Property Law Essay PDF

Preview

Summary

Property Law Essay...

Description

The legal suitability of native title as a valid property right has raised difficult questions given the current legal standings on proprietary rights under common law. Developing from the landmark decision of Mabo v Queensland (No 2),1 and the passing of the Native Title Act 1993 (Cth),2 native title land rights were finally given legal recognition within Australia. However, given the unique characteristics of native title, it has proven difficult to recognise native title as a proprietary right under the law due to its limited recognition given specific circumstances.3 Through an analysis of Australia’s common law recognition of proprietary interests, the difficulties that arise in classifying native title as a property right will become prevalent. This analysis will focus on the current three ‘indicia of property’, 4 the doctrine of extinguishment and the required notion that native title land rights must demonstrate a ‘continuous connection to the land’.5 Through an analysis of these key ideas, the difficulties faced in recognising native title as a valid property right under current Australian law will be demonstrated, whilst subsequently highlighting the ideal that native title can be better protected and recognised under its own standalone system of laws.

Currently, the nature of Australia’s recognition of native title rights differs from the common law’s recognition of proprietary rights in both form and characteristics. Native title rights were first recognised in Australia through the nullification of ‘terra nullius’, in the case of Mabo.6 After this landmark case, indigenous rights to land were recognised as being equal to crown title, which shifted the crown’s ‘absolute title to land’ to a ‘radical title’. 7 This recognition was further developed through the passing of the Native Title Act,8 which 1 Mabo v Queensland (No 2) (1992) 175 CLR 1. 2 Native Title Act 1993 (Cth). 3 Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth) (Report no 76, 2015). 4 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. 5 Native Title Act 1993 (Cth) s 233. 6 Mabo v Queensland (1988) 166 CLR 186. 7 Ibid. 8 Native Title Act 1993 (Cth).

1

recognises that in cases where indigenous Australians can demonstrate an ‘uninterrupted connection to the land,9 they are to be granted with proprietary rights over that land. Comparably, Proprietary rights are recognised within our legal system as a key component of private law.

These rights stem from Australia’s colonisation and are founded on the

presumption that indigenous Australians had no right to the land through accepting that there was no prior indigenous legal system.10 Although there may be different ideologies about that constitutes a proprietary interest under the law, the case of Milirrpum v Nabalco Pty Ltd,11 establishes three ‘indicia of proprietary interests’, namely: The right to use and enjoy, the right to alienate and the right to exclude. If it was required by common law for all three of these indicia’s to be present in the recognition of a proprietary right, it would be increasingly difficult for native title to be appropriately recognised. Fortunately for native title rights, Blackburn J establishes in Milirrpum, that ‘all three of these indicia’s do not need to coexist for a proprietary right to be recognised’.12 Therefore, it is crucial to analyse the three recognised indicia’s of property and compare them against the characteristics of native title, to determine whether native title would be recognised as a proprietary right under law.

The first difficulty that arises in recognising native title as a valid property right is adhering to the three indicia of property. These three indicia are outlined in Milirrpum above and include; the right to use and enjoy, the right to alienate and the right to exclude. 13 Firstly, regarding ‘the right to use and enjoy’, it has been established that native title is a ‘bundle of rights’, 14 which provides indigenous Australians the right to use and enjoy crown land and waters for the purposes of ‘hunting, gathering, fishing and to live, including the performance of 9 Ibid s 223. 10 Lisa Strelein, Compromised Jurisprudence: Native Title Cases Since Mabo (Aboriginal Studies Press, 2nd Ed, 2009) 89. 11 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. 12 Ibid. 13 Ibid. 14 Fejo v Northern Territory [1988] 195 CLR 96, 151.

2

traditional activities’.15 This strengthens the recognition of native title as a proprietary right as it can be clearly recognised under common law to shares the characteristics of the first indicia of property, in providing indigenous Australians with the ‘right to use and enjoy’ crown land in specific circumstances. This ideal is further strengthened through its incorporation into the Native Title Act,16 and in pervious international decisions such as the Canadian Supreme Court which recognised native title to extend to the ‘produce of the land’, 17 as well as to the ‘activities of hunting and fishing’.18 However, this right to ‘use and enjoy’ is not absolute, as it is limited through the recognition in the judgement of Ward,19 where it was established that “native title rights and interests that are found to exist do not amount to a right, as against the whole world, to possession, occupation, use and enjoyment of land or waters, it will seldom be appropriate to express the nature and extent of the relevant native title rights and interests by using those terms’.20 Thus, this statement recognises that currently native title rights to ‘use and enjoy’ are not absolute and will only be recognised in specific circumstances which limits its effectiveness and overall recognition as a property right due to this limiting factor.

Furthermore, it is now crucial to consider the second indicia; the right to alienate, as it raises critical concerns against the recognition of nature of native title as a proprietary right. As native title is in practice ‘communal land’,21 issues arise in its inability to alienated outside the indigenous group. According to Deane and Goudron JJ in the case of Mabo, native titles inability to be alienated characterises it as a ‘personal right’ equivalent to ‘mere equity’.22 This ideal was supported by the Canadian Supreme Court which also established that 15 Yanner v Eaton (1999) 201 CLR 351. 16 Native Title Act 1993 (Cth) s 233. 17 Calder v Attorney-General of British Columbia (1973) 34 DLR 145. 18 St Catherine’s Milling and Lumber Co v R (1888) 14 App Cas 46. 19 Western Australia v Ward [2002] HCA 28. 20 Ibid. 21 Shireen Morris, Re-Evaluating Mabo: The Case for Native Title Reform to Remove Discrimination (Land, Rights, Laws, Vol 5, 2012). 22 Mabo v Queensland (No 2) 175 CLR 1, 88.

3

Aboriginal rights are ‘personal’ due to the lack of alienability. 23 If this characterisation was to be accepted, it would be increasingly difficult to classify native title as a property right due to its inalienability outside of indigenous groups. However, this characterisation may be discriminatory in nature, as the law recognises other common law principles such as ‘Fee Tail’ to be considered proprietary in nature, although they do not have the full benefit of alienation.24

In Addition, it is argued that the most significant indica in relation to the recognition of proprietary rights is the third indicia; the right to exclude. According to Edgeworth, an imperative concept at the core of proprietary interests, is ‘the right to exclude the whole world’.25 This ideal is echoed by Gray, who proposes that the fundamental demonstration of ‘control over benefits’ and control over access’,26 is crucial in the recognition of proprietary rights. Fortunately, it has been recognised that indigenous communities have possessed the ability to exclude others from activities such as ‘fishing, hunting and gathering’ in the past. 27 Hence, it is likely that native title rights can be recognised to satisfy the nature of this third indicia. Thus, although it may be recognised that native title rights do not satisfy all the three indicia of property, as significant difficulties arise in its recognition to be alienated outside indigenous groups. It is important to recognise the principle, as Justice Blackburn states that ‘all three indicia’s do not need to coexist for proprietary rights to be recognised’, 28 and due to native title rights sharing key characteristics of two of the indicia’s of property it could be argued to represent a proprietary interest in nature.

23 Attorney-General (Quebec) v A-G (Canada) (1921) 1 AC 401. 24 Janice Gray, ‘Is Native Title a Proprietary Right?’ (Research Paper No 3, University of Technology Sydney, September 2002). 25 Brendan Edgeworth et al, Australian Property Law (LexisNexis, 10th Ed, 2016). 26 Kevin Gray, ‘Property in Thin Air’ (1991) 50(2) Cambridge law Journal 294. 27 Western Australia v Ward [2002] HCA 28. 28 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.

4

Furthermore, although native title may share some key characteristics of the three indicia of property, its recognition as a proprietary right is significantly limited by its ability to be extinguished. Legislation such as the Native Title Act, was introduced to ensure that native title land rights are recognised within our legal system, whilst confirming the establishment of legal methods to extinguish such rights.29 This ideal is further supported by the introduction of amendments to the Native Title Act, which have resulted in native title land rights to become further subordinate.30 Currently, common law recognises three main ways for native title rights to be extinguished. These include: interruption or loss of ‘connection with the land’,31 where there has been an inconsistent grant of land, and where the legislation enacted is ‘inconsistent with native title’.32 The ability of native title to be extinguished through a courts recognition of these vast factors highlight its subordination in comparison to other property rights. This ideal is highlighted by the previous Deputy Prime Minister as he described native title as having “Bucket-loads of extinguishment”.33 Due to native title having ‘bucket-loads’ of ways to be extinguished, tied with the fact that the High Court has recognised that Indigenous people are unable to revive their rights under native title following extinguishment,34 this characteristic portrays the true limitation of native title due to its ability to be so easily set aside by the Crown in comparison to other more established proprietary rights. Although some may argue that reform is needed in the area of extinguishment to further recognise native title as a proprietary right. It is arguable that this would be an incorrect decision, as it would further open the ‘flood gates’ and raise more inconsistencies in the common law’s recognition of proprietary rights. A more favourable argument given the existence of extinguishment is the recognition of native title land rights to 29 Native Title Act 1993 (Cth). 30 Native Title Amendment Act 1998 (Cth). 31 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538. 32 State of Queensland v Congoo (2015) 256 CLR 239. 33 Interview with John Highfield (Tim Fischer, ABC TV World, 4th September 1997). 34 Fejo v Northern Territory (1988) 195 CLR 96.

5

be further enshrined within its own separate system to ensure less inconsistencies between common law and native title claims in the future.

In addition, the inherently unwritten and spiritual nature of indigenous heritage makes it difficult to conceptualise native title as a property right under common law. Section 233(1)(b) of the Native Title Act, requires that indigenous Australians must prove an ‘ongoing and uninterrupted connection with the land since sovereignty’.35 The difficulties in proving this requirement were highlighted in the case of Yorta Yorta,36 where the majority decision of the High Court agreed that the ‘claimants had lost connection to their land due to a failure to prove occupancy in accordance with traditional laws and customs’.37 This requirement is not only extremely onerous to prove, but as portrayed by Watson,38 it gives little consideration to the fact that the indigenous community’s connection to “language, customs and homelands have been altered due to the effects of colonisation, and therefore the native title in reality provides no title”.39 This ideology exemplifies the subordinate status of native title rights in comparison to other property rights and further demonstrates the difficulties faced in recognising native title as a proprietary right within our legal system. The shortcomings in recognising native title as a proprietary right are further highlighted in the majority decision of Ward, which suggests that ‘It is wrong to see Aboriginal connection with land as reflect only in concepts of control of access to it’, as it is understood that indigenous connection to land is inherently ‘spiritual’ in nature.40 Thus, clear difficulties arise in adhering to this requirement, as providing a ‘spiritual connection to land’ is not currently recognised in common law, as our legal system is seen to “impose common law concepts of property on 35 Native Title Act 1993 (Cth) S233. 36 Members of the Yorta Yorta Community v Victoria (2002) 194 ALR 538. 37 Ibid. 38 Nicole Watson, The Aboriginal Tent Embassy (Taylor and Francis, 1st Ed, 2014) 284. 39 Ibid. 40 Western Australia v Ward [2002] HCA 28.

6

peoples and systems which saw the relationship between the community and the land very differently from the common lawyer”.41 This inherent concept of ‘spirituality’ further demonstrates how native title is separate from traditional property rights recognised under common law, and highlight the ideal that native title land rights may be better represented and protected in its own standalone set of laws.

Therefore, as a result of the current characterisation of proprietary rights under common law, with emphasis being placed over ‘control’ as opposed to ‘spiritual connection’, it is arguable that native title is not in itself proprietary, but may be better protected and represented in its own standalone system of law, that operates alongside our current common law system. It is clear that native titles recognition as a proprietary right within our current common law and statutory system is significantly limited due to established characteristics and circumstances which must be adhered to. Which has the subsequent effect of not recognising native title as an absolute property right, but more of a limited proprietary right in nature, due to the restricted circumstances that may grant indigenous communities proprietary rights. This ideal supports the concept that native title land rights should be protected and recognised within a standalone system of laws that do not interfere or rely on our current common law system, as this may be more appropriate in recognising and protecting these rights.

(Word Count: 2349)

41 Ibid.

7...