Introduction to NativeTitle in Australian Land Law

welcome to this presentation on Native title and the foundations of land title in Australia my name is Kate Galloway I'm assistant professor of law at Bond

University and an adjunct at James Cook University uh my interest lies in land teners and in particular the rights of Aboriginal and torist Islander

Australians uh to land now in this presentation we're going to run through the evolution of native title according to Anglo

Australian law so in Broad terms what you'll see on the screen now is the general progression of the underlying

Concepts that justify Anglo Australian law relating to land tenure uh and the first of these of course is Teran alus

which as we'll see is an international law concept from the 17th 18th centuries that justifies the English becoming the Sovereign ruler

over the continent of Australia now Teran alus was accompanied by a common law doctrine of desert and uncultivated which Justified the importation of uh

English concepts of land law into Australia and effectively dispossessed the traditional owners here and then finally what we'll see is this um idea

of land rights uh coming into existence or or coming into fruition through the decision in marau and Beyond so in the bottom line here on the screen are more

particular Concepts that are represented by these doctrines or principles that you see in the top so we see the concept of sovereignty which is necessary to

underpin the idea of land ownership in Australia uh reception of law which is the importation of English law

into Australia and this was justified by the doctrine of desert and uncultivated and the law that was received in Australia is the doctrine of tenure and we'll see the implications of the

doctrine of tenure uh in this presentation today uh the decision in Maro the high court decision

which fundamentally altered the basis on which we understand the operation of the doctrine of tenure in Australia and that was followed of course by the enactment

of the Native title act so against this background which is deliberately from the perspective of

what I'm calling here the Anglo Australian legal system we can contrast the experience of Aboriginal and torist

Islander Australians and what they know to be true so the the knowledge and experiences of traditional owners which is that sovereignty has never been

seeded that the land itself has never been seeded and that traditional law continues so we have this fundamental

tension between the perceptions of the Anglo Australian legal system and the understanding and the truth I guess as it is known by Aboriginal and touristed

Islander Australians so let's start with this idea of sovereignty and what we understand by this and the way that

sovereignty uh claimed by the English feeds into the land ownership or the land law system in Australia itself what

is sovereignty sovereignty uh initially was conceived of both two things one is the power to govern a territory and that

really represents its contemporary understanding uh and the second is the ownership of land now these two

components of the idea of sovereignty as it was originally understood are going to become very important as we work

through the story of land title in Australia so in the 18th and 19th centuries uh there were four ways

recognized at internet ational law to become sovereign now this was an important issue in the so-called age of Discovery because of course the English

would want to lay claim over a territory and be able to uh exclude the Dutch or the French or the Portuguese or whatever so all these questions of sovereignty

were resolved by international law uh which of course in those days was effectively European law so the four

ways recognized to become sovereign were Conquest so you you uh engage in some sort of military campaign and you you win a war and you take over the

territory the second was session so a country would concede their sovereignty to another to rule over them the third

was settlement which as a concept depended on there being no existing Sovereign entity so you can contrast

this idea with conquest and session which assume that there is an existing uh Sovereign entity uh in the territory uh so

settlement presupposes that there is no existing Sovereign and finally there's annexation uh which is another form of um I guess uh

political um uh taking over of a territory accompanied uh by use of force now importantly underpinning all

of this is the concept of whether or not a territory was

already occupied or was already under Sovereign Rule and the presupposition of

settlement was accompanied by the idea of Teran alus which literally means land belonging to no one now this

EX in its extended sense the idea of Teran alus doesn't necessarily mean that there are literally no people there in its extended sense what it means is that

a place has not been settled by anyone else and if you look at the image up on the screen this is an image of cleared land

marked by fences punctuated by buildings and this is really what the English or the Europeans

had in mind when they thought about land being inhabited or already settled

so this contrasts greatly with what they saw when they came to Australia let's think then about the meaning of uninhabited count country uh

and whether there was a recognizable Sovereign on the territory and when the English came to Australia and they saw this apparently deserted place even though they knew

that there were actually people here what we've got is the potential for the application of the concept in its broadest sense of the idea of land

belonging to No One this idea that the place uh called now called Australia was in fact uninhabited country so what this meant for the

purposes of international law is that the English because of their conceptualization of what it meant to

see uh inhabited Land versus uninhabited land was that as a question of law if not of fact they could deem Australia

Teran alus they could deem Australia land belonging to no one and this is what underpinned the claim that

Australia was settled as opposed to any of the other uh means of justifying sovereignty it meant that even though

the English had very limited physical control or possession over the territory of Australia in fact they didn't know how far west it went they didn't

understand the country at all they could make this claim of Teran alas to justify the idea of settlement and therefore make their claim at

international law of uh being The Sovereign Nation so once England could claim Australia at international law the next

question was what were the consequences of that for the laws that applied within Australia itself including what property

laws and the question of uh what rules of ownership of land would apply and what we see here is the Collision of two

systems of landholding so on the one hand you have customary ownership of land the existing

framework for uh possession or control or in in the Anglo Australian system property over land so that existed under

its own norms and rules and there was a fundamental clash between this system and the feudal doctrine of tenure which

is the particular rules and ideas of land ownership and control over land imported by English law now how do we

know that English law applied in Australia and what even happened to the existing customary law so let's just work through these issues in the next

couple of slides English law reflected international law so while at international law we had this concept of

uninhabited country so remember back to that image of the bucolic farmland and the idea of settlement and the idea of what it meant to be inhabited contrasted with what the

English saw in Australia we've got this idea of uninhabited Country and it it it was represented within uh the common law itself so this wasn't a question of

international law but there was an equivalent Doctrine in English law itself uh which is referred to as desert and uncultivated and this was

effectively an equivalent of the idea of Teran alus so in answering the question what property law applied the English

law looked to the mode of acquisition of land so for example land that had been conquered would retain the existing

so-called native law subject to any changes by the Conqueror so you could see it was really important to if land had been conquered English law didn't apply the existing law continued to

apply until it was changed land that had been seeded retained native law subject to any changes by The Sovereign okay so

you've got a similar SAR sort of sort of situation but let's contrast land that was deemed to be desert and uncultivated and therefore

settled in these instances English law applied subject to any needs particular to the Colony

itself so the consequences of declaring that Australia was Teran alus that it was desert and uncultivated that it was

therefore settled meant that English land law was deemed to apply in

Australia this effectively cut out any opportunity for uh the existing peoples AB original and torist Ro Islander

Australians to claim that their systems of law took precedence so let's have a look at what was that English law

English property law was was underpinned by the doctrine of tenure and the doctrine of tenure which continues to apply

is was established in feudal times and it is not only a system of ownership of land it's a political system it's a system of relationships it's a social ordering it does a whole lot of things

let's have a look uh really in in its property owning sense pursuant to the doctrine of tenure the king is literally deemed to

own all the land the king is known as Lord Paramount of the land and the only

possibility for private land ownership is via a grant of land from the king so what you can see there is that

the effect of importing the doctrine of tenure into Australia is that the King was deemed to own all of the land in

Australia so let's use a bit of logic here if the doctrine of tenure applies and if the king literally owns all the land as a consequence of the

doctrine of tenure and further if the only type of possible title is via a grant from the

King then I ask you as a question of logic whether this system of land title can possibly recognize a

pre-existing land ownership so let's see the answer to this question and what is Illustrated in

the diagram that you see now is that the effect of the doctrine of tenure is that it locked customary tenures completely

outside side of a of Anglo Australian landlord there was no possibility for uh contemplating or incorporating customary

tenures into the system of land holding in Australia land was Crown Land all of the land was Crown Land some of it had

not yet been the subject of a ground so it wasn't owned by say a private citizen uh but some of it had already been granted by the crown and once it's

granted by the crown it becomes Freehold land but the crown still owns the underlying uh

title there was a seismic shift however in the decision of marau and the state of Queensland so let's have a look at

the impact of the decision in marau on the structure of Anglo Australian land law the CL was bought by a number of uh

traditional owners from the Maria islands in the taus straet so to the north of Queensland and what you'll see

on the screen here is uh from the um National Library of Australia archives it's a drawing made by Eddie marau the

lead applicant in this decision and this was drawn just on a piece of paper from memory which showed the traditional type

titles uh that he knew from his Island uh in the torus straight and the basis

of his claim was that he objected to the state of Queensland imposing its own um claims on the toist state Islands he

said you can't make these claims on the toist state Islands because we're the owners of the land it doesn't make sense to me that you would make these claims because we have always been the owner of

these lands and we know uh who owns individual Parcels we know where they come from and this is all determined according to our laws and customs and it

does not make sense to me that the state of Queensland would be able to make some sort of a claim and so uh he and his uh

colleagues brought this action to challenge the claims made by the state of Queensland over their land they faced a quite a significant

challenge however so let's have a look at those let's understand what the challenge were one one of the potential

basis for overturning the state's claim to land was to argue that Teran alus did not apply because the land of course was

not uninhabited it was well inhabited and it was inhabited according to a system of laws that was well known to the existing peoples the problem with overturning

Teran alus was that because it is a question of international law the effect of overturning Teran alus would be to

overturn sovereignty so once a court says teranas is gone the English are no longer

Sovereign all of a sudden it actually invalidates the entire governmental structure of the

nation so courts have very consistently declared that it is beyond their jurisdiction to challenge the sovereignty of the existing nation of

course the courts are part of that Sovereign system and they derive their own authority because of that sovereignty so it was not an option to

argue that Teran alus had been overturned the second uh option I guess was to reject

this idea of settlement to say that in fact the land was inhabited it was not uninhabited

land and therefore you did not settle the land this was a myth uh that there was some other basis

on which the English um claimed their their uh sovereignty but also importantly some other basis on which

the legal system was either imported or that there should be recognition of the underlying legal system now the problem with this to reject settlement as a myth

is that there would then be no basis for the English legal system and what the court recognized in Maro that it's too late in the day to uh

to overturn these ideas because would break the skeleton of our system of land law the problem with rejecting the

settlement uh concept as a myth is that all the people who currently held title to land would lose their interests in land and Chaos would ensue so they

needed an argument that would surmount these two quite fundamental problems so let's have

a look at how uh marau and his fellow applicants dealt with this problem or the way that the court interpreted dealing with this problem so

in the first place the court confirmed sovereignty it's beyond the jurisdiction of the court to overturn any claims of sovereignty by the English in

Australia the second uh uh uh confirmation I guess is that of Teran alus it still applies it's an international law concept and we

cannot overturn an international law concept it is outside our jurisdiction but the option did exist to

update the common law and this is how they did it the court found that Australia was

settled but occupied so they effectively created a new category and this would have

implications for the way in which the law itself was received or interpreted so as a consequence of

Australia being settled but occupied the court interpreted the crown rights upon

settlement to be split it split the idea of sovereign from the idea of land

ownership it identified that sovereignty the right to govern over a territory was quite different from the

ownership of land and this resulted in a new conceptualization of the doctrine of

tenure it resulted in an Australian doctrine of tenure which supports the capacity for the existence of an

alternative type of title one that's called native title so let's see how this is

done the way that the court interpreted the effect of being a settled but occupied nation is that

the land law that was received divorced sovereignty from ownership so the court said that as a

consequence of sovereignty the English secured what's known as radical title this is a type of title that

belongs to the crown it includes the power to Grant interests in

land however this is not the same as full beneficial title the court said that upon settlement the crown obtained radical

title but at that point the traditional owners the existing occupants of Australia held full beneficial title so

the full beneficial title belonged to traditional owners however it can easily be

extinguished the reason it can be extinguished is that radical title and the powers of

sovereignty authorize the crown to do that so it is a lesser title it's a fragile title but importantly it does

exist and continues to exist until and unless it has been extinguished by the crown itself so once native title is

extinguished at that point the doctrine of tenure kicks in the crown has full title and all of the

other aspects of the doctrine of T of the doctrine of tenure will come into play to establish native title because

indeed as we'll see the onus is on uh the claimants the traditional owners to establish that they hold native title requires in very broad terms two

components one is an ongoing connection with land in accordance with the Norms the laws and the Customs that were in

existence at the date of English settlement and the second requirement is that it has not been extinguished by the

operation of crown power what's really important to understand as a consequence of the

decision in marau is that a grant of fee simple which invokes the doctrine of Tenya is fundamentally incom

incompatible with Native title that this evinces a clear and plain intention by the crown to extinguish native title and

for this reason the decision in marbo was never a threat to any Freehold title that had been granted already at that date in

Australia since Maro a number of key uh events have occurred so we had this this fundamental shift in the entire understanding of the way in which the

doctrine of Tena operated in Australia and it was followed by the by the native title act which provided a statutory basis upon which traditional owners

could make claims uh for a determination of native title over their traditional lands there

were subsequently amendments which to the native title act which narrowed the scope of native title uh quite a

well-known decision in y y in the early 2000s further narrowed the conceptualization of the basis of

traditional owner claims to Native title and what we've seen as the general trajectory of native title jurist Prudence since the decision of marau has

been what I'd probably consider to be a chipping away or an erosion of the foundation of native title and the way that it is understood by the Anglo

Australian legal system so especially in the early days a number of key decisions uh were made in relation to Native title it was

challenged left right and Center so we just quickly run through some of the challenges that were made to Native titles so the first question was asked

in the decision of Western aater and the Commonwealth is it even constitutional uh is it is it possible for um a federal claim for

example uh or or a claim um the claim in terms of state land to be overridden by uh by some sort of universally applicable law and the court said yes it is

constitutional West Australia and the Commonwealth asked whether the states can overrule native title and there was attempt an attempt made uh to to do that and the court said no you can't overrule

native title what about said Western as Trader in the Commonwealth and implied extinguishment through the fact of the state continuing

to exercise its Sovereign rights has there been an implied extinguishment and the court said no um you need a clear and plain intention to extinguish native

title uh through Parliament or through executive order and only that will be sufficient you can't have any sort of implied extinguishment in fago the court was

asked whether native title can revive so once land has been granted if it then uh reverts to Crown Land Is it possible that native title will spring up again

the court said no once it's gone it's gone forever it cannot be revived the very well-known decision in Wick uh asked whether a grant of a

pastoral lease would change the underlying title so was it possible for one type of State Grant a pastoral lease

to coexist with underlying beneficial interest in land and the court said in this case pastoral leases that were

granted as a consequence of a particular statute uh could certainly exist or coexist with Native title rights and it

was this decision in Wick that prompted amendments to the native title act to read down the scope of native title

in the Y to Y decision uh there was uh quite a uh there was an issue of connection the question of connection and in this case the court found that

while the applicants uh the traditional owners had been successful in Reviving their culture the fact uh of or the

reality of dispossession the reality of removal from lands over over years meant that they hadn't had that continuous connection with land that was required

to demonstrate native title so that's another example of the um diminishing uh scope I think of the

rights of traditional owners so just a couple of maps here to illustrate the extent of native title in

Australia and this is current as at 31 December 2016 here's a register of native Title claims so the blue Parts on this map are the claims that have currently that are currently in

existence as registered by the national native title tribunal so if you have a look at the

location of those claims you'll see that by and large they are in parts of Australia that tend to be uh less

intensively built up or settled uh with with you know metropolitan cities and that sort of thing probably with the exception over in Perth um and around there in the southwest which is the

subject of the Nar claim which is presently um under negotiation uh with the West Australian government in the

next map what we see other determinations so the areas shown here are areas that have already been

litigated and that have been determined um as to whether they um Native title exists or doesn't exist so

fairly significant areas in one sense I guess but um not all have been successful and again you'll note that

they tend to be outside uh existing metropolitan areas so just a quick overview of what

we have traversed so far this idea of teranas which support orted the British

claims to sovereignty it's a question of international law and it affirms that England has the power to rule over the

territory the common law question of what laws applied was uh enforced through the doctrine of desert and uncultivated and this permitted the

reception of English law and the doctrine of tenure into Australia we saw that the do of tenure does not permit

any type of ownership of land or system of ownership of land that is outside uh the grant of the crown and

that in fact all land vests in the crown the land rights phase and the Declaration in marau resulted in a

fundamental change to the doctrine of tenure it divorced sovereignty from ownership sh of land and confirmed that

the crown only received uh a radical title at settlement it found that because Australia was settled but occupied that

the full beneficial title to land remained vested in traditional owners and of course since marau we've seen the enactment of the Native title Act and

the slow Devolution of the scope of native title is itself and just one last reflection and this is a statement by the northern land

Council chief executive about the OD Valley sugar industry development within the last couple of years he said if we could move away as a nation from treating Aboriginal people as the final

hurdle in a development consent process to placing them upfront then perhaps we might get somewhere in Northern Australia and that's where we'll leave

this present ation uh to cause you to think a little bit about the orientation of our understanding of

interests in land and how that plays out in the greater scheme of things