been lost by forcible removal or 
expulsion from the land under the removal and confinement provisions of State 
legislation respecting Aboriginal people. In those circumstances, however unjust 
it may seem, an Aboriginal group will not be able to establish native 
title.63  

A question not resolved by the High Court was which party was to bear the 
onus of proof with respect to the maintenance of the traditional connection with 
the land. One commentator suggests that there is authority for the proposition 
that native title "must be presumed to have continued to exist unless the contrary 
is established by the context and circumstances."64  

"The requirements of proof suggest enormous difficulties in the establishment of 
claims in the settled or urban areas of Australia. Claims in unsettled areas stand a 
much greater chance of success."65  

(viii)	Extinguishment.

At common law confiscation of property is presumed to require the payment of 
compensation. Native title is not protected by such a presumption. Native title is 
subject to extinguishment at common law without the consent of the Aboriginal 
people or the payment of compensation. The requirement of consultation and 
compensation attached to native title in Australia today, arises, not rom the 
common law, but from the Racial Discrimination Act, 1975 (Cwth).

Brennan J. assumes that native title may be extinguished without consent and 
without compensation but did not directly consider the question. However, 
Mason C.J. and McHugh J. in their short judgment declare:-

"... Neither of us nor Brennan J. agrees ... that ...extinguishment of native title 
by the Crown by inconsistent grant is wrongful and gives rise to a claim for 
compensatory damages."66  

Dawson J. did not think that the extinguishment of native title in Australia 
demanded the payment of compensation, and accordingly a majority of the four 
judges were in support of that proposition.

The principles of extinguishment declared by the High Court were drawn from 
the North American cases. The United States Supreme Court has denied 
compensation upon the extinguishment of native title but only were there was a 
"clear and plain indication" of the intention to extinguish67  . The 
United States 
cases were cited by Brennan J. and gave rise, in his view, to the requirement 
that "the exercise of a power to extinguish native title must reveal a clear and 
plain intention to do so."68  

The concept of native title recognises nothing inconsistent in native title being 
held by an Aboriginal group with the underlying radical title being vested in the 
Crown. For legislation to extinguish native title the legislation must go further 
than merely recognising the underlying title of the Crown. The High Court in 
Mabo held that legislation providing for the disposition of the public lands in the 
State of Queensland did not evince a clear and plain intention to extinguish 
native title. The Aboriginal people of Australia were not dispossessed by such 
legislation:

"They were dispossessed by the Crown's exercise of its sovereign powers to 
grant land to whom it chose and to appropriate to itself the beneficial ownership 
of parcels of land for the Crown's purposes."69  

"A clear and plain intention to extinguish native title is not revealed by a law 
which merely regulates the enjoyment of native title or which creates a regime of 
control that is consistent with the continued enjoyment of native 
title."70  

The traditional forms of "native welfare" legislation established a regime of 
segregation, control and protection upon reserves set apart for Aboriginal 
people. The imposition of such a regime does not extinguish native title with 
respect to that land.

A "clear and plain intention" to extinguish native title by executive act must entail 
an intention inconsistent with native title71  . All members of the 
High Court 
agreed that a disposition or appropriation that was fully or partially inconsistent 
with native title would, to the extent of the inconsistency extinguish native title.

Freehold grants to settlers, that is grants in fee simple, and leases conferring 
exclusive possession extinguish native title72  . Pastoral lease are 
problematic 
because they commonly include a clause protecting traditional Aboriginal rights 
of sustenance and arguably are not inconsistent with native title. In Mabo a lease 
was subject to conditions that the lessees would not interfere with native use of 
gardens or plantations on the land nor with native fishing on adjacent reefs. 
Brennan J. considered that the conditions of the lease did not preserve native 
title from extinguishment, because the mere granting of the lease, irrespective of 
its terms was inconsistent with native title73  .

"The issue is unsettled because although the majority seem to clearly favour the 
conclusion that pastoral leases extinguish native title the reasoning is 
unconvincing. The clauses in pastoral leases spring from Imperial and historic 
concern to protect the Aboriginal people in the traditional use of their land, and a 
regard for their history and circumstances is likely to deny the requisite "clear 
and plain" intention."74  

Whether or not the grant of mineral and petroleum tenements extinguish native 
title depends on "the effect which the grant has on the right to enjoy native 
title."75   General conclusions, always subject to an examination 
of the particular 
circumstances, suggest that production tenements in the form of mining leases 
or oil and gas production licences are likely to be considered to have 
extinguished native title; exploration tenements are not.76  

Where the Crown has validly appropriated land to itself and the appropriation is 
wholly or partially inconsistent with a continuing right to enjoy native title, 
native title is extinguished to the extent of the inconsistency. An appropriation 
for a particular purpose does not, of itself, however extinguish native title. The 
administration and use of lands must be inconsistent with native title, if it is to 
be considered to have extinguished native title.77   The High 
Court held that the 
creation of the reserve for the Aboriginal inhabitants in Mabo did not extinguish 
native title and Brennan J. suggested that a national park might not entail an 
inconsistent use.

Both State and Commonwealth are empowered to extinguish native title, 
provided that such power is exercised in accordance with any limitations 
otherwise arising under their respective constitutions. All members of the Court 
in Mabo considered that the State of Queensland had jurisdiction to extinguish 
native title.

The main restriction today imposed on the exercise by State legislature of the 
power to extinguish native title "flows from the paramountcy of valid legislation 
of the Commonwealth Parliament." "The provisions of the Racial Discrimination 
Act, 1975 (Cth) represent an important restraint upon State or Territory 
legislative power to extinguish or diminish common law native 
title."78  Section 
10 declares that a law shall not have the effect so as to deny enjoyment of a right 
to persons of a particular race to a greater extent than persons of other races. The 
operative provisions of the Racial Discrimination Act came into effect on 31st 
October, 1975. The Act protects the right of immunity from arbitrary deprivation 
of property. It was the Mabo decision of December, 198879   that 
held that native 
title was protected by the Racial Discrimination Act. In order to satisfy section 
10 it would be necessary for legislation to provide an assurance of rights of 
protection, non-interference and compensation that correspond to the nature of 
native title.

"It is not considered that s. 10 invalidates State mining or petroleum legislation 
or other legislation providing for the grant of Crown resources. .. But grants 
made under the legislation do purport to authorise conduct inconsistent with 
native title. It is suggested that all that is necessary to "eliminate the inequality" 
is to "nullify" the operation of the legislation to the extent that it purports to 
authorise an infringement upon native title. Aboriginal people will thereby be 
assured of immunity from arbitrary deprivation of property. It is not necessary 
to invalidate the grant to assure such right."80  

(ix)	Fiduciary Duty.

A trust or fiduciary obligations of governments to Aboriginal peoples has two 
aspects:-

1.	A general and constitutional obligation with respect to Aboriginal 
people, their welfare and their property.

2.	A specific obligation arising from governmental powers over property 
in accordance with the doctrine of fiduciary duty accepted in all areas of 
the law.

The majority of the Court in Mabo did not clearly decide upon either aspect of a 
fiduciary obligation. Brennan J. observed:-

"If native title were surrendered to the Crown in expectation of a grant of tenure 
to the indigenous title holders, there may be a fiduciary duty on the Crown to 
exercise its discretionary power to grant tenure in land so as to satisfy the 
expectation, but it is unnecessary to consider the existence or extent of such a 
fiduciary duty."81  

Brennan J. referred to Canadian authority82   which had found a 
fiduciary 
obligation. Toohey J. too a more expansive view of the Canadian authority. 
Deane & Gaudron JJ. seemed to take a similar view. Toohey J. seemed to 
suggest the existence of a constitutional obligation and a limitation on the 
supremacy of parliament by reference to the fiduciary obligation of the Crown. 
Such a general limitation arises in Canada from the provisions of s. 35 of the 
Constitution Act of Canada. There is no such provision in Australia.

"The High Court would seem likely to adopt the jurisprudence with respect to 
the "narrow" or "specific" fiduciary obligation of the Crown with respect to 
Aboriginal land. Acceptance of a general obligation, or an obligation that limits 
the supremacy of parliament, seems unlikely in the absence of constitutional 
amendment."83  

(x)	Possessory Title.

"Toohey J. was the only member of the Court who discussed Aboriginal 
possessory title... The position of Australian common law concerning native 
title, referred to by Toohey J. as traditional title, on the one hand, and 
possessory title on the other, and whether these are, as Toohey J. assumes, 
separate bases for Aboriginal title, is not made clear in the judgments of the 
majority. On Toohey J.'s analysis, some groups who could establish a native 
title may establish a possessory title at law, and be entitled to a recognition of an 
estate in fee simple. Furthermore, some groups may possibly be entitled to 
recognition of a possessory title whilst being unable to establish a native title for 
any of the reasons given by the Court. There may be situations where 
possessory title may have been lost and only native title rights, such as certain 
usufructuary rights, remain, for example, where a right of residence is denied 
but rights of hunting and gathering are preserved."

Generally, a declaration of entitlement to a fee simple arising from a possessory 
title would be more beneficial to plaintiffs. However, it is difficult to equate 
native title with possessory title. Native title relates to a communal interest whist 
possessory title is an individual interest.


(e)	Implications.

The Australian quoted a mining industry spokesman, as saying that the decision 
should not be seen as a precedent:-

"He said miners should not be alarmed by the decision because it referred only 
to a claim by Torres Straight Islanders for nine square kilometres of land on 
Murray Island."

Those comments were misleading. All  of the six judges of the Court who gave 
effect to the concept of native title at common law considered it applicable on the 
mainland84  :-

"...there may be other areas of Australia where native title has not been 
extinguished and where an Aboriginal people, maintaining their identity and 
their customs, are entitled to enjoy their native title."

Deane and Gaudron, JJ. emphasised the application of the principles of the 
concept throughout the "continent"85   and observed that the 
"established 
entitlements of the Australian Aboriginal tribes or clans in relation to traditional 
lands were no less clear, substantial and strong than were the interests of the 
Indian tribes and lands of North America, at least in relation to their traditional 
hunting grounds which remained uncultivated."86  

The Mabo decision has already spawned a number of opportunistic defences. In 
1992 a group of Abalone poachers pleaded in defence to their prosecution that 
they were merely exercising their native fishing rights. The Supreme Court of 
N.S.W. rejected this submission.

The significance of native title and its implications for property holdings and 
resource development turn on the protection bestowed by the Racial 
Discrimination Act, 1975 (Cwth) from the 31st October, 1975. Lands which on 
the 31st October, 1975 were:-

*	unallocated Crown land; or

*	Aboriginal reserved land; or

*	reserved for a use not inconsistent with native title e.g. National Parks 
in some instances; or

*	subject only to exploration tenements or other lesser forms of grant or 
appropriation;

and had not previously been the subject of an inconsistent grant or 
appropriation, are lands where native title could only have been extinguished 
following a process of consultation or consent and compensation. It may be that 
if native title, if it existed, will not have been extinguished after the 31st 
October, 1975. Grants and appropriations made since the 31st October, 1975 
over such lands are not considered to be invalid,but cannot authorise conduct 
inconsistent with native title.

"It might be said that a form of conditional "land freeze" was imposed in 
Australia on 31 October 1975. The freeze followed just over two hundred years 
after a similar freeze was imposed in North America by the Royal Proclamation 
of 1763. ..

Where are the lands where are the lands where a native claim might be credibly 
advanced? The lands are not in settled or urban areas of Australia. In those areas 
native title was extinguished before 31 October 1975. Moreover, the prospects 
of any Aboriginal groups meeting the burden of proof of a claim of native title 
are dim. The backyards of suburban Australia are not under threat. ...

Native title has been recognised as a determinant of government policy and of 
the common law in the United States, Canada and New Zealand for over a 
century. A primary aspect of the pattern adopted to provide for native title in 
those jurisdictions is that of negotiation towards agreements providing a regime 
affording certainty of land titles, and Aboriginal rights of land ownership and 
participation in resource development. All of the agreements have recognised 
and given effect to existing interests of third parties. Aboriginal people have not 
been concerned to prevent development and indeed have been proponents once 
given an opportunity to participate in the economic benefits. ... The essential 
aspect of a long-term resolution of issues arising from Mabo an native title is the 
agreement, and necessarily the commitment, of Aboriginal people to that 
resolution."87  

(f)	Native Title Act, 1993 (Cwth).

(i)	Generally.

Sections 1 and 2 of the Commonwealth Native Title Act, 1993 commenced 
operation on the 24th December, 1993. The balance of the Act, apart from Part 
10, commenced operation on the 1st January, 1994. Part 10 commenced on the 
1st July, 1994.

The Act recognises and protects native title. "Native title" is defined as the rights 
and interests that are possessed under the traditional laws and customs of 
Aboriginal peoples and Torres Strait Islanders in land and waters and that are 
recognised by the common law88  . The Mabo decision referred 
only to native 
land title, but the Act does not preclude the possibility that native title rights and 
interests may also exist in relation to waters.

(ii)	Determination of Native Title.

The Act provides a mechanism to determine whether native title exists and what 
the rights and interests are that comprise that native title. A determination of 
native title under the Act will decide whether the holders have exclusive 
possession and, if not, the native title rights and interests the maker of the 
determination considers to be of importance.

The Act establishes a new body, the National Native Title Tribunal (NNTT), to 
deal with issues of native title, and gives the Federal Court jurisdiction in these 
matters. Applications for determination of native title, and relevant compensation 
claims, may initially be made to the Native Title Registrar. Section 63 provides 
that if various requirements are met the Registrar must accept an application for a 
native title determination by persons claiming to hold the title unless the 
Registrar is of the opinion that the application is frivolous or vexatious or that a 
prima facie case cannot be made out. The Act provides that where Aboriginal 
people hold a pastoral lease over an area, they can claim native title to that 
area89  .

Where an application is accepted, the Registrar is obliged to give notice to a 
range of person. The NNTT will determine unopposed claims. The NNTT will 
seek to mediate contested claims, but if this mediation is unsuccessful, the 
matter will be referred to the Federal Court. The Federal Court will hear 
contested claims for a determination of native title or for compensation. In 
determining claims for native title and compensation, the court may be assisted 
by an assessor.

The Act also recognises that, in some cases, governments and those holding 
relevant interests will wish to know whether native title exists in relation to 
particular land or waters. The Act provides a means for "non-claimant 
applications" to be made for a determination as to the existence or otherwise of 
native title. Where a government has applied to the NNTT for a determination of 
whether native title exists in a particular area and no claims to native title are 
lodged within a specified period, the government can proceed to do any act in 
relation to the relevant area. If native title  is later found to exist the act is not 
thereby invalidated, but compensation is payable.

The NNTT will also be able to inquire into any issue in relation to native title 
referred to it by the Commonwealth Minister. It is hoped that the Federal Court 
and the NNTT will provide an determination mechanism that is fair, economical, 
informal, prompt  and which takes account of the cultural concerns of 
Aboriginal peoples and Torres Strait Islanders. 

States and Territories may set up their own bodies to hear native title claims and 
compensation claims. Where those bodies comply with the criteria and standards 
set out in the Act they may be recognised by the responsible Commonwealth 
Minister. Native title claims may be initiated in either those bodies or the Federal 
system.

The Act also provides for the establishment of two public register, one for native 
title claims (the Register of Native Title Claims) and the other for native title 
determination (the National Native Title Register).

(iii)	Validation Regime.

The Act provides in section 14 for the validation of past Commonwealth acts. 
Section 19 enables States and Territories to validate their past acts on the same 
terms. The Act sets out the effect on native title of the validation of various past 
acts.

Native title holders are entitled to compensation for the effect of the validation of 
past acts on their rights. In claiming compensation native title holders will have a 
right to seek to negotiate non-monetary compensation, including other property 
or the provision of goods or services.

In special circumstances the Commonwealth Minister may direct the NNTT to 
inquire into the effect on Aboriginal peoples and Torres Strait Islanders of the 
validation of particular past acts and alternative forms of compensation.

(iv)	Future Regime.

The Native Title Act  allows future acts, in particular by governments, to affect 
native title rights, providing the are what are called "permissible future 
acts"90  . 
Generally, the requirements to satisfy the "permissible future act" test begins in 
relation to new legislation on the 1st July, 1993, and in relation to other acts on 
the 1st January, 1994.

The Act draws a distinction between "offshore" and "onshore" places. An 
"onshore" place is land or waters located within the limits of a State or Territory. 
The waters off the coast of a State or Territory (known as coastal waters) do not 
fall within this definition. They are "offshore" places, which also include an 
land (eg. reefs and islands) or waters to which the Act extends that re not within 
the limits of a State or Territory.

In the case of onshore places, the Act provides that where an act can be done 
over ordinary title land, it will be permitted over native title land. "Ordinary title 
land" is generally freehold land. All future acts in an offshore place are 
"permissible"even if that place is subject to native title. The making of new 
legislation is "permissible" only if it affects native title holders in the same way 
as it affects ordinary title holders or if it puts native title holders in no worse 
position than ordinary title holders.

An example of a permissible future act is the grant of a mining interest. 
Generally, these grants can be made over freehold land, so they can also be 
made over native title land. Other permissible future acts are those carried out 
under general Compulsory Acquisition Acts. In the future, native title will 
generally only be able to be extinguished by agreement with the native title 
holders or in giving effect to the purpose of an acquisition of native title land 
under Compulsory Acquisition Acts. Native title holders will be entitled to just 
terms compensation for any future extinguishment of their rights and interest. 
Where an act only impairs the title rights onshore, native title holder will be 
entitled to compensation under the same regimes as are applicable to ordinary 
title holders. Offshore, native title holders will be entitled to just terms 
compensation for impairment of their title rights.

In the case of all future acts other than "low impact future acts", native title 
holders are entitled to the same procedural rights as holder of ordinary title, such 
as the right to be notified and to object. In addition, in recognition of the special 
attachment that Aboriginal peoples and Torres Strait Islanders have to their land, 
the Act provides that for certain"permissible future acts', registered native title 
claimants will also have a special right to negotiate before such an act can be 
done. Section 26 sets out the acts to which the right to negotiate will apply. 
They are essentially acts relating to mining, compulsory acquisition of native 
title for the purpose of making a grant to a third party, an any other acts 
approved by the Commonwealth Minister. The right to negotiate does not apply 
if there are no registered native title holders or registered native title claimants 
within two months of notification of the proposed act. In this case the act can 
proceed in the normal way.

Certain grants or classes of grants which have minimal effect on native title can 
be excluded from the right to negotiate by the Commonwealth Minister. Further, 
an act which does not directly interfere with the community life of native title 
holders or involve major disturbance to their land can proceed through an 
expedited process. The right to negotiate is not a veto. If the parties cannot reach 
agreement after negotiation, then any party can apply to the NNTT or the 
recognised State or Territory body, called the "arbitral body", for a 
determination of whether the act may go ahead and if so on what conditions.

Where there is a State or Territory arbitral body, a State or Territory Minister 
may override the determination in the interest of the State or 
Territory91  . If the 
NNTT is the arbitral body, the Commonwealth Minister may override the 
decision in the national or State or Territory interest. Where a State or Territory 
body complies with the relevant criteria and the Commonwealth Minister has 
recognised, that body will be the arbitral body for the State or Territory. There is 
also provision to allow for approval of State or Territory systems which give an 
equivalent right to negotiate. Where thee is an approved alternative State or 
Territory system to deal with acts subject to the right to negotiate, the 
Commonwealth system will not operate.

(v)	Legal Challenge to Native Title Act.

The Land (Titles and Traditional Usage) Act, 1993 (W.A.) commenced 
operation on the 2nd December, 1993. The W.A. Act is not consistent with the 
Commonwealth Act. Western Australia has instituted proceedings in the High 
Court challenging the validity of the Native Title Act in its application to Western 
Australia. The validity of the W.A. Act has also been challenged in a number of 
proceedings.

(g)	Native Title Bill, 1993 (N.S.W.)

An exposure draft Native Title Bill, 1993 was released in August, 1993, but has 
not been introduced into Parliament. The N.S.W. proposal also preceded the 
Commonwealth scheme.

1	Sir Edward Coke Institutes: Commentary upon Littleton, 1628.
2	Section 100(1) Real Property Act.
3	Section 26 Conveyancing Act provides for tenancy in common except 
	where persons take as executors, administrators, trustees, mortgagees 
	or where the instrument  expressly provides they are to take as joint 
	tenants.
4	BHP v. TPC (1980) 31 ALR 401.
5	Mackay v. Wilson (1947) 47 SR (NSW) 315.
6	Section 53(1) Conveyancing Act.
7	Section 27(1) Limitations Act.
8	Clark v. Raymor (Brisbane) Pty. Ltd. (No. 2) [1982] Qd R. 790.
9	Ex parte Lord [1985] 2 Qd R. 198.
10	Stern v. McArthur (1988) 62 A.L.J.R. 588 at 602.
11	Real Property (Caveats) Amendment Act, 1986.
12	Section 74F(5)(b)(v).
13	Section 74O.
14	Section 74H.
15	Sections 74I - 74K.
16	Sections. 42, 43 & 124 Real Property Act.
17	Sections 272 & 274.
18	The New Crown Land Laws by Ian Benecke published in the N.S.W. 
	Law Society Journal of December, 1989 at p. 54.
19	20 % on assessable value of derestricted land which exceeds the 
	prescribed amount $ 100,00.00 which is unreasonable in view of 
	changes to values since 1971.
20	The New Crown Land Laws by Ian Benecke published in the N.S.W. 
	Law Society 
	Journal of December, 1989 at p. 55.
21	(No. 2) (1992) 107 ALJ 1; (1992) 66 ALJR 408.
22	Sir Harry Gibbs, former Chief Justice of Australia in his Foreward to 
	Mabo, A 
	Judicial Revolution, University of Queensland Press, 1993.
23	Professor Richard Bartlett in his commentary to The Mabo Decision, 
	Butterworths, 
	1993 at p. v.
24	Professor Richard Bartlett in his commentary to The Mabo Decision, 
	Butterworths, 
	1993 at p.xxvi.
25	(1847) 1 Legge 312; 2 SCR (N.S.W) App 30.
26	Williams v. Attorney-General (N.S.W.) 91913) 16 CLR 404 and 
	Randwick 
	Corporation v. Rutledge (1959) 102 CLR 54.
27	R v. Symonds [1847] NZPCC 387 at 395.
28	(1971) 17 FLR 141 (NT SC).
29	Milirrpum v. Nabalco Pty. Ltd (1971) 17 FLR 141 (NT SC) at 244-
	245.
30	Milirrpum v. Nabalco Pty. Ltd (1971) 17 FLR 141 (NT SC) at 244.
31	Milirrpum v. Nabalco Pty. Ltd (1971) 17 FLR 141 (NT SC) at 218.
32	Hall J. in Calder v. Attorney-General of British Columbia [1973] SCR 
	313; 91973)  34 DLR (3d) 145, 200 (SC).
33	Coe v. Commonwealth of Australia (1979) 53 ALJR 403.
34	Northern Land Council v. Commonwealth of Australia (No. 2) (1987) 
	61 ALJR 
	616.
35	(1988) 83 ALR 14.
36	(No. 2) (1992) 107 ALR 1; (1992) 66 ALJR 408.
37	Blackstone Commentaries on the Laws of England Book 1, Chapt. 4, 
	108-112.
38	Brennan J., p. 21.
39	Brennan J., p. 25.
40	Brennan J., p. 41; Deane & Gaudron JJ., p. 58; Toohey J., p. 142; 
	Dawson J., p. 
	106-107.
41	Brennan J., p. 41.
42	Deane & Gaudron JJ., p. 82-83.
43	Toohey J., p. 142.
44	Dawson J., p. 106; See Sir H Gibbs, former C.J. of Australia in his 
	foreward to 
	Marbo, A Judicial Revolution, University of Queensland Press, 1993.
45	Brennan J., p. 51; Deane & Gaudron, JJ., p. 58.
46	Brennan J., p. 26; Toohey, J., p. 145.
47	Brennan J., p. 24.
48	Brennan J., p. 51.
49	See below for a definition of "radical title".
50	See below for a definition of "usufructuary".
51	Mabo - A New Dimension to Land Tenure -Whose Land Now? by 
	M.A. Stephenson 
	in Marbo, A Judicial Revolution, University of Queensland Press, 1993 
	at p.102.
52	Mabo - A New Dimension to Land Tenure -Whose Land Now? by 
	M.A. Stephenson 
	in Marbo, A Judicial Revolution, University of Queensland Press, 1993 
	at p.103.
53	Mabo - A New Dimension to Land Tenure -Whose Land Now? by 
	M.A. Stephenson 
	in Marbo, A Judicial Revolution, University of Queensland Press, 1993 
	at p.108.
54	Brennan J., p. 44.
55	The Implications of the "Mabo" Judgment by Margaret Stone in Notes 
	for College 
	of Law seminar, 93/79.4 at p. 5-6.
56	Toohey J., p. 148.
57	Brennan J., p. 36; Deane & Gaudron, JJ., p. 64; Toohey J., p. 146-
	148.
58	Brennan J., p. 43.
59	Deane & Gaudron, JJ., p. 64.
60	Professor Richard Bartlett in his commentary to The Mabo Decision, 
	Butterworths, 
	1993 at p. xix.
61	Brennan J., p. 43; Deane & Gaudron JJ. p. 83.
62	Brennan J., p. 43.
63	Brennan J., p. 43.
64	Professor Richard Bartlett in his commentary to The Mabo Decision, 
	Butterworths, 
	1993 at p. xix referring to the the Privy Council decision of Amodu 
	Tijani v. Secretary of Southern Nigeria [1921] 	2 AC 399 at 409-410 and
	 the Supreme Court of Canada following this proposition in Calder [1973] 
	SCR 313 (per Hall J. at  402)..
65	Professor Richard Bartlett in his commentary to The Mabo Decision, 
	Butterworths, 
	1993 at p. xix.
66	Mason C.J. & McHugh J. p. 7
67	United States v. Sante Fe Pacific Railroad Co. (1942) 314 US 339.
68	Brennan J. p. 47.
69	Brennan J. p. 50.
70	Brennan J. p. 47, citing R v. Sparrow [1990] 1 SCR 1075 at 1097.
71	Brennan J. p. 46-47, 51.
72	Brennan J. p. 51.
73	Brennan J. p. 53, Dawson J. agreed p. 123.
74	Professor Richard Bartlett in his commentary to The Mabo Decision, 
	Butterworths, 
	1993 at p. xxii.
75	Brennan J., p. 49.
76	Brennan J., p. 51.
77	Brennan J., p. 51.
78	Deane & Gaudron JJ. p. 84; Brennan J., p. 52; Toohey J. p. 169.
79	Mabo v. State of Queensland (No. 1) (1988) 83 ALJR 14.
80	Professor Richard Bartlett in his commentary to The Mabo Decision, 
	Butterworths, 
	1993 at p. xxiii.
81	Brennan J., p. 43-44.
82	Guerin v. R (1984) 13 DLR (4th) 321; [1984] 2 SCR 335. Referred to 
	in the 
	context of s. 35 of the Constitution Act of Canada in R v. Sparrow 
	[1990] 1 SCR 1075.
83	Professor Richard Bartlett in his commentary to The Mabo Decision, 
	Butterworths, 
	1993 at p. xxiv.
84	Brennan J., p. 50 (Mason C.J. & McHugh J. concurring).
85	Deane & Gaudron, JJ., p. 91.
86	Deane & Gaudron, JJ., p. 75.
87	Professor Richard Bartlett in his commentary to The Mabo Decision, 
	Butterworths, 
	1993 at p. xxv-xxvi.
88	Native Title Act, 1993, s. 223.
89	s. 47.
90	s. 235.
91	s. 42(1), (3).

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