Aboriginal Customary Law: A Source of Common Law Title to Land 9781474202015, 9781849465533

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Dedication For all who have had injustices committed against them and all who are prepared to stand up for justice. For my parents, Edith (1939–1999) and Leif Secher, and my grandmother, Tove Petersen (1909–1999), who always believed in me and taught me the importance of tradition; my parents-in-law, Mim and John Bates, who taught me the importance of always being true to oneself; my step-mother, Joyce Secher (1938–2012), who made the best lemonade when life gave her lemons; Elaine and Graham Lollo, who have always been there for me and are an indispensible part of my tradition.

Inspiration My life partner, Robert Kempson Bates: his unrivalled knowledge of the subject matter of his chosen profession, unique style of humour and, above all else, sincerity and integrity. Although knowledge is important, to use the words of the Dalai Lama: ‘If we had to choose between learning and virtue, the latter is definitely more valuable. The good heart which is the fruit of virtue is by itself a great benefit to humanity. Mere knowledge is not’.

Foreword KENT MCNEIL

English common law was spread around the world as a result of the British Crown’s acquisition of overseas colonies. The common law had been created, and was continually being developed, by English judges whose proprietary worldview was shaped by Norman feudalism and its underlying premise that all land in the realm had originally been occupied and therefore owned by the King. This feudal fiction provided the supposed factual basis for the legal doctrine of tenure, whereby all privately held land was deemed to have been granted by the King and was held of him in return for services. Reception of the common law in the American colonies, Australia, and New Zealand created serious conceptual difficulties. Feudalism had already lost much of its significance in England by the time the Crown’s first American colonies were acquired, and had been further eroded by the Tenures Abolition Act of 1660 and social, economic, and political changes in England by the time Australia and New Zealand became part of the Crown’s dominions. The doctrine of tenure endured nonetheless, and was exported to these colonies as part of the common law that was thought to be applicable there. But why would a feudal doctrine that had already lost most of its importance in England be applicable in these colonies? Did the feudal fiction of original Crown occupation and ownership of land apply in the same way it applied in England? What about the Indigenous peoples living in these colonies who occupied and used land in accordance with their own traditions and ways of life, including their own legal orders? Did the common law deny them legal land rights because they did not have Crown grants and could not be accommodated within the somewhat obsolete doctrine of tenure? While these questions have been posed and addressed more or less obliquely by judges in the United States, Canada and New Zealand, courts in Australia have confronted them more directly, with dismaying results until the High Court’s landmark decision in Mabo v Queensland [No 2] in 1992. In a line of cases going back to Attorney-General v Brown (1847), the doctrine of tenure was held to apply and give the Crown original title to all land in Australia from the time of colonisation. All other titles to land therefore had to be acquired from the Crown by grant. In Milirrpum v Nabalco Pty in 1971, Justice Blackburn of the Northern Territory Supreme Court took this approach to what he considered to be its logical conclusion: the Indigenous peoples of Australia, though occupying lands in accordance with their own systems of law, had no land rights that could be acknowledged by an Australian court because they had not been granted their lands by the Crown. In other words, the doctrine of tenure, as interpreted and applied by Australian judges, trumped any Indigenous land rights. This disturbing conclusion could not stand. As we all know, it was overturned by the Mabo decision, in which the High Court held that Indigenous land rights, based on occupation of lands in accordance with Indigenous customs and laws, survived colonisation

viii  Foreword and are enforceable in Australian courts, unless validly extinguished. The application of the doctrine of tenure was nonetheless affirmed, but modified to accommodate Indigenous land rights in the form of native title. Instead of giving the Crown a complete beneficial interest in lands occupied by Indigenous peoples, the doctrine conferred a radical title on the Crown. According to the Court, the Crown could convert this radical title into beneficial ownership by appropriating the land to its own use, thereby extinguishing the native title. Alternatively, it could extinguish the native title by granting an interest in the land to private persons or corporations that entitled them to exclusive possession. The Mabo decision left some fundamental questions unanswered. Among them, what exactly is the nature of the Crown’s radical title? Is it a property interest, an aspect of the Crown’s sovereignty, or both? How could the Crown extinguish native title by appropriation or grant, given the common law’s traditional protection of property rights against prerogative power? These are among the fundamental questions that Dr Ulla Secher addresses and seeks to answer in this ground-breaking book. In doing so, she ranges far beyond Australia, drawing on legal history and case law not only from England but also from former British colonies in Africa, as well as from the United States, Canada and New Zealand. Her review of the relevant authorities is comprehensive and impressive, but more importantly her understanding of the case law provides a fresh perspective that leads to a re-evaluation of received doctrines, including the doctrine of tenure. These contributions are stimulating and rewarding, and make this book a rich reading experience. But Dr Secher is not content with reinterpretation and re-evaluation of existing authorities. These parts of the book serve a more important purpose, namely to develop an alternative approach to Indigenous land rights that avoids some of the problems arising from the law as currently understood, such as the vulnerability of native title to Crown appropriation and grant in Australia. This alternative approach is systematically grounded in a fundamental reconceptualisation of the Crown’s title to land in former British colonies, whether they were acquired originally by settlement or derivatively by conquest or cession. For this reason, her approach is not limited in application to Australia; as she convincingly demonstrates, it is relevant to other jurisdictions as well, particularly Canada and South Africa. In the 20 years since the Mabo decision, an extensive literature has been produced on the land rights of Indigenous peoples. This research has contributed enormously to our understanding of the legal impact of colonisation in Australia and elsewhere. With rare exceptions, however, the existing literature does not probe as deeply or question fundamental assumptions as thoroughly as Dr Secher does in her research. She goes to the root of the conceptual problems around the legal nature of Indigenous land rights and their vulnerability to extinguishment in the former colonial empire of the Crown. This book is a formidable contribution that I expect will be influential in shifting legal thinking on Indigenous land rights in progressive new directions. Kent McNeil Distinguished Research Professor, York University, Toronto

Preface My object in undertaking this book is to offer an alternative to conventional Aboriginal title doctrine. The book explains that Aboriginal customary law can be a valid source of common law title to land in former British colonies, whether they were acquired by settlement (including Australia and the settled regions of Canada) or by conquest and/or cession from another colonising power (including South Africa and the Canadian Province of Quebec). Pursuant to the doctrine of Common Law Aboriginal Customary Title, Aboriginal people can establish common law title to land upon proof that they have a title by virtue of their own customary laws whether the existence of such title arose before or after Crown sovereignty. This new doctrine provides a coherent approach to the source, content, proof and protection of Aboriginal land rights which overcomes problems arising from the law as currently understood. While the jurisprudential underpinnings for the doctrine are consistent with fundamental common law principles, including the conventional view of the Crown’s radical title and received doctrines, the book also explains that the Australian High Court’s decision in Mabo provides a broader basis for the doctrine; a broader basis which is consistent with a re-evaluation of relevant case law from former British colonies in Africa, as well as from the United States, New Zealand and Canada. Twenty-one years have elapsed since the Mabo Court acknowledged that upon settlement of Australia the Crown acquired a radical title to all land rather than absolute beneficial ownership of all land. Although this meant that the basic assumption that had guided all Australian real property law since colonisation was undermined, the only legal consequence of the Crown’s acquisition of radical title which was authoritatively determined by the High Court was that it enabled non-Crown derived native title rights to be accommodated within Australian land law, on the one hand, and to be exposed to unilateral extinguishment by Crown appropriation and grant, on the other. A result was given to us: the problem is to elucidate the origins and application of the Crown’s radical title in order to assess the further legal implications of the retrospectively redefined legal nature of the Crown’s initial title to land for Aboriginal land rights. The mode in which the principles of this important branch of law are dealt begins by recognising that real property rights (both Aboriginal and Anglo-Saxon) as they exist today cannot be fully appreciated without an understanding of the influences that have moulded them. There is no doubt that history provides a context which explains why something came into being and to understand this is an indispensable first stage to evaluating why, if at all, it should continue. The book shows that legal history, authority and principle combine to support the proposition that, contrary to the received view, the Crown’s radical title does not automatically confer beneficial ownership of any land, whether or not the land is subject to native/Aboriginal title. It is this reconceptualisation of the Crown’s title to land in former British colonies as well as a related reassessment of the conventional doctrines of tenure and continuity which provide a broader jurisprudential basis for recognising Aboriginal customary title.

x  Preface Irrespective of the doctrinal underpinnings for common law Aboriginal customary title, the challenge for the future is for former colonies of the British Empire (including Australia, Canada and South Africa) to develop both their inherited and unique legal traditions to finally, in the twenty-first century, redress the destructive effects of colonisation on Aboriginal rights to land. In answer to Tristram Shandy’s question – ‘shall we for ever make new books, as apothecaries make new mixtures, by pouring only out of one vessel into another’ – I have poured from many vessels, old and new, and the new mixture is offered as an alternative to conventional Aboriginal title doctrine: an alternative which is not only consistent with fundamental common law principles, but is coherent and leads to more just results. My hope is that future courts of former colonising powers may consider this new interpretation of the interwoven issues of Aboriginal rights to land, the Crown’s radical title and justice. The book attempts to represent the law, to the best of the author’s knowledge, up to the date of February 2013. Ulla Secher (Visiting Fellow, Faculty of Law, University of New South Wales, Sydney, Australia)

Acknowledgements Of the many people who have enriched my knowledge and broadened my perspectives, I am especially grateful to Professor Brendan Edgeworth and Professor Harrison Alexander Amankwah, the two supervisors of my doctoral thesis, who at all times gave me the fullest benefit of their learning and criticism: the seeds of a future book were sown. I acknowledge with gratitude the honour done to me by Professor Kent McNeil – Distinguished Research Professor, York University, Toronto – in kindly writing the Foreword. Professor McNeil’s critically important contributions to Aboriginal title jurisprudence originally inspired and continue to inspire my research in this difficult field of law. My warmest and most sincere thanks go to Professor McNeil for his guidance, support and encouragement in the production of this book. His thoughtful comments on the draft of this work were invaluable to me: his perceptive questions and suggestions and unremitting attention to detail made a real contribution. I have also incurred debts of gratitude to: Andrea Olsen, Senior Legal Officer, Queensland South Native Title Services, for her discerning feedback on an earlier draft of chapter four; David Foster, for his extremely helpful comments during the production of the articles upon which chapter five is based; Samantha Cohen, for her excellent research assistance for chapter eight; and Louise Rotondo, friend and founder of Monika Publications, for her editorial assistance. Responsibility for any errors remains my own. I also acknow­ ledge all the remarkable thinkers who have contributed, and who will contribute in the future, to the pursuit of justice for Aboriginal land rights. Although their reputation precedes them, it would be wrong if I did not mention specifically the team at Hart Publications (especially Richard Hart, Rachel Turner, Melanie Hamill, Tom Adams, Joanne Ledger and the cover designer, Nick Clarke) for their skill and generosity. I owe them a major debt of gratitude. Special thanks go to my family and friends (especially my dearest friends, Camille Tanner and Sarah Wheatley) for understanding when I was busy. Most importantly, my heartfelt thanks go to Robert Bates, my partner and best friend, who has provided constant support, encouragement and patience during the long production of this book. His unconditional love and humour throughout the writing process made it (like he makes everything else) a genuinely enjoyable experience.

Table of Cases Australia Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 (HCA)....................................................................................................... 33, 77, 101 Akiba v Commonwealth [2012] HCATrans 245........................................................ 232 Akiba v Commonwealth [2013] HCA 33, (2013) 87 ALJR 916.............................................................................198, 211, 223–29, 231–33 Akiba v Queensland (No 2) [2010] FCA 643, (2010) 270 ALR 564........................................................................198, 211, 223–29, 231–33, 447 Anderson v Wilson [2000] FCA 394, (2000) 97 FCR 453 (FCAFC)...............177, 182, 187 Attorney–General v Boyle (1893) 14 NSWLR 424 (NSWSC)..................................... 262 Attorney–General v Cochrane (1970) 91 WN (NSW) 861 (NSWCA)...................178, 240 Attorney–General (NSW) v Brown (1847) 1 Legge 312 (NSWSC).................................................................. 4–5, 9–10, 20, 26, 31–32, 34, 47, 49–50, 55, 66, 88, 94, 96, 150–55, 240–44, 249, 253–54, 262–66, 271, 310, 371, 445, 447–48 Australian Communist Party v Commonwealth (1951) 83 CLR 1 (HCA)................... 125 Bodney v Bennell [2008] FCAFC 63, (2008) 167 FCR 84.....................................220, 228 Bodney v Westralia Airports Corp Pty Ltd [2000] FCA 1609, (2000) 109 FCR 178........................................................................................................185, 269 Brown v Western Australia [2012] FCAFC 154, (2012) 208 FCR 505.......................... 184 Brown v Western Australia (No 2) [2013] FCAFC 18................................................. 184 Bulun Bulun v R & T Textiles Pty Ltd (1998) 86 FCR 244 (FCA)............................... 291 Cadia Holdings Pty Ltd v New South Wales [2010] HCA 27, (2010) 242 CLR 195...... 283 CJ Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400 (HCA).................................................................................................................. 163 Clunies–Ross v Commonwealth (1984) 155 CLR 193 (HCA)..................................... 125 Coe v Commonwealth (1979) 24 ALR 118 (HCA)................................... 33, 97, 111, 361 Collins, Ex p (1914) 14 SR (NSW) 31 (NSWSC)........................................................ 269 Commonwealth v Akiba [2012] FCAFC 25, (2012) 204 FCR 260.......................................................................................198, 211, 223–29, 231–33 Commonwealth v Anderson (1960) 105 CLR 303 (HCA).......................................... 278 Commonwealth v Hazeldell Ltd (1918) 25 CLR 552 (HCA)...................................... 117 Commonwealth v New South Wales (1923) 33 CLR 1 (HCA).............................265, 273 Commonwealth v WMC Resources Ltd [1998] HCA 8, (1998) 194 CLR 1...........196–97, 200–02, 204–10, 220, 226–27, 233–34, 248, 447 Commonwealth v Yarmirr [1999] FCA 1668, (1999) 101 FCR 171 (FCAFC).................................................................. 188–89, 196–97, 200–01, 203–16, 219–20, 225–26, 232–34, 291, 295, 298, 447 Commonwealth v Yarmirr [2001] HCA 56, (2001) 208 CLR 1........................................................... 1, 4, 85, 107, 135–36, 197–200, 204, 211, 214–22, 225–28, 231–34, 255, 259, 287–88, 447

xx  Table of Cases Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 (HCA)..................................................................................................31, 94, 241–43 Daniel v Western Australia [2003] FCA 666.......................................................190, 322 Daniel v Western Australia [2003] FCA 1425........................................................189–90 Darug case. See Gale v Minister for Land & Water Conservation for New South Wales De Rose v South Australia [2002] FCA 1342.......................................................190, 322 De Rose v South Australia [2003] FCAFC 286, 133 FCR 325..................................... 323 De Rose v South Australia (No 2) [2005] FCAFC 110, (2005) 145 FCR 290................ 190 Delohery v Permanent Trustee Co of NSW (1904) 1 CLR 283 (HCA).................103, 302 Doe d Wilson v Terry (1849) 1 Legge 505 (NSWSC)............ 26, 31–32, 241, 243, 247, 249 Eckford v Stanbroke Pastoral Co Pty Ltd [2012] QSC 48, [2012] 2 Qd R 324......................................................................................167, 170, 174, 266 Fejo v Northern Territory [1998] HCA 58, (1998) 195 CLR 96.........1, 4, 59, 91, 102, 109, 122, 124, 129, 135, 151, 177, 181, 183–86, 189, 240, 255, 268, 287–92, 299, 303, 325, 449 Fisher v Deputy Federal Commissioner of Land Tax (NSW) (1915) 20 CLR 242 (HCA)........................................................................................................... 176 Gale v Minister for Land & Water Conservation for New South Wales [2004] FCA 374 (Darug case)...............................................................................327–29, 456 Geita Sebea v Territory of Papua (1941) 67 CLR 544 (HCA).......................................77 Georgeski v Owners Corporation SP49833 [2004] NSWSC 1096, (2004) 62 NSWLR 534..................................................................................................... 222 Gove Land Rights Case. See Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (NTSC) Griffiths v Northern Territory [2006] FCA 903, 165 FCR 300...............................323–24 Gumana v Northern Territory [2005] FCA 50, (2005) 141 FCR 457................................................................. 107, 197–98, 211, 215–16, 220–23, 233–34, 323–25, 329–30, 335, 386, 447 Gumana v Northern Territory (No 2) [2005] FCA 1425............................................ 221 Gumana v Northern Territory [2007] FCAFC 23, (2007) 158 FCR 349..................221–22 Gurubana–Gunggandji People Determination (National Native Title Tribunal 1995, QN94/12) 17................................................................................................ 161 Harper v Minister for Seas Fisheries (1989) 168 CLR 314 (HCA).............................................................................................. 204, 229, 231–32 Hatfield v Alford (1846) 1 Legge 330 (NSWSC)....................................... 31–32, 156, 241 Hawkins v Minister for Lands (NSW) (1949) 78 CLR 479 (HCA).........................176–77 Hayes v Northern Territory [1999] FCA 1248, (1999) 97 FCR 32 (FCA).................... 275 James v Western Australia [2010] FCAFC 77, (2010) FCR 582................................... 269 Lardil Peoples v Queensland [2004] FCA 298.......................................107, 199, 221, 323 Leahy, Ex p (1904) 4 SR (NSW) 401 (NSWSC).......................................................... 126 Lockwood v Wood (1844) 6 QB 50........................................................................... 295 Mabo v Queensland (No 1) (1988) 166 CLR 186 (HCA).............................105, 127, 268 Mabo v Queensland (No 2) [1991] HCATrans 23 (28 May 1991).................................97 Mabo v Queensland (No 2) [1991] HCATrans 24 (29 May 1991).................................97 Mabo v Queensland (No 2) [1991] HCATrans 25 (30 May 1991).................................97 Mabo v Queensland (No 2) [1991] HCATrans 26 (31 May 1991).................................97



Table of Cases xxi

Mabo v Queensland (No 2) (1992) 175 CLR 1 (HCA).............i, vii–ix, 1–4, 9–10, 19, 21, 24, 26–27, 29–39, 43–45, 50, 54–55, 61–62, 64, 66–67, 69, 74–78, 81–107, 109–13, 115–16, 119, 121–24, 126–41, 147–67, 170–71, 175–76, 181–84, 187–89, 193–94, 196–201, 210–11, 216–17, 219, 224, 233, 239–41, 243–46, 249, 251–56, 258–61, 264–66, 269–78, 282–84, 286–91, 294, 298, 304, 306–07, 309, 312–14, 318–19, 321–22, 324–25, 327–28, 330, 334, 340, 342–43, 345, 351–53, 358, 360–61, 365–66, 371, 373–74, 376–77, 381–86, 390–92, 400–05, 407, 431, 435, 442–48, 452 MacDonald v Levy (1833) 1 Legge 39 (NSWSC)................................................... 29, 31 McCaughey v Commissioner of Stamp Duties (1945) 46 SR (NSW) 192 (NSWSC).... 273 McHugh v Robertson (1885) 11 VLR 410 (VicSC) 431.................................................29 Marriage of Duff, Re (1977) 15 ALR 476 (FamCA)................................................... 273 Mason v Tritton (1994) 34 NSWLR 572 (NSWCA)................................................... 323 Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606...... 150 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58, (2002) 214 CLR 422................................................................ 135–136, 212, 228, 288, 292, 303, 312, 323–29, 340, 449 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (NTSC) (Gove Land Rights Case).................................................................... vii, 27, 29, 31–33, 37, 76–77, 85, 94, 105–06, 111, 139, 241, 381–82 Minister for Army v Dalziel (1944) 68 CLR 261 (HCA)............................................. 273 Moses v Western Australia [2007] FCAFC 78, 160 FCR 148...................................... 323 New South Wales v The Commonwealth (1975) 135 CLR 337 (HCA) 439........................................................ 31–32, 97, 111–12, 200–01, 206, 209, 243, 282 Nolan v Willimbong Shire Council (1939) 14 LGR (NSW) 89 (NSW Land and Valuation Ct)........................................................................................................ 175 North Ganalanja Aboriginal Corp v Queensland (1995) 61 FCR 1 (FCA)....161, 166, 168 Northern Land Council v Commonwealth (No 2) (1987) 75 ALR 210 (HCA)..............33 Northern Territory v Arnhem Land Aboriginal Land Trust [2008] HCA 29, (2008) 236 CLR 24..................................................................................223, 231, 332 Nullagine Investments Pty Ltd v Western Australia Club Inc (1993) 177 CLR 635 (HCA)........................................................................................................... 109 Pareroultja v Tickner (1993) 42 FCR 32 (FCA).....................................................138–39 R v Cooper (1886) 7 LR (NSW) 15 (NSWSC)............................................................ 262 R v Farrell (1831) 1 Legge 5 (NSWSC)........................................................................31 R v Steel (1834) 1 Legge 65 (NSWSC)................................. 26, 31–32, 153, 241, 249, 261 Rayment, Ex p (1904) 4 SR (NSW) 401 (NSWSC).......................................................26 Risk v Northern Territory [2002] HCA 23, (2002) 210 CLR 392.........................215, 222 Robinson v Western Australia Museum (1977) 138 CLR 283 (HCA)...................200, 206 Rogers v Squire (1978) 46 FLR 372 (NTSC)............................................................... 348 State Government Insurance Commission v Trigwell (1979) 142 CLR 617 (HCA)........30 Step v Hinton [2012] HCASL 84 (20 June 2012)...................................................251–52 Step v Hinton [2012] NTCA 3..................................................... 156, 250, 275, 277, 310 Sutherland Shire Council v Heyman (1985) 157 CLR 424 (HCA)............................... 128 Sydney Harbour Trust Commissioners v Wailes (1908) 5 CLR 879 (HCA)............272–73 Turrbal People v Queensland [2006] FCA 187, (2006) 150 FCR 103........................... 190 Wacando v Commonwealth (1981) 148 CLR 11 (HCA)...............................................97

xxii  Table of Cases Walsh v Minister for Lands for NSW (1960) 103 CLR 240 (HCA).............................. 271 Ward v Western Australia (1998) 159 ALR 483 (FCA).................... 182, 188, 248, 267–69, 275–76, 279, 290, 306, 310, 324 Western Australia v The Commonwealth (1995) 183 CLR 373 (HCA)................................................... 29, 84, 87, 109–10, 124, 135, 270–72, 360, 447 Western Australia v Ward [2000] FCA 191, (2000) 99 FCR 316 (FCAFC)......................................................................... 102, 135, 137, 154, 182, 184, 186–190, 195, 248, 268, 276, 290, 391 Western Australia v Ward [2002] HCA 28, (2002) 213 CLR 1....... 107, 109, 135, 148, 152, 165, 177, 181, 183–184, 186–90, 192, 195, 214, 221, 247–48, 267–70, 273, 276, 279, 284, 288, 291, 322, 447 White v McLean (1890) 24 SASR 97 (SASC)................................................................30 Wik Peoples v Queensland (1996) 187 CLR 1 (HCA)........ 1–2, 4, 86, 89–90, 102, 109–10, 122, 124, 135–37, 142, 148–49, 155, 159–61, 165–74, 176–86, 188–91, 194–97, 202, 207–08, 210, 217, 223, 233–34, 240, 247, 251, 265–66, 269–79, 283–84, 286, 290, 292, 318, 447 Williams v Attorney–General for New South Wales (1913) 16 CLR 404 (HCA).......................................................26, 31–32, 87, 94, 103, 157, 241–43, 280–83 Wilson v Anderson [2002] HCA 29, (2002) 213 CLR 401......... 109, 135, 165, 175–77, 195 Yanner v Eaton [1999] HCA 53, (1999) 201 CLR 351...........................102, 135, 154, 170, 183–84, 186, 188, 232, 248, 273 Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 (FCA)..........................................................................203–204, 214–15, 272, 290–291

Belize Mayan Leaders Alliance and the Toledo Alcaldes Association on behalf of the Mayan Villages of Toledo District v Attorney–General Belize (Supreme Court of Belize, 28 June 2010)............................................................................................................ 332

Canada Attorney–General for Ontario v Bear Island Foundation (1984) 49 OR (2d) 353 (Ont HC)............................................................................................................. 389 Baker Lake v Minister of Indian Affairs and Northern Development [1980] 1 FC 518 (Can FC).................................................. 380–85, 388–89, 392, 396, 399, 435, 452 Beckman v Little Salmon/CarmacksFirst Nation 2010 SCC 53, [2010] 3 SCR 103....... 385 British Columbia (Attorney General) v Lafarge Canada Inc 2007 SCC 23, [2007] 2 SCR 86.............................................................................................................. 359 Calder v Attorney–General of British Columbia (1969) 8 DLR (3d) 59 (BCSC); (1971) 13 DLR (3d) 64 (BCCA)............................................................................. 369 Calder v Attorney–General of British Columbia [1973] SCR 313 (SCC).............................................................. 42, 101, 271, 366, 368–81, 383, 385–86, 388–89, 391–92, 395, 399, 435, 452



Table of Cases xxiii

Campbell v British Columbia (Attorney–General) 2000 BCSC 1123, (2000) 189 DLR (4th) 333...................................................................................................... 314 Canadian Pacific Ltd v Paul [1988] 2 SCR 654 (SCC)................................................. 369 Canadian Western Bank v Alberta 2007 SCC 22, [2007] 2 SCR 3............................... 359 Chippewas of Sarnia Band v Attorney–General (Canada) (2000) 195 DLR (4th) 135 (Ont CA)................................................................................................385, 390 Delgamuukw v British Columbia (1991) 79 DLR (4th) 185 (BCSC).....................393, 401 Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 (BCCA)......................................................................182, 271–72, 295, 298, 366, 376, 388–89, 393, 400–03, 407–09, 436, 452 Delgamuukw v British Columbia [1997] 3 SCR 1010 (SCC)................. 110, 288, 312–14, 320–22, 329, 331, 343, 358–60, 366, 377, 386–90, 392–400, 404–20, 422–24, 426, 429–31, 435–41, 451–55 Dick v R [1985] 2 SCR 309 (SCC)........................................................................359–60 Guerin v R [1984] 2 SCR 335 (SCC).........................................101, 385–89, 392, 394–96, 402–03, 434–36, 441, 452, 455 Hamilton v R (1917) 54 SCR 331 (SCC).................................................................... 262 Hughes v Hudson’s Bay Co (1998) 159 DLR (4th) 526 (BCSC in Chambers).............. 406 Kelly v Sullivan (1876) 1 SCR 3 (SCC)....................................................................... 362 Magrum v McDougall [1944] 3 WWR 486 (Alb SC AD)........................................... 365 Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) 2005 SCC 69, [2005] 3 SCR 388.................................................................................................. 331 Mitchell v MNR 2001 SCC 3, [2001] 1 SCR 911.................................................408, 412 Ontario (Attorney–General) v Bear Island Foundation (1989) 68 OR (2d) 394 (Ont CA).............................................................................................................. 389 Ontario (Attorney–General) v Bear Island Foundation (1991) 2 SCR 570 (SCC)........ 389 Osoyoos Indian Band v Oliver (Town) 1999 BCCA 297, (1999) 172 DLR (4th) 589.... 406 Paulette, Re (1973) 39 DLR (3d) 45 (NWTSC)........................................................... 379 Paulette, Re (1973) 42 DLR (3d) 8 (NWTSC)........................................ 378–80, 435, 452 Paulette, Re (1975) 63 DLR (3d) 1 (NWTCA)............................................................ 380 Paulette v R [1977] 2 SCR 628 (SCC).................................................... 380, 388–89, 399 Provincial Fisheries, Re (1896) 26 SCR 444 (SCC)..................................................... 361 R v Adams [1996] 3 SCR 101 (SCC)........................... 42, 338, 390, 397, 433–34, 441, 455 R v Bernard [2000] NBJ No 138, [2000] 3 CNLR 184 (NB Prov Ct)........................... 422 R v Bernard 2001 NBQB 82, (2001) 239 NBR (2d) 173.............................................. 422 R v Bernard 2003 NBCA 55, (2003) 262 NBR (2d) 1......................................414–15, 422 R v Bernard 2005 SCC 43, [2005] 2 SCR 220............................... 288, 314, 359, 393, 405, 410–21, 423–32, 438–41, 453–54 R v Côté [1996] 3 SCR 139 (SCC).............................................42, 338, 433–34, 441, 455 R v Gray 2006 SCC 54, [2006] 2 SCR 686.................................................................. 425 R v Marshall 2001 NSPC 2, [2001] 2 CNLR 256 (NS Prov Ct)................................... 421 R v Marshall 2002 NSSC 57, [2002] 3 CNLR 176...................................................... 421 R v Marshall 2003 NSCA 105, (2003) 218 NSR (2d) 78.......................... 322, 414–15, 421 R v Marshall 2005 SCC 43, [2005] 2 SCR 220.............................. 288, 314, 359, 393, 405, 410–21, 423–32, 438–41, 453–54 R v Morris 2006 SCC 59, [2006] 2 SCR 915............................................................... 359 R v Pamajewon [1996] 2 SCR 821 (SCC)................................................................... 314

xxiv  Table of Cases R v Powley 2003 SCC 43, [2003] 2 SCR 207.............................................................. 410 R v Ross [1986] 2 CNLR 142 (Sask Prov Ct)............................................................. 321 R v Sappier 2006 SCC 54, [2006] 2 SCR 686.............................................................. 425 R v Sikyea (1964) 43 DLR (2d) 150 (NWTCA), affd Sikyea v R [1964] SCR 642 (SCC)............................................................................................................. 369 R v Sparrow [1990] 1 SCR 1075 (SCC).......................................................372, 390, 392 R v Van der Peet [1996] 2 SCR 507 (SCC)............................... 290, 311, 314, 360, 390–92, 395–400, 404, 408–10, 419, 435, 437, 452 R v Watson (1828) 1 NBR 188 (NBSC)...................................................................... 262 R v White and Bob (1965) 50 DLR (2d) 613 (BCCA), affd (1966) 52 DLR (2d) 481 (SCC)............................................................................................................. 369 Roberts v Canada (1989) 35 BCLR (2d) 1.............. 387–89, 392, 394, 402–03, 434–36, 441 Roberts v Canada [1989] 2 CNLR 146.................. 387–89, 392, 394, 402–03, 434–36, 441 Roberts v Canada (1989) 57 DLR (4th) 197........... 387–89, 392, 394, 402–03, 434–36, 441 Roberts v Canada [1989] 1 SCR 322 (SCC)................................... 338, 387–89, 392, 394, 402–03, 434–36, 441, 452, 455 Roberts v Canada [1989] 3 WWR 117................... 387–89, 392, 394, 402–03, 434–36, 441 Scott v Scott (1970) 15 DLR (3d) 374 (NBSC).......................................................361–62 Sikyea v R [1964] SCR 642 (SCC). See R v Sikyea (1964) 43 DLR (2d) 150 (NWTCA) Société de développement de la Baie James c Kanatewat [1975] CA 166 (CA Que)..... 380 Stuart v Bowman (1851) 2 LCR 369 (Quebec SC)...................................................... 362 Toll v CPR (1908) 8 WLR 795 (CA).......................................................................... 365 Tsilhqot’in Nation v British Columbia 2007 BCSC 1700, [2008] 1 CNLR 112..........................................331–33, 393, 406, 414, 423–26, 428–30, 439–40, 453–54 Uniacke v Dickson (1848) 2 NSR 287 (SCNS)........................................................... 361 Wewaykum Indian Band v Canada 2002 SCC 79, [2002] 4 SCR 245....................385, 387 William v British Columbia (2004) BCSC 148........................................................... 408 William v British Columbia 2012 BCCA 285, [2012] 3 CNLR 333...................................................... 288, 331, 333, 426–28, 430, 440–41, 454 William v British Columbia 2013 (SCC Case No 34986)............................................ 426 Xeni Gwet’in First Nations v British Columbia [2009] 2 CNLR 385 (BCCA in Chambers)........................................................................................................... 333 Yonge v Blaikie (1822) 1 Nfld LR 277 (NfldSC)......................................................... 362 India Kally Dass Ahiri v Monmohini Dassee (1897) 12 Indian Decisions (NS) 961 (HC Cal).............................................................................................................. 176 International Court of Justice Advisory Opinion on Western Sahara [1975] 1 ICJR 12........................... 97–98, 106, 351



Table of Cases xxv

New Zealand Attorney–General v Ngati Apa [2003] 3 NZCA 117....................................................75 Mudgway v Davy (1886) 4 NZLR 192 (NZCA)........................................................ 262 Ninety–Mile Beach, Re [1963] NZLR 459 (NZCA)....................................................59 Nireaha Tamaki v Baker (1894) 12 NZLR 483 (NZCA)..............................................72 R v Symonds (1847) [1840–1932] NZPCC 387 (NZSC)............. 58–64, 66–67, 70, 73–75, 78, 88, 101, 110, 131, 152, 155, 249, 252–54, 271, 375, 378, 446 Reg v Macandrew (CA) .............................................................................................68 Tamihana Korokai v Secretary–General (1912) 32 NZLR 321 (NZCA)........................59 Te Runanga o Muriwhenua Inc v Attorney–General (1990) 2 NZLR 641 (NZCA)............................................................................................................... 110 Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72 (NZSC)............................................................................................ 59, 67–70, 72, 75 Nigeria Amodu Tijani v Secretary, Southern Provinces (1915) 3 NLR 24 (Div Ct)....................43 Amodu Tijani v Secretary, Southern Provinces (1918) 3 NLR 35 (NigSC)....................43 Oduntan v Attorney–General of Southern Nigeria (1912) 2 Nig LR 77 (NigSC)...........................................................................................................44, 373 Permanent Court of Arbitration Island of Palmas Case (United States v The Netherlands) (1928) 2 RIAA 829........98, 351 South Africa Alexkor Ltd v The Richtersveld Community [2003] ZACC 18, 2004 (5) SA 460.......................................................288–89, 334–36, 338, 343–53, 355, 359, 451 Du Plessis v De Klerk 1996 (3) SA 850 (CC).............................................................. 346 Eastern Rand Exploration Co v Nel [1903] TS 42 (Transvaal SC).............................. 117 Eloff, Ex P 1953 (1) SA 617 (T).................................................................................. 353 NZASM v Douglas Colliery [1905] TS 374 (Transvaal SC)........................................ 117 R v Erasmus [1923] AD 73 (SA)................................................................................ 338 R v Jiswa (1894) 11 SC 387 (Cape)............................................................................ 348 Richtersveld Community (case number 16466/97, Cape of Good Hope Provincial Division).............................................................................................................. 339 Richtersveld Community v Alexkor Ltd 2001 (3) SA 1293 (Land Claims Ct).............................................................................339, 346, 348, 352 Richtersveld Community v Alexkor Ltd [2003] ZASCA 14, 2003 (6) SA 104..... 336, 338–50 Union Government (Minister of Lands) v Estate Whittaker [1916] AD 194 (SA) 203..... 114

xxvi  Table of Cases

Straits Settlements Choa Choon Neoh v Spottiswoode (1869) 1 Ky 216 (HC Straits Settlements)............. 115 United Kingdom Abbot v Weekly (1664) 1 Lev 176, 83 ER 357 (KB)..............................................294, 297 Abeyesekera v Jayatilake [1932] AC 260 (PC)............................................................ 111 Abhiram Goswami v Shyama Charan Nandi (1909) LR 36 Ind App 148 (PC)............. 176 Acle (Manor of) (1306) YB 33–35 Edw I, RS p 309...............................................22, 308 Adams, Re (1837) 1 Moo 460, 12 ER 889 (PC)........................................................... 116 Advocate–General of Bengal v Ranee Surnomoye Dossee (1863) 2 Moo NS 22, 15 ER 811 (PC)..............................................................................................111, 115 Alcock v Cooke (1829) 5 Bing 340, 130 ER 1092 (CP)................................................ 128 Alfred F Beckett Ltd v Lyons [1967] Ch 449 (CA)...................................................... 304 Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 (PC)............................................................ 39, 42–45, 50–51, 75–77, 88, 101, 114–15, 217, 344, 373, 376, 378, 386, 388, 446 Angus v Dalton (1877) 3 QBD 85 (Div Ct) 103.......................................................... 296 Anonymous (1468) YB 8 Edw IV, RS p 18................................................................. 294 Attorney–General v Cain [1906] AC 542 (PC).............................................................40 Attorney–General v Corp of London (1850) 2 Mac & G 247, 42 ER 95 (Ch)............. 262 Attorney–General v De Keyser Royal Hotel Ltd [1920] AC 508 (HL)....................125–26 Attorney–General v Hallett (1847) 1 Ex 211 (Ex)...................................................... 262 Attorney–General v Lord Churchill (1841) 8 M & W 171, 151 ER 997 (Ex)............... 278 Attorney–General v Mathias (1858) 4 K & J 579, 70 ER 241 (V–C Ct)...................... 297 Attorney–General v Meller (1667) Hard 451, 145 ER 542 (Ex)................................... 262 Attorney–General v Parsons (1832) 2 C & J 279, 149 ER 120 (Ex).................................3 Attorney–General v Parsons (1836) 2 M & W 23, 150 ER 652 (Ex)............................ 262 Attorney–General v Wright [1897] 2 QB 318 (CA)............................................. 299–303 Attorney–General for British Columbia v Attorney–General for Canada [1914] AC 153 (PC)..................................................................................................199, 206 Attorney–General of Canada v Attorney–General of Ontario [1898] AC 700 (PC)..................................................................................................................... 204 Attorney–General for the Isle of Man v Mylchreest (1879) 4 App Cas 294 (PC)......... 125 Attorney–General for New South Wales v Love [1898] AC 679 (PC)............................25 Attorney–General for New South Wales v Williams [1915] AC 573 (PC).................... 282 Attorney–General of Ontario v Mercer (1883) 8 App Cas 767 (PC)..............................................................................................20, 41, 73, 162, 260 Attorney–General for Quebec v Attorney–General for Canada [1921] 1 AC 401 (PC) (Star Chrome case)................................39, 42, 45, 51, 217, 368–69, 400 Attorney–General of Southern Nigeria v John Holt & Company (Liverpool) Ltd [1915] AC 599 (PC).................................................................................................45 Bakare Ajakaiye v Lieutenant–Governor, Southern Provinces [1929] AC 679 (PC)........................................................................................................ 50, 114, 341



Table of Cases xxvii

Barker v Cocker (1620) Hob 329, 80 ER 471 (KB)..................................................... 297 Bastard v Smith (1837) 2 M & Rob 129, 174 ER 238 (Exeter)..................................... 296 Beaulieu v Finglam (1401) YB 2 Hen IV, RS p 18....................................................... 294 Blackett v Bradley (1862) 1 B & S 940, 121 ER 963 (KB)............................................ 297 Blades v Higgs (1865) 11 HLC 621, 11 ER 1474 (HL)...................................................24 Blankard v Galdy (1693) 2 Salk 411, 91 ER 356 (KB)............................................111–12 Blundell v Catterall (1821) 5 B & Ald 268, 106 ER 1190 (KB).................................... 295 Bristow v Cormican (1878) 3 App Cas 641 (HL).......................................24, 26, 156–57 British South Africa Co v Companhia de Moçambique [1893] AC 602 (HL).........211–12 Brocklebank v Thompson [1903] 2 Ch 344 (Ch D).............................................294, 302 Bryant v Foot (1867–68) LR 3 QB 497 (Ex Ch).......................................................... 296 Buck v Attorney–General [1965] Ch 745 (Ch)........................................................... 116 Burton (Abbot of) v Lancaster (Earl of) (1308–09) YB 2 & 3 Edw II, SS vol 19, p 59.................................................................................................................22, 308 Calvin’s Case (1609) 7 Co Rep 1a, 77 ER 377 (KB).................................................... 111 Cameron v Kyte (1835) 3 Kn 332, 12 ER 678 (PC)..................................................... 116 Campbell v Hall (1774) Lofft 655, 98 ER 848 (KB).............. 30, 99, 111–17, 249, 374, 404 Case of Alton Woods (1600) 1 Co Rep 40b, 76 ER 89 (KB)........................................ 128 Case of Carlisle (1647)............................................................................................. 254 Case 15–Anonymous (1722) 2 P Wms 75, 24 ER 646 (Ch)..................................... 29–30 Case of Mines (1568) 1 Plow 310, 75 ER 472 (Ex Ch)................................................ 283 Case of Tanistry (1608) Davis 28, 80 ER 516 (IrKB)............................... 86, 101, 112–13, 117–21, 290, 294, 296–297 Central Control Board (Liquor Traffic) v Cannon Brewery Co Ltd [1919] AC 744 (HL)....................................................................................................117–18 City of London v Vanacre (1699) 12 Mod 269, 88 ER 1314 (KB)................................ 298 Clayton v Corby (1843) 5 QB 415, 114 ER 1306........................................................ 297 Cocksedge v Fanshaw (1779) 1 Dougl 119, 99 ER 80 (KB)......................................... 302 Combes’ Case (1614) 9 Co Rep 75a, 77 ER 843 (KB)...................................................23 Commissioner of Public Works (Cape Colony) v Logan [1903] AC 355 (PC).............. 117 Commissioners of Sewers of the City of London v Glasse (1871–72) LR 7 Ch App 456 (CA Ch).................................................................................................. 304 Cook v Sprigg [1899] AC 572 (PC).....................................................................111, 116 Cooper v Stuart (1889) 14 App Cas 286 (PC)......................................29–30, 96, 103, 244 Coriton v Lithby (1670) 1 Vent 167, 86 ER 114 (KB).................................................. 297 Corporation of Yarmouth v Simmons (1878) 10 Ch D 518........................................ 182 Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 (PC)........................................ 149 Dalton v Angus & Co (1881) 6 App Cas 740 (HL)..................................................... 302 Dawson v Willoughby (Surveyor of Highways) (1864) 5 B & S 920, 122 ER 1073 (KB)................................................................................................. 295 Doe d Hayne v Redfern (1810) 12 East 96, 104 ER 39 (KB)........................................ 278 Doe d Watt v Morris (1835) 2 Bing (NC) 189, 132 ER 75 (CP)................................... 262 Dominion of Canada v Province of Ontario [1910] AC 637 (PC).............................. 369 Dovaston v Payne (1795) 2 H Bl 527, 126 ER 684 (CP)............................................... 293 Dowtie’s Case (1584) 3 Co R 9b, 76 ER 643 (Ex)....................................................... 258 Duke of Devonshire v Elgin (1851) 14 Beav 530, 51 ER 389 (Rolls Ct)........................ 299 Earl of Coventry v Willes (1863) 12 WR 127 (QB)..................................................... 295

xxviii  Table of Cases Eastern Archipelago Co v R (1853) 23 LJQB (NS) 82 (Ex Ch).................................... 128 Egerton v Harding [1974] 3 All ER 689 (CA)...............................................296, 299, 302 Elwood v Bullock (1844) 6 QB 383, 115 ER 147......................................................... 297 Emmerson v Maddision [1906] AC 569 (PC)............................................................. 262 Estwick’s Case (1613) 12 Co Rep 135, 77 ER 1410 (KB)...............................................22 Fairweather v St Marylebone Property Co Ltd [1963] AC 510 (HL)........................... 126 Falkland Islands Co v R (1863) 2 Moo (NS) 266, 15 ER 902 (PC)............................... 244 Finch’s Case (1591) 2 Leon 134, 74 ER 420 (Ex)......................................................... 262 Fitch v Rawling (1795) 2 H Bl 393, 126 ER 614 (CP).................................................. 297 Forbes v Cochrane (1824) 2 B & C 448, 107 ER 450 (KB)............................................96 Forbes v Ecclesiastical Commissioners for England (1872–73) LR 15 Eq 51 (Eq)........ 299 Foreman v Free Fishers and Dredgers of Whitstable (1869) 4 LR HL 266................... 199 Frank Warr & Co v London CC [1904] 1 KB 713 (CA).............................................. 299 Freeman v Fairlie (1828) 1 Moo IA 305, 18 ER 117 (Ch).......................................114–15 Friend v Duke of Richmond (1667) Hard 460, 145 ER 547 (Ex)................................. 262 Frogley v Earl of Lovelace (1859) John 333, 70 ER 450 (V–C Ct)............................... 299 Gann v Free Fishers of Whitstable (1865) 11 HL Cas 192, 11 ER 1305 (HL)............... 215 Gard v Callard (1817) 6 M & S 69, 105 ER 1169 (KB)............................................... 297 Gateward’s Case (1607) 6 Co Rep 59b, 77 ER 344 (KB).............................................. 304 Geary v Bearcroft (1666) Cart 57, 124 ER 822 (CP)................................................... 259 Gillford v Lord Yarborough (1828) 5 Bing 163, 130 ER 1023 (HL).............................. 295 Hall v Nottingham (1875–76) LR 1 Ex D 1 (Div Ct)...........................................294, 297 Hammerton v Honey (1876) 24 WR 603 (Ch)................................ 294, 296, 298–99, 323 Hill v Hanks (1614) 2 Bulst 201, 80 ER 1066 (KB)..................................................... 297 Hill and Bunning’s Case (1660) 1 Sid 17, 82 ER 943 (KB)........................................... 297 Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 (PC)................................................................................................................59, 116 Holliday, Re [1922] 2 Ch 698 (Ch D)..........................................................................22 Hunt v Burn (1701) 1 Salk 57, 90 ER 931 (KB)............................................................23 Hurst v Picture Theatres Ltd [1915] 1 KB 1 (CA)....................................................... 299 Inglewood Pulp & Paper Co Ltd v New Brunswick Electric Power Commission [1928] AC 492 (PC)............................................................................................... 163 Islington Market Bill, Re (1835) 3 Cl & F 513, 6 ER 1530 (HL).................................. 125 Iveagh v Martin [1961] 1 QB 232 (QB)........................................................... 22–23, 308 Jenkins v Harvey (1835) 1 CM & R 877, 149 ER 1336 (Ex)........................................ 296 Johnston v O’Neill [1911] AC 552 (HL)......................................................................26 Joseph v Ronald....................................................................................................... 114 Kielley v Carson (1843) 4 Moo 63, 13 ER 225 (PC).................................................... 112 King v Lydius (23 June 1763, apparently unreported)................................................ 254 Kinloch v Secretary of State for India in Council (1882) 7 App Cas 619 (HL)............. 385 Kodeeswaran v Attorney–General of Ceylon [1970] AC 1111 (PC)............................ 115 Lee v Norris (1594) Cro Eliz 331, 78 ER 580 (QB)..................................................... 278 Leigh v Hudson (1565) 2 Dy 238b, 73 ER 527 (Ex)...............................................261–62 Lockwood v Wood (1844) 6 QB 50, 115 ER 19 (Ex Ch)......................................297, 302 Lodelowe (Joan, widow of William de) and Laurence de Lodelowe and Robert (1337) YB 11 & 12 Edw III, RS p 159..........................................................................22, 308 Lord Bishop of Natal, Re (1864) 3 Moo NS 115, 16 ER 43 (PC)................................ 125



Table of Cases xxix

Lord Fitzhardinge v Purcell [1908] 2 Ch 139 (Ch D)............................................199, 215 Madzimbamuto v Lardner–Burke [1969] 1 AC 645 (PC)............................................ 114 Manning v Wasdale (1836) 5 Ad & E 758, 111 ER 1353 (KB)..................................... 293 Mayor of Exeter v Warren (1844) 5 QB 773, 114 ER 1441 (QB)................................. 125 Melwich v Luter (1588) 4 Co Rep 26a, 76 ER 835 (KB)................................................24 Mercer v Denne [1904] 2 Ch 534 (Ch D), affd [1905] 2 Ch 538 (CA)...... 293–97, 299, 302 Mercer v Moore (1880) 14 Ch D 287......................................................................... 175 Merttens v Hill [1901] 1 Ch 842 (Ch D)......................................................... 23, 308–09 Morris v Pugh (1761) 3 Burr 1241, 97 ER 811 (KB).................................................... 155 Mostyn v Fabrigas (1774) 1 Cowp 161, 98 ER 1021 (KB)......................................90, 266 Mounsey v Ismay (1865) 3 H & Co 486, 159 ER 621 (Ex).....................................293–94 Nakkuda Ali v Jayaratne [1951] AC 66 (PC).............................................................. 115 Needler v Bishop of Winchester (1614) Hob 220, 80 ER 367 (CP).........................90, 266 New Windsor Corp v Mellor [1975] Ch 380 (CA Civ).................... 293, 295, 297–99, 302 Nichols v Nichols (1677) 2 Plow 477, 75 ER 711 (KB)................................................ 125 Nireaha Tamaki v Baker [1901] AC 561 (PC)....................................... 51, 60, 67, 70–72, 74–76, 78, 155, 375–76, 446 Ontario Mining Co Ltd v Seybold [1903] AC 73 (PC)................................................ 369 Oxfordshire CC v Oxford City Council [2005] EWCA Civ 175, [2006] Ch 43 (CA).... 295 Oyekan and Others v Adele [1957] 2 All ER 785 (PC)..............................42, 99, 101–02, 108, 115, 117, 122 Page’s Case (1587) 5 Co R 52a, 77 ER 133 (Ex).......................................................... 256 Payne v Ecclesiastical Commissioners (1913) 30 TLR 167.......................................... 297 Penn v Lord Baltimore (1750) 1 Ves Sen 444, 27 ER 1132 (Ch).................................... 153 Perry v Clissold [1907] AC 73 (PC)............................................................................ 126 Phillips v Eyre (1870) LR 6 QB 1 (Ex)....................................................................... 112 Post Office v Estuary Radio Ltd [1968] 2 QB 740 (CA).........................................97, 348 Potter v North.......................................................................................................... 302 Proclamations Case (1611) 12 Co Rep 74, 77 ER 1352 (KB)....................................... 125 R v Bishop of Winton (1604) Cro Jac 53, 79 ER 45 (CP)............................................ 278 R v Champion (1606) Cro Jac 123, 79 ER 107 (KB)................................................... 278 R v Earl of Crewe, ex p Sekgome [1910] 2 KB 576 (CA)............................................ 111 R v Ecclesfield (Inhabitants) (1818) 1 B & Ald 348, 106 ER 128 (KB)......................... 295 R v Inhabitants of the Township of Ardsley (1878) 3 QBD 255................................. 295 R v Joliffe (1823) 2 B & C 54, 107 ER 303 (KB)......................................................... 296 R v Keyn (1876) 2 Ex D 63 (PC).............................................. 199, 201, 203, 205, 211–13 R v Hughes (1866) LR 1 PC 81 (PC).......................................................................... 128 R v Lord Yarborough (1828) 2 Bli (NS) 147, 4 ER 1087 (HL)..................................... 249 R v Rollett (1875) LR 10 QB 469............................................................................... 295 R v Secretary of State for Foreign and Commonwealth Affairs, ex p Indian Association of Alberta [1982] QB 892 (CA)........................................................... 295 R v Suffolk CC, ex p Steed (1998) 75 P & CR 102 (CA)......................................294, 299 Race v Ward (1855) 4 El & Bl 702, 119 ER 259 (KB).............................. 293–94, 297, 304 Reynel’s Case (1612) 9 Co R 95a, 77 ER 871 (Ch)...................................................... 258 Rogers v Brenton (1847) 10 QB 26, 116 ER 10........................................................... 297 Rogers v Taylor (1857) 1 H & N 706, 156 ER 1385 (Ex)............................................. 297 Rowles v Mason (1612) 2 Brownl & Golds 192, 123 ER 892 (CP).............................. 299

xxx  Table of Cases Ruding v Smith (1821) 2 Hag Con 371, 161 ER 774 (Con Ct).........................113, 115–16 Sadlers’ Case (1588) 4 Co R 54b, 76 ER 1012 (Ch).........................................156, 257–58 St Catherine’s Milling and Lumber Co v R (1888) 14 App Cas 46 (PC)...................................................................... 39–42, 45, 51, 76, 217, 368–71, 446 Sakariyawo Oshodi v Moriamo Dakolo [1930] AC 667 (PC)..................................... 114 Sammut v Strickland [1938] AC 678 (PC).............................................. 106, 111–13, 116 Scales v Key (1840) 11 Ad & E 819, 113 ER 625 (KB)................................................ 298 Secretary of State for India v Bai Rajbai (1915) LR 42 IA 229 (PC)............................ 116 Secretary of State for India v Chelikani Rama Rao (1916) 43 LR Ind App 192 (PC).......................................................................................................199–200, 252 Segrave (Nicholas de) (1294) YB 21 & 22 Edw I, RS p 631...........................................27 Simpson v Bithwood (1691) 3 Lev 307, 83 ER 703 (KB)............................................. 297 Simpson v Wells (1871–72) LR 7 QB 214 (QBD)........................................................ 296 Sir Oliver Butler’s Case (1681) 2 Ventr 344, 86 ER 477 (Ch), affd (1685) 3 Lev 220, 83 ER 659 (HL).................................................................................... 128 Sobhuza II v Miller [1926] AC 518 (PC)................................................................ 43, 50 Southern Rhodesia, Re [1919] AC 211 (PC)....................39, 46–48, 50–51, 57, 64, 67, 73, 75–76, 78, 101–02, 106, 155, 254, 321, 341, 376, 378, 405, 415, 446 Star Chrome case. See Attorney–General for Quebec v Attorney–General for Canada Strathblaine Estates Ltd, Re [1948] Ch 228 (Ch D).................................................... 175 Sunmonu v Disu Raphael [1927] AC 881 (PC)........................................................... 114 Sutton v Moody (1697) 1 Ld Raym 250, 91 ER 1063 (KB)............................................24 Taylor v Scott (1729) Fitz–G 55, 94 ER 651 (KB)....................................................... 297 Taylor d Atkyns v Horde (1757) 1 Burr 60, 97 ER 190 (KB)....................................... 259 Terrell v Secretary of State for Colonies [1953] 2 All ER 490 (QB)............................. 115 Tito v Waddell (No 2) [1977] Ch 106 (Ch D)............................................................. 385 Twimahene Adjeibi Kojo II v Opanin Kwadwo Bonsie [1957] 1 WLR 1223 (PC)........ 114 Tyson v Smith (1838) 9 Ad & E 406, 112 ER 1265 (Ex Ch)............................294, 296–97 Vajesingji Joravarsingji v Secretary of State for India (1924) LR 51 Ind App 357 (PC).......................................................................................................101, 111, 116 Veley v Burder (1841) 12 Ad & E 265, 113 ER 813 (Ex Ch)........................................ 295 Viscountess Rhondda’s Claim [1922] 2 AC 339 (HL)................................................. 126 Wakefield v Duke of Buccleuch (1869–70) LR 4 HL 377 (HL).................................... 297 Warrick v Queen’s College, Oxford (1870) LR 10 Eq 105 (Eq); affd (1870–71) LR 6 Ch App 716 (CA Ch).................................................................................... 299 Western Counties Railway Co v Windsor and Annapolis Railway Co (1882) 7 App Cas 178 (PC) 188........................................................................................ 117 Wilcox v Wilcox (1857) 8 LC Rep 34 (QB)................................................................. 362 Wilkes v Broadbent (1745) 2 Stra 1224, 93 ER 1146 (KB)........................................... 297 Willion v Berkley (1561) 1 Plow 223, 75 ER 339 (CP)................................................. 258 Winfat Enterprise (HK) Co Ltd v Attorney–General of Hong Kong [1985] AC 733 (PC)......................................................................................................... 116 Witrong v Blany (1674) 3 Keb 401, 84 ER 789 (KB)....................................... 86, 101, 113 Wolstanton Ltd v Newcastle–under–Lyme Corp [1940] AC 860 (HL)........................ 297 Wood v Leadbitter (1845) 13 M & W 838, 153 ER 351 (Ex)....................................... 299



Table of Cases xxxi

Wyld v Silver [1963] Ch 243 (CA)............................................................................. 298 Yeap Cheah Neo v Ong Cheng Neo (1874–75) LR 6 PC 381 (PC).............................. 115 United States of America Cherokee Nation v Georgia 30 US 1 (1831) (USSC)...................................51, 55–56, 446 Fletcher v Peck 10 US 87 (1810) (USSC)............................................................ 51, 55, 64 Gila River Pima–Maricopa Indian Community v United States 494 F 2d 1386 (1974) (US Ct Cl).................................................................................................. 271 Johnson v M’Intosh 21 US 543 (1823) (USSC)...............51–58, 61, 78, 106, 110, 152, 155, 253–54, 271, 371–72, 374, 381, 385–87, 392, 446 Mitchel v United States 34 US 711 (1835) (USSC).................................................26, 247 R v Sparrow [1990] 1 SCR 1075 (USSC).................................................................... 271 Sac and Fox Tribe of Indians of Oklahoma v United States 383 F 2d 991 (1967) (CtCl)....................................................................................................................58 Tee–Hit–Ton Indians v United States 348 US 272 (1954) (USSC)................................ 110 United States v Santa Fe Pacific Railroad Co 314 US 339 (1941) (USSC)..................... 321 Worcester v Georgia 31 US 515 (1832) (USSC)........................51, 54–56, 58, 78, 152, 155, 271, 306, 371–72, 374, 378, 381, 383, 385–86, 446

Table of Legislation Australia Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)...............................33, 250 Act No 110 of 1993.................................................................................................. 197 Acts Interpretation Act 1901 (Cth)   s 13(3).................................................................................................................. 187 Coast Islands Act 1879 (Qld)......................................................................................83 Coast Island Declaration Act 1985 (Qld).................................................................. 268 Coast Islands Proclamation 1879 (Qld).......................................................................83 Coastal Waters (Northern Territory Title) Act 1980 (Cth)   s 4........................................................................................................................ 218   s 4(1).................................................................................................................... 218 Commonwealth of Australia Constitution Act 1901 (Cth)   s 72...................................................................................................................... 135 Conservation and Land Management Act 1984 (WA)   s11....................................................................................................................... 279 Constitution   s 51(xxxi)...............................................................................................118, 162, 201 Constitution Act 1850 (SA)   s 14...................................................................................................................... 281 Constitution Act 1855 (NSW)...........................................................................280, 282   s 43...................................................................................................................... 282   s 58...................................................................................................................... 282 Constitution Act 1855 (Tas)..................................................................................... 280 Constitution Act 1855 (Vic)...................................................................................... 280 Constitution Act 1856 (SA)...................................................................................... 280 Constitution Act 1867 (Qld)..................................................................................... 280   s 2........................................................................................................................ 281   s 30...................................................................................................................... 282   s 40...................................................................................................................... 282 Constitution Act 1889 (WA)..................................................................................... 280   s 2(1).................................................................................................................... 281 Constitution Act 1902 (NSW).................................................................................. 280   s 5........................................................................................................................ 281   s 8........................................................................................................................ 282 Constitution Act 1934 (SA)...................................................................................... 280 Constitution Act 1934 (Tas)..................................................................................... 280 Constitution Act 1975 (Vic)...................................................................................... 280   s 16...................................................................................................................... 281 Crown Land Management Act 2009 (SA).................................................................. 265

xxxiv  Table of Legislation Crown Lands Act 1884 (Qld)   s 4.................................................................................................................265, 270   s 4(2)(b)–(d)......................................................................................................... 250   s 124.................................................................................................................... 274 Crown Lands Act 1976 (Tas)......................................................................................65 Crown Lands Act 1989 (NSW)................................................................................. 265 Crown Lands Act 1992 (NT)........................................................................250–51, 265   s 4........................................................................................................................ 250   s 4(1)–(2).............................................................................................................. 250   s 4(2)(a)............................................................................................................... 250 Crown Lands Acts................................................................................................... 341 Crown Lands Alienation Act 1868 (Qld)   s 2........................................................................................................................ 265 Crown Lands Alienation Act 1876 (Qld)................................................................... 270   s 1........................................................................................................................ 265   s 91.................................................................................................................274–75 Crown Lands Consolidation Act 1913 (NSW)........................................................... 176 Crown Lands (Shack Sites) Act 1997 (Tas)................................................................ 265 Fisheries Act 1877 (Qld)........................................................................................... 229 Fisheries Act 1952 (Cth)........................................................................................... 229 Fisheries Act 1988 (NT)........................................................................................... 223 Governor Gipps’ Act. See New South Wales Act of 1840 Imperial Acts Application Act 1969 (NSW)   s 36........................................................................................................................27 Imperial Acts Application Act 1980 (Vic)   s 5..........................................................................................................................27 Imperial Law Re–Enactment Act 1990 (Vic)................................................................27 Interpretation Act 1915 (SA)   s 48........................................................................................................................31 Interpretation Act 1918 (WA)    s 43.......................................................................................................................31 Land Act (WA)........................................................................................................ 284 Land Act 1897 (Qld)   s 4.................................................................................................................265, 270   s 236.................................................................................................................... 274 Land Act 1898 (WA).........................................................................................270, 279 Land Act 1910 (Qld).....................................84, 168–69, 172, 202, 265, 270, 275, 278–79   s 4..........................................................................................................169, 265, 270   s 4(a)–(c).............................................................................................................. 270   s 6........................................................................................................................ 169   s 6(2).................................................................................................................... 169   s 135...............................................................................................................168–69   s 203...............................................................................................................274–77   s 204...............................................................................................................275–78 Land Act 1933 (WA)..................................................................................267, 270, 279   s 29...................................................................................................................... 269   s 33...................................................................................................................... 269



Table of Legislation xxxv

  s 109...............................................................................................................267–68   s 164........................................................................................................273, 276–77 Land Act 1962 (Qld)..................................................................... 172, 265, 270, 274–75   s 5.................................................................................................................265, 270   s 372(1)................................................................................................................ 274   s 373(1)................................................................................................................ 275 Land Act 1994 (Qld)..................................................................................265, 270, 279   Sch 6.............................................................................................................265, 270 Land Acts.........................................................................................................205, 207 Land Acts (Qld)..................................................................................176, 196, 208, 284 Land Administration Act 1997 (WA)........................................................................ 265 Land Drainage Act 1925 (WA)   s 6........................................................................................................................ 279 Land Regulations 1887 (WA).................................................................................... 279 Land Rights Act....................................................................................................... 223 Land Titles Act 1925 (ACT)..................................................................................... 265 Land Titles Validation Act 1993 (Vic)....................................................................... 138 Lands Acquisition Act 1906 (Cth)............................................................................. 268 Lands Acquisition Act 1989 (Cth)............................................................................. 265 Limitation Act (NT)...........................................................................................250–51   s 6(4)...............................................................................................................250–51 Mineral Resources Act 1989 (Qld)............................................................................ 265 Mining Act 1898 (Qld)   s 3........................................................................................................................ 279 Mining Act 1904 (WA)............................................................................................. 248   s 3........................................................................................................................ 279   s 117 ................................................................................................................... 248 Mining Act 1968 (Qld)   s 7........................................................................................................................ 279 Mining Act 1978 (WA)   s 8........................................................................................................................ 279 Mining Act 1992 (NSW)   s 379 ................................................................................................................... 283 Native Title Act 1993........................ 59, 135, 138–39, 148–49, 165, 177, 183–84, 186–87, 189–93, 195, 197, 203, 205, 211, 220, 224–26, 246, 268, 288, 442   Preamble.......................................................................................................138, 332     para 17............................................................................................................. 332    Pt 2, Div 2............................................................................................................ 191    Pt 2, Div 2A......................................................................................................... 191    Pt 2, Div 2AA....................................................................................................... 191    Pt 2, Div 2B.....................................................................................................191–92    Pt 2, Div 3............................................................................................................ 191   Pts 3–4................................................................................................................. 246   s 6........................................................................................................................ 225   s 8........................................................................................................................ 138   s 11...................................................................................................................... 191   s 13(3)(a).............................................................................................................. 246

xxxvi  Table of Legislation   s 15(1)(c).............................................................................................................. 192   s 22B(c)................................................................................................................ 192   s 23A............................................................................................................187, 192   s 23A(1)............................................................................................................... 191   s 23A(3)............................................................................................................... 191   s 23B(9C).................................................................................................191–92, 276   s 23DA..........................................................................................................192, 276   s 23F(2)(c)............................................................................................................ 192   s 23G.......................................................................................................187, 191–92   s 23G(1)(b)(i)....................................................................................................... 192   s 23G(1)(b)(ii).................................................................................................191–92   s 23I..................................................................................................................... 192   s 211.................................................................................................................... 230   s 223.............................................................................................................138, 290   s 223(1)............................................................................................ 203–04, 228, 232   s 223(1)(c)............................................................................................................ 203   s 225.............................................................................................................214, 246   s 233(3)................................................................................................................ 191   s 238.................................................................................................................... 191   s 247B.................................................................................................................. 192   s 248B.................................................................................................................. 192   s 253.................................................................................................................... 191 New South Wales Act of 1840 (Governor Gipps’ Act).................................................69 Northern Territory Trespass Act   s 7(1).................................................................................................................... 250 Offshore Minerals Act 1994 (Cth)............................................................................ 205 Pastoral Land Management and Conservation Act 1989 (SA).................................... 265 Pastoral Leases Act 1869 (Qld)   s 3........................................................................................................................ 270   s 72...................................................................................................................... 274 Petroleum Act 1923 (Qld)   s 3........................................................................................................................ 279 Petroleum Act 1936 (WA)......................................................................................... 248   s 4........................................................................................................................ 279   s 9........................................................................................................................ 248 Petroleum Act 1967 (WA)    s 5....................................................................................................................... 279 Petroleum (Submerged Lands) Act 1967 (Cth)....................196, 201–02, 205, 207–08, 248 Planning and Development Act 2007 (ACT).............................................................. 265 Property Law Act 1958 (Vic)   s 18A.....................................................................................................................27 Property Law Act 1974 (Qld)   s 20...................................................................................................................... 138   s 20(1).............................................................................................................270–71   s 21.................................................................................................... 27, 138, 270–71 Public Works Act 1902 (WA)...............................................................................267–68   s 10...................................................................................................................... 267



Table of Legislation xxxvii

  s 18.................................................................................................................267–68 Racial Discrimination Act 1975 (Cth)....................................................................... 127 Real Property Act 1900 No 25 (NSW)   s 45D(1).................................................................................................................25 Rights in Water Irrigation Act 1914 (WA)................................................................. 267   s 3...................................................................................................................267–68   s 62...................................................................................................................... 267 Rural Lands Protection Act 1998 (NSW)................................................................... 265 Seas and Submerged Lands Act 1973 (Cth)........................................... 200, 205, 224–25   s 6.................................................................................................................209, 227   s 10A..............................................................................................................225–27   s 11......................................................................................... 200, 203, 209, 227, 233   Sch....................................................................................................................... 224 State and Territory Aboriginal Land Rights Acts...................................................... 311 State and Territory Crown Lands Acts...................................................................... 178 Sydney Harbour Trust Act 1900 (NSW)   s 27...................................................................................................................... 273 Torres Strait Fisheries Act 1984 (Cth)....................................................................... 229 Torres Strait Fisheries Acts 1984 (Qld)...................................................................... 229 Transfer of Land Act 1958 (Vic)............................................................................... 265 Trespass Act (NT).................................................................................................... 250   s 7(1).................................................................................................................... 250 Unoccupied Crown Lands Occupation Act 1860 (Qld)   s 29...................................................................................................................... 274 Western Lands Act 1901 No 70 (NSW)..................................................................... 265 Wildlife Conservation Act 1950 (WA)   s 6........................................................................................................................ 279 Canada Act respecting the Application of certain Laws to the Province of Manitoba 1888    s 1 ...................................................................................................................... 365 Act further to amend the law respecting the North–West Territories 1886. See North–west Territories Act Amendment Act 1886 Act of Union 1840.................................................................................................... 363 Alberta Act 1905...................................................................................................... 365 British Columbia Terms of Union 1871.................................................................... 361 Civil Code of Lower Canada 1866............................................................................ 363 Civil Code of Quebec 1980....................................................................................... 363 Constitution Act 1867.......................................................................................361, 363   s 91(24)...........................................................................................................359–60   s 92(13)................................................................................................................ 363   s 101.............................................................................................................387, 434   s 109.............................................................................................................400, 406 Constitution Act 1982.......................................................................................359, 409   s 35........................................................................................................382, 385, 429

xxxviii  Table of Legislation   s 35(1)....................................................................................... 314, 359, 399, 433–34   s 53(2)...........................................................................................................363, 409 Constitutional Act 1791 (originally The Clergy Endowments (Canada) Act 1791)............................................................................................................. 363 Court of Queen’s Bench Act..................................................................................... 364    s 33(1)................................................................................................................. 364 Dominion Lands Act 1872........................................................................................ 365 English Law Ordinance, BC 1867............................................................................. 361 Federal Court Act.........................................................................................................   s 17(3)(c).............................................................................................................. 387 Hudson’s Bay Company Deed of Transfer 1869........................................................ 364 Indian Act 1876.........................................................................................365, 385, 387   s 18(1).................................................................................................................. 388   s 88...................................................................................................................... 359 Land Titles Act 1970...........................................................................................378–80 Manitoba Act 1870.................................................................................................. 364 Manitoba Boundaries Extension Act 1881................................................................ 365 Manitoba Boundaries Extension Act 1912................................................................ 365 Manitoba Boundaries Extension Act 1930................................................................ 365 Manitoba Supplementary Provisions Act RSC 1927.................................................. 365 North–west Territories Act Amendment Act 1886 (originally Act further to amend the law respecting the North–West Territories 1886)............................................. 365 Northwest Territories Act 1906................................................................................ 364 Nunavut Act SC 1993   s 29...................................................................................................................... 365 Nunavut Land Claims Agreement 1993.................................................................... 365 Ordinance on the laws affecting Crown lands in British Columbia 1870.................... 376 Public Lands Act...................................................................................................... 389 Public Lands Grants Act.......................................................................................... 382 Saskatchewan Act 1905............................................................................................ 365 Territorial Lands Act............................................................................................... 382   s 4........................................................................................................................ 382 Territories Real Property Act 1886............................................................................ 365 The Clergy Endowments (Canada) Act 1791. See Constitutional Act 1791 Yukon Territory Act 1898......................................................................................... 365 Ceylon Courts Ordinance   s 42...................................................................................................................... 115 New Zealand Foreshore and Seabed Act 2004...................................................................................75 Native Rights Act 1865......................................................................................... 68, 70



Table of Legislation xxxix

Land Claims Ordinance 1841.....................................................................60, 65, 69, 71   s 2............................................................................................................... 59, 71–72

Nigeria Ikoyi Lands Ordinance No 16 of 1908 of Southern Nigeria (subsequently cap 91 of the Laws of Nigeria 1923)..................................................................................... 114   s 2........................................................................................................................ 114   s 5........................................................................................................................ 114   s 7........................................................................................................................ 114

South Africa Annexation Proclamation 1847.....................................................................348, 351–52 Articles of Capitulation of the Cape Colony 1806..............................................336, 348 Bill of Rights........................................................................................................... 345 Constitution of the Republic of South Africa 1996........................................343–46, 349   s 25(7)...........................................................................................................344, 346   s 39(2).............................................................................................................345–46   s 39(3)....................................................................................................288, 335, 345 Interim Constitution of the Republic of South Africa Act 200 of 1993....................... 344   s 121(2)................................................................................................................ 344 Native Administration Act 1927............................................................................... 335 Native Land Act Number 27 of 1913........................................................................ 344 Ordinance 50 of 1828............................................................................................... 347 Precious Stones Act 1927...................................................................................339, 350 Restitution of Land Rights Act 22 of 1994.......................... 335–36, 339–41, 343, 346–47   s 1.................................................................................................................339, 346   s 1(a)–(b)............................................................................................................. 339   s 2(1).................................................................................................................... 339   s 2(1)(d)–(e)......................................................................................................... 339

United Kingdom Act for protecting the Crown Lands of this Colony from Encroachment Intrusion and Trespass............................................................................................................... 154 Act to provide, until the Thirty–first Day of December One Thousand Eight Hundred and Thirty–Four, for the Government of His Majesty’s Settlements in Western Australia, on the Western Coast of New Holland 1829.....................................153–54 Act to remove doubts concerning the Validity of certain Grants of Land in New South Wales......................................................................................................... 154 Act to remove doubts concerning the validity of Grants of Land in New South Wales................................................................................................................... 154

xl  Table of Legislation Administration of Estates Act 1925   Sch 2......................................................................................................................27 Assize of Clarendon 1166...........................................................................................28 Australian Agricultural Company’s Act 1824.......................................................153–54 Australian Constitutions Act (No 1) 1842............................................................281–82   s 29...................................................................................................................... 281 Australian Constitutions Act (No 2) 1850............................................................281–82   s 14.................................................................................................................281–82 Australian Courts Act 1828.................................................................................. 30–31   s 24........................................................................................................................30 Australian Waste Lands Act 1855...............................................................................64   s 1..........................................................................................................................64   s 4..........................................................................................................................64 Belcher’s Proclamation of 1762................................................................................. 410 British Columbia Terms of Union 1871.................................................................... 361 British North America Act 1867 (now Constitution Act 1867)...................41–42, 361–63   s 91(24)..................................................................................................................41   s 109......................................................................................................................41   s 146.................................................................................................................... 364 British North America (Quebec) Act 1774. See Quebec Act Common Law Procedure Act 1852............................................................................ 278 Commons Registration Act 1965.............................................................................. 298 Constitution Act 1867. See British North America Act 1867 Crown Proceedings Act 1947.................................................................................... 264 Crown Suits (Nullum Tempus) Act 1769.....................................................................25 Imperial Statute 11 Vic c 61...................................................................................... 153 Imperial Statute 31 Geo 3 c 2.................................................................................... 362 Imperial Statute 32 Geo 3 c 1.................................................................................... 363 Land Act 1892...........................................................................................................71 Land Acts..................................................................................................... 70, 170–71 Land Registration Act 1925   s 75........................................................................................................................25 Land Registration Act 2002   Pt 9........................................................................................................................25   Sch 6......................................................................................................................25 Laws of King AEthelred.............................................................................................13 Laws of King Alfred...................................................................................................12 Laws of King Cnut.....................................................................................................13 Laws of King Edward ..................................................................................... 10–11, 14 Letter of Instructions of 31 July 1858....................................................................... 374 Letters Patent dated 10 October 1878.........................................................................83 Limitation Act 1980   s 17........................................................................................................................25 Magna Carta 1215.................................................... 125, 204, 215–16, 219–20, 222, 291   Ch 29................................................................................................................... 254 Native Land Act 1873.................................................................................................71 Native Land Act 1877........................................................................................... 71–72



Table of Legislation xli

Native Lands Act 1865...............................................................................................71 Native Rights Act 1865...............................................................................................71 New South Wales Constitution Act 1855...........................................................280, 282   Preamble.............................................................................................................. 282    s 2 282 New Zealand Constitution Act 1852..........................................................................71 Order–in–Council empowering the Governor of Queensland to Make Laws of 6 June 1859..................................................................................................................... 280 Order in Council of 16 June 1914 for hearing and consideration under 3 & 4 Will 4 c 41, s 4....................................................................................................................46 Order of Her Majesty in Council admitting Prince Edward Island into the Union 1873. See Prince Edward Island Terms of Union 1873 Order of Her Majesty in Council admitting Rupert’s Land and the North–Western Territory into the Union, 23 June 1870.................................................................. 364 Prescription Act   s 2........................................................................................................................ 293 Prince Edward Island Terms of Union 1873 (originally Order of Her Majesty in Council admitting Prince Edward Island into the Union 1873)............................... 362   s 129.................................................................................................................... 362 Proclamation of 23 September 1799.......................................................................... 115 Public Lands Ordinance 1903............................................................................... 43, 45 Public Lands Acquisition Ordinance 1923................................................................. 114 Quebec Act (originally The British North America (Quebec) Act 1774)................362–64 Queen’s Remembrancer Act 1859   s 25...................................................................................................................... 264 Real Property Limitation Act 1833.............................................................................25 Royal Charter of 2 May 1670 granting Rupert’s Land to the Hudson’s Bay Company......................................................................................................380, 384 Royal Charter of 1840.......................................................................................... 61, 68 Royal Proclamation of 1763...........................................40–42, 54–55, 76, 111, 311, 362, 367–71, 378, 380, 385–86, 388–89, 410, 433 Rupert’s Land Act 1868............................................................................................ 364 Sale of Waste Lands Act 1842..........................................................64, 153, 280–81, 376 Sale of Waste Lands Act 1846............................................................................122, 153   s 9...................................................................................................................280–81   s 17...................................................................................................................... 154   s 23...................................................................................................................... 280 Statute 7 & 8 Will 3 c 22   s 16.................................................................................................................153–54 Statute Law (Repeals) Act 1969    s 1, Sch, Pt III.........................................................................................................27 Statute of Marlborough 1267.....................................................................................27 Statute of Quia Emptores 1290...................................................................................27   s 2..........................................................................................................................27 Statute of Westminster 1275..................................................................................... 296 Tenures Abolition Act 1660.................................................................................. vii, 27   s 7..........................................................................................................................27

xlii  Table of Legislation Victoria Constitution Act 1855................................................................................. 280 Western Australia Constitution Act 1890.................................................................. 280 United States of America Georgia Licensing Act................................................................................................56

Table of Conventions and Treaties Australia Nisga’a Treaty......................................................................................................... 314 Robinson–Huron Treaty of 1850.............................................................................. 389 Torres Strait Treaty. See Treaty concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, and Related Matters, Australia–Papua New Guinea 1978 Treaty of 1873............................................................................................... 40–41, 368 Treaty 3 of 1873....................................................................................................... 368 Treaty No 8............................................................................................................. 379 Treaty No 11............................................................................................................ 379 Treaty of Mellifont 1603.......................................................................................... 118 Treaty of Paris 1763........................................................................40, 362, 368–69, 371 Treaty concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, and Related Matters, Australia–Papua New Guinea 1978 (Torres Strait Treaty)..........................224, 229–30   Art 3.................................................................................................................... 224 Treaty of Utrecht 1713........................................................................................361–62 Treaty of Waitangi 1840..................................................................... 59–60, 70–71, 288   Art 2......................................................................................................................72 UN Convention on the Law of the Sea 1982 (UNCLOS).......................................224–25   Pt V..................................................................................................................... 226   Art 33.................................................................................................................. 224   Art 56.............................................................................................................225–26   Art 56(1)(a).....................................................................................................225–26   Art 56(3).............................................................................................................. 226   Art 77.............................................................................................................226–27   Art 77(1)–(2)...................................................................................................226–27

Introduction It is incorrect to say that the judiciary protected property; rather they called that property to which they accorded protection.1

U

NTIL THE HIGH Court’s decision in Mabo v Queensland (No 2),2 the universal acceptance and application of the English doctrine of tenure in Australia led to the view that all titles, rights and interests in land had to be the direct consequence of some grant from the Crown. In Mabo, however, six justices of the High Court agreed that the common law, as it had been previously understood, should be changed to recognise native title rights to land; rights which do not derive from Crown grant. The common law device adopted by the High Court to effect this change, and thereby reconcile the doctrine of tenure and native title when the Crown acquired sovereignty of Australia, was ‘radical title’.3 From a property rights perspective, therefore, the importance of the decision in Mabo is that rights in land which are not derived from the doctrine of tenure were, for the first time in Australia’s legal history, recognised by the common law. Accordingly, the two-fold legal fiction accompanying the English doctrine of tenure, that all land was originally owned and granted by the Crown, was undermined. Although this meant that the basic assumption that had guided all Australian real property law since colonisation was abandoned, the only legal consequence of the Crown’s acquisition of radical title which was authoritatively determined by the High Court was that it enabled native title to be accommodated within Australian land law. Native title is not, however, a common law tenure or an institution of the common law.4 This is crucial: according to the Australian High Court, the unique status of native title in terms of its vulnerability to extinguishment by Crown appropriation and grant flows from its non-common law classification.5 Nevertheless, since the decision in Mabo, discussion has focused on the meaning of native title and the practical implications of its judicial recognition. The finding, by six members of the Australian High Court, that upon acquisition of sovereignty the Crown acquired only a radical title to all land, rather than absolute beneficial title, has been largely ignored. More important, therefore, is the need to examine the potential legal consequences, beyond recognition of (non-common law) native title, ensuing from the

1   F Cohen, ‘Dialogue on Private Property’ (1954) 9 Rutgers Law Review 357, 380 quoting W Hamilton and I Till, ‘Property’, Encyclopaedia of the Social Sciences XII (1934) 528, 536. 2   Mabo v Queensland (No 2) (1992) 175 CLR 1 (HCA). 3  See Commonwealth v Yarmirr [2001] HCA 56, (2001) 208 CLR 1 [212] (McHugh J). 4   Fejo v Northern Territory [1998] HCA 58, (1998) 195 CLR 96 [46] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) citing Brennan J in Mabo (n 2) 59–61. See also Yarmirr (n 3) [11] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 5   Mabo (n 2) 63–64, 69–70 (Brennan J); Fejo (n 4) [44] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) quoting Brennan CJ in Wik Peoples v Queensland (1996) 187 CLR 1 (HCA) 84.

2  Introduction fact that the legal nature of the Crown’s title to land, as previously understood, was changed. Accordingly, it is the purpose of this book to explain and analyse the common law consequences of the Crown’s radical title for Aboriginal land rights in Australia and other former British colonies. It will be seen that as a result of the Australian High Court’s retrospective examination of the effect of the colonisation of Australia and reception of English law, ‘Aboriginal customary law’ can be a valid source of common law title to land and thus an alternative to native title.6 Moreover, the conclusion that Aboriginal customary law can be a source of common law title to land is not limited to Australia; it applies to former British colonies whether they were acquired by settlement or by conquest or cession from another colonising power. The book is divided into four parts. Part I (chapters one and two) examines the preMabo position with respect to title to land in Australia and the meaning of radical title in other colonial jurisdictions, including former British colonies in Africa as well as Canada, the United States and New Zealand. Part II (chapter three) considers how the Mabo High Court redefined the English doctrine of tenure, or, more accurately, defined the Australian doctrine of tenure, by adopting the concept of radical title. Although radical title is the ‘postulate of the doctrine of tenure’, the High Court made it clear that it is also ‘a concomitant of sovereignty’; that is, radical title has two limbs. Part II begins by focusing on the ‘postulate of the doctrine of tenure’ limb of radical title and shows that, in the context of this limb, the effect of radical title is that the Australian doctrine of tenure is very different from the doctrine in English land law. Indeed, it will be seen that it necessarily follows from the postulate of the doctrine of tenure limb that Kent McNeil’s original common law Aboriginal title theory can no longer apply in the Australian real property law context without appropriate qualification.7 Crucially, the redefinition of the doctrine of tenure was only possible because the High Court re-examined the common law consequences of the colonial law classification of Australia as a ‘settled’ colony in light of the fact that it was inhabited at settlement. In addition to re-evaluating the received doctrine of tenure, therefore, Part II involves a reassessment of the conventional doctrine of continuity and questions why the Crown’s prerogative power to extinguish pre-existing land rights in inhabited settled colonies is greater than the Crown’s prerogative power of extinguishment in conquered and ceded colonies. While the analysis in Part II raises the issue of the juridical nature of the Crown’s radical title, this issue requires consideration of both limbs of radical title before it can be conclusively determined. Thus, Part III (chapters four and five) examines the juridical nature of the Crown’s radical title as a ‘concomitant of sovereignty’ and explores how the two limbs of radical title interact. It is clear from the decisions in both Mabo and Wik Peoples v Queensland8 that, in the case of land subject to pre-existing native title,   See generally Pt IV.   It will be seen that, while remaining an important contribution to the doctrine of Aboriginal title in its own right, McNeil’s theory could also apply in post-Mabo Australia if qualified so as to no longer rely on the effect of the English doctrine of tenure as creating a tenurial relationship between the Crown and the Aboriginal occupiers: see ch 3 text to n 326ff. Furthermore, McNeil’s theory would apply without qualification in the context of the preferable rule (discussed in ch 3) which fully equates the inhabitants of a settled colony with the inhabitants of a conquered colony post-act of state in respect of their rights in land. Moreover, McNeil’s analysis of the sources and content of conventional Aboriginal title is significant in the context of recognising Aboriginal customary law as a source of common law title. The theories advanced throughout this work are invariably compared to and contrasted with McNeil’s valuable contributions. 8   Above n 5. 6 7



Introduction 3

the Crown must exercise its sovereign power before its underlying radical title converts to beneficial ownership. However, is the requirement that the Crown must exercise its sovereign power before its underlying radical title expands limited to land subject to preexisting native title? When the Crown acquired sovereignty over land in Australia, did it follow that it also held the land in demesne?9 Rather than acquiring a full beneficial title, did the Crown merely acquire a right to acquire and grant beneficial title, a right to acquire a plenary title and to hold in demesne? And, if investiture of radical title in the Crown, without more, creates no beneficial entitlement to the land to which it relates, the question arises as to who owns the land where the land is not subject to native title? Since the Crown certainly has radical title in respect of all unalienated land, the Crown’s rights in relation to such land essentially depend upon the answer to the question: what is the juridical nature of radical title? Is it a bare legal title, or does it confer full and unfettered beneficial title except to the extent of native title? It has generally been assumed that the Crown only had to take further steps to become the owner of land subject to native title. Indeed, the majority of the Mabo High Court suggested that the Crown automatically acquired beneficial ownership of unalienated land which was not subject to native title on the ground that there was ‘no other proprietor’. In the context of residuary rights to land on the expiration of the term of a lease granted by the Crown, the Crown’s beneficial ownership was justified on the basis of the ‘reversion expectant’ argument. The majority, therefore, suggested a more generous interpretation of radical title: as conferring full and unfettered beneficial rights except to the extent of native title. It will be shown, however, that the ‘no other proprietor’ and ‘reversion expectant’ arguments are merely two new legal fictions which the Australian High Court created to replace the feudal fiction of ‘original Crown ownership’. Importantly, the Mabo High Court’s comments regarding the Crown’s title to unalienated land not subject to native title were mere obiter. Indeed, Blackstone has observed: There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property ... yet there are very few, that will give themselves the trouble to consider the original and foundation of this right. Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been built.10

It will be shown that when the High Court is presented with the opportunity to authoritatively determine the issue of the common law consequences of the Crown’s radical title for Aboriginal rights to land, and the justices, to use the words of Blackstone, ‘give themselves the trouble to consider the original and foundation of [the Crown’s radical title]’,11 both authority and legal principle support the proposition that, irrespective of the presence of native title, radical title does not confer a full beneficial title to any 9   ‘Demesne lands’ signifies lands of a manor which the lord has kept in his own manual occupation for the maintenance of himself and his family. Demesne is thus used to distinguish between those lands that the lord of the manor has in his own hands and such other land appertaining to the manor which was occupied by freeholders or copyholders: Attorney-General v Parsons (1832) 2 C & J 279, 308; 149 ER 120, 132 (Ex) citing 2 Bl Comm 90; P Butt, Land Law, 5th edn (Sydney, Lawbook Co, 2006) paras 428, 429. See also Brennan J’s use of the term in Mabo (n 2) 37. 10   2 Bl Comm 2. 11  ibid.

4  Introduction land. That is, the essence of mere radical title in the Crown lies in changing ‘Crown title’ to ‘potential Crown title’. It is important to emphasise that since the legal nature of the Crown’s title to property, as opposed to the Crown’s title to territory, is the only issue that is justiciable, it necessarily follows that the argument must proceed within a framework of general principles of municipal law. Indeed, it will be seen that past confusion of international law and municipal law has obscured the question of the sovereign’s title to land. And it will be seen that the fundamental change to the legal nature of the Crown’s initial title to land in Australia which accommodated Aboriginal land rights in the form of native title also facilitates recognition of Aboriginal customary law as a valid source of common law title to land. While the examination of common law Aboriginal customary title necessarily involves a consideration of decisions concerning the Crown’s title to land within Australia (including Mabo and Wik), it also requires consideration of the High Court’s decision in Commonwealth v Yarmirr12 concerning the Crown’s rights to the territorial sea. Yarmirr raised the important question of whether the acquisition of sovereignty over the territorial sea by the Crown was accompanied by the vesting of radical title in the Crown which could thus be burdened by native title. Since the majority of the High Court in Yarmirr indicated, without deciding, that as a result of legislation effecting the offshore constitutional settlement, radical title may now be the appropriate ‘tool’ to analyse the Crown’s rights to the territorial sea, chapter five examines the interrelationship between the Crown’s title to land and the Crown’s title to the sea. The theoretical constructs developed in Parts I, II and III are then applied in Part IV (chapters six, seven and eight) to highlight the important practical legal implications for Aboriginal land rights resulting from acknowledgment of the Crown’s radical title. Chapter six considers whether the Crown acquired (or can acquire) an original title to any land in Australia based upon the common law doctrine of occupancy, rather than the acquisition of a title on assumption of sovereignty. By definition, occupancy can only be used to acquire title to land which is unoccupied or res nullius. Thus, what if, before the Crown exercises its sovereign power to convert its radical title to beneficial ownership, someone else is in possession of certain land yet the possession is neither pursuant to a native title interest nor a Crown grant? In this context, does Stephens CJ’s conclusion in Attorney-General (NSW) v Brown,13 that the idea that ‘[the Crown] cannot acquire lands in a newly settled country, by discovery, and the settlement of his subjects therein ..., but must resort to the form of an “office” to give him title . . . scarcely [admits] of serious refutation’,14 continue to represent an accurate statement of the law? Because the source of the Crown’s power to deal with interests in land is now found exclusively in statute, the implications of the enactment of Crown lands legislation upon the common law interpretation of the Crown’s radical title are also examined. With the ground thus prepared, chapter seven examines the central issue of the book: whether, as a result of acknowledging the Crown’s radical title, Aboriginal people can establish common law title to land upon proof that they have a title by virtue of their own customary laws. Although the Australian High Court in Fejo v Northern Territory15 rejected an argument that native title was analogous to rights recognised in English land   Above n 3.   Attorney-General (NSW) v Brown (1847) 1 Legge 312 (NSWSC). 14   ibid 320 delivering the opinion of the Court. 15   Above n 4. 12 13



Introduction 5

law like rights of common or customary rights, it will be seen that the Court only distinguished common law rights which find their origins in actual or presumed grant; the Court failed to address common law rights which have their origins in custom and therefore exist independently of any grant. It will also be seen that recognition of the Crown’s radical title, as both the postulate of the doctrine of tenure and a concomitant of sovereignty, provides a further basis upon which Aboriginal customary law can amount to an independent source of nonderivative common law title to land. Although it is clear that unalienated land in Australia is capable of supporting a native title application, chapter seven explores the question: what is the effect of the Australian High Court’s restatement of the common law in an inhabited settled colony on the legal status of unalienated land? That is, before land is brought within the doctrine of tenure by post-sovereignty Crown grant, does a traditional ‘exception’ to the feudal doctrine of tenure apply (tenure in ancient demesne: customary law pre-dating the tenurial scheme), or does English law relating to pre-­ feudal landholding apply (folkland: an allodial system of customary landholding)? The result of the analysis in chapter seven is that Aboriginal customary law can be treated as ‘law’ for the purpose of title to land in Australia: Aboriginal people can establish common law title to land upon proof that they have a title by virtue of their own customary laws whether the existence of such title arose before or after Crown sovereignty.16 In addition to offering suggestions for directions which a future court might pursue in examining the issue of Aboriginal (customary) title to land in an inhabited settled colony, because the analysis in chapter seven also applies where the British Crown was not the first colonising power to acquire a colony – a conquest and/or cession in a bipartite colonial context – it provides a model for resolving the debate in South Africa following the decision in Alexkor Ltd v The Richtersveld Community.17 While New Zealand and Canadian jurisprudence have a close affinity with the Australian position as a result of the countries’ common British colonial history and received systems of land law, only aspects of the Canadian experience have parallels with the position in South Africa. Thus, chapter eight considers the application of the conclusions reached in the Australian and South African contexts to Aboriginal land rights in Canada. The focus of the book is on the conceptual and practical implications of the abolition of the rule that the Crown became notional owner of Australia upon settlement and the substitution of the new rule that settlement merely gave the Crown radical title to the land. The principal theme is the basis of real property rights in an inhabited settled colony. The principal question sought to be answered is the common law consequences for Aboriginal land rights ensuing from the legal nature of the Crown’s title to land in an inhabited settled colony. The answer to this question has implications for Aboriginal land rights in conquered and ceded colonies.

  See Pt IV.   Alexkor Ltd v The Richtersveld Community [2003] ZACC 18, 2004 (5) SA 460.

16 17

1 The Origin and Application of the Doctrine of Absolute Crown Ownership in Australia: The Common Law 1788–1992

I

N ORDER TO assess the common law implications for Aboriginal rights to land ensuing from the Mabo1 High Court’s acknowledgment of the Crown’s radical title it is necessary to have a clear understanding of two issues. The first, which involves a discussion of the doctrine of tenure and its genesis in pre-Conquest English law, is the feudal basis of land law in England. The second, is the pre-Mabo effect of the colonisation of Australia and reception of English land law. These issues are crucial for, preMabo, they determined the position of the Crown with respect to land held by subjects. It will be seen, in chapter three, that the Mabo High Court changed the Australian common law relating to these issues. Nevertheless, the justification for the former common law position precluded any recognition of rights in land which were not derived from Crown grant. Since the Crown was regarded as the absolute beneficial owner of all land in Australia, there was no room for any concept of non-derivative Aboriginal land rights. I  THE FEUDAL BASIS OF LAND LAW IN ENGLAND2

A  Germ of the Doctrine of Tenure Before Mabo it had always been understood that Australian land law was ‘fixed firmly in the feudal mould’3 comprised of the doctrine of tenure4 as defined in English land law.5 The basic tenet of the English doctrine of tenure is that ‘all lands were originally granted out by the sovereign, and are therefore holden, either mediately or immediately,   Mabo v Queensland (No 2) (1992) 175 CLR 1 (HCA).   See also U Secher, ‘The Doctrine of Tenure in Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction” – Part 1’ (2006) 13 Australian Property Law Journal 107. 3   M Stuckey, ‘Feudalism and Australian Land Law: “A Shadowy, Ghostlike Survival”?’ (1994) 13 University of Tasmania Law Review 102, 102. 4   Although Australian and English lawyers treat ‘tenure’ of land as characteristic of feudalism, the verb tenere (to hold; sometimes in conjunction with habere) was used to describe the holding of land before there was any feudal theory. What is characteristically feudal is not tenere terram (tenure of land) but tenere terram de x (tenure of land from a feudal superior): F Pollock and FW Maitland, The History of English Law Before the Time of Edward I, vol 1, 2nd edn (Cambridge, CUP, 1911) 234 fn 1; CF Kolbert and NAM Mackay, History of Scots and English Land Law (Berkhamsted, Geographical Publications Ltd, 1977) 9. 5   Attorney-General (NSW) v Brown (1847) 1 Legge 312 (NSWSC). 1 2

10  Absolute Crown Ownership in Australia 1788–1992 of the crown’.6 Thus, a ‘fundamental maxim and necessary principle’ of the doctrine of tenure, is ‘that the king is the universal lord and original proprietor of all the lands in his kingdom’.7 Although it appears to be now generally admitted that the Roman precarium is one of the seeds of feudalism,8 the germ of the feudal doctrine of absolute Crown ownership of land lies in three Anglo-Saxon institutions: the forms of landholding in pre-Conquest England:9 folkland,10 bookland11 and laenland.12 An understanding of these forms of landholding is crucial in the context of the Australian common law post-Mabo. It will be seen that since these forms of landholding preceded both the acquisition of sovereignty by William the Conqueror and the establishment of the feudal doctrine of tenure, the conditions under which they existed are analogous to the Australian experience, where Aboriginal landholding preceded both the acquisition of British sovereignty and the reception of English law. Indeed, it will be seen in Part IV of this book13 that the implications for Aboriginal rights to land arising from the Australian High Court’s acknowledgment of radical title are suggested (in part) by either pre-feudal forms of landholding or the traditional exceptions to the feudal doctrine of tenure.14 i Folkland Despite the term ‘folkland’ occurring only three times in surviving Anglo-Saxon legal documents,15 comprehensive theories of early English landholding have been built upon it. In his treatise on the prerogative in 1830, John Allen originated the theory that folk6   2 Bl Comm 53. Pre-Mabo, the landmark Australian case in this context was A-G v Brown (n 5). This decision is discussed in AR Buck, ‘Attorney-General v Brown and the Development of Property Law in Australia’ (1994) 2 Australian Property Law Journal 128 and is re-examined in light of the Mabo decision in ch 4. 7   2 Bl Comm 51. See also below text to n 106ff. 8   Pollock and Maitland, 1 The History of English Law (n 4) 68 fn 1. See also HS Maine, Dissertations on Early Law and Custom, Chiefly Selected from Lectures Delivered at Oxford (London, John Murray, 1883) 342. 9   FW Maitland, Domesday Book and Beyond – Three Essays in the Early History of England (Cambridge, CUP, 1897) 224ff, esp 299–300 where Maitland posits that the confusion of gifts of land with loans of land is one of the original germs of the rule that all land is held of the King (discussed below text to nn 89–93); Kolbert and Mackay, History of Scots and English Land Law (n 4) 10; AWB Simpson, A History of the Land Law, 2nd edn (Oxford, Clarendon Press, 1986) 2. 10   Folcland. 11   Bocland. 12   cf P Butt, Land Law, 5th edn (Sydney, Lawbook Co, 2006) para 410 who asserts that there were four major forms of landholding in pre-Conquest England: ‘folkland’, bookland’, ‘laenland’ and ‘allodial land’. Butt’s classification fails to acknowledge that folkland was allodial land: see below text to n 76. See also F Pollock, The Land Laws (London, Macmillan and Co, 1883) 20–23, who asserts that there were no less than four distinct species of landed property: folkland, common land, yrfe-land or erf-land, and bocland; KE Digby, An Introduction to the History of the Law of Real Property, 3rd edn (Oxford, Clarendon Press, 1884) 11–18, who asserts that there are three ways in which folkland might be dealt with. The divergence in classifying the forms of landholding in pre-Conquest England was the result of the supposition that at a remote time there was much land that was neither folkland nor bookland. In order to describe the allotments which the original settlers received the words alod, ethel, ‘family land’, ‘common stock’ etc were used. This supposition has been discredited: see below section headed ‘Folkland’. 13   See especially ch 7. 14   For a discussion of the exceptions to the feudal doctrine of tenure see below text to n 124ff. 15   It occurs in one law (an Ordinance of King Edward the Elder discussed below n 25) and in two charters (Birch CS nos 496 and 558): see P Vinogradoff, ‘Folkland’ in HAL Fisher (ed), Collected Papers of Paul Vinogradoff with a Memoir, vol I (Oxford, Clarendon Press, 1928) 91–111 (reprinted from (1893) 8 The English Historical Review 1–17); WS Holdsworth, A History of English Law, vol 2, 4th edn (London, Methuen & Co Ltd, 1936) 67; TFT Plucknett, A Concise History of the Common Law, 5th edn (London, Butterworth & Co (Publishers) Ltd, 1956) 519.



The Feudal Basis of Land Law in England 11

land was the land owned by the nation; the ager publicus of England.16 Allen’s inter­ pretation was the generally accepted doctrine until 189317 when Sir Paul Vinogradoff established that folkland was an allodial system of customary landholding in which land was held of no superior.18 It will be shown that Vinogradoff’s interpretation is historically correct:19 he proved that folkland was ‘the holding of an individual which [was] governed by the ancient folk-right and, therefore, subject to restrictions which tend[ed] to preserve it as a family estate’.20 Because its most significant feature was that it was inalienable out of the holder’s family, by centering on the family group, it did, in one sense, belong to the folk.21 It is the oldest and, for a long time, the only really important type of Anglo-Saxon tenure in England. As this form of landholding contained no necessary implications of lordship or tenures by one person from another, it was essentially pre-feudal.22 Although the holder of folkland was a free landowner, the King discovered at an early date that there existed over the landowner and his land an alienable superiority.23 ‘Partly by alienations of this superiority, partly perhaps by gifts of land of which the king [was] himself the owner, book-land [was] created’.24 ii Bookland Folkland has been contrasted with bookland in a law of Edward the Elder25 as if it included all land that was not bookland.26 Bookland was invariably a gift from a super­ ior and took the form of land held under the terms of some charter or a written instrument called a book.27 Land thus granted was said to be ‘booked’ to the grantee. The earliest grants by book were generally by the King to the church,28 although the King himself might be the grantee under one of these grants.29 Later, in the tenth century, 16   J Allen, Inquiry into the Rise and Growth of the Royal Prerogative in England (London, Longman, Rees, Orme, Brown, and Green, 1830). For an account of Allen’s theory see Vinogradoff, ‘Folkland’ (n 15) 92–93. 17   For a list of authors who have endorsed Allen’s interpretation see Vinogradoff (n 15) 91–92. This list includes Pollock, The Land Laws (n 12) 20, App – Note B. See also Digby, An Introduction to the History of the Law of Real Property (n 12) 11ff. 18   Vinogradoff (n 15). See also Maitland, Domesday Book (n 9) 244ff; Pollock and Maitland (n 4) 61–62; Kolbert and Mackay (n 4) 9; discussion below text to n 53ff. Folkland is further explored in ch 7. 19   See below text to n 53ff. 20   Vinogradoff (n 15) 103. Thus restoring the 18th century interpretation of Spelman. See also Maitland (n 9) 244–58. 21   See also Pollock and Maitland (n 4) 62 who adopt Vinogradoff’s interpretation and suggest that it is probable that the alienation of folkland was difficult. cf DR Denman, Origins of Ownership: A Brief History of Land Ownership and Tenure in England from Earliest Times to the Modern Era (London, George Allen & Unwin Ltd, 1958) 67. 22  Butt, Land Law (n 12) para 410. 23   Maitland (n 9) 74, 256; Holdsworth, 2 History of English Law (n 15) 69; Plucknett, A Concise History of the Common Law (n 15) 519. 24   Maitland (n 9) 257. 25   The Laws of King Edward cap 2 (Ordinance ‘Of Him Who Denies Justice To Another’) declared: ‘Also we have ordained of what he were worthy who denied justice to another, either in “boc-land” or in “folc-land,” and that he should give him a term respecting the “folc-land” when he should do him justice before the reeve. But if he had no right either to the “boc-land” or to the “folc-land,” that he who denied the right should be liable in xxx. shillings to the king; and for the second offence, the like: for the third offence, the king’s “oferhyrnes,” that is, cxx. shillings, unless he previously desist’. The Ordinance is reproduced in B Thorpe (ed), Ancient Laws and Institutes of England (London, GE Eyre and A Spottiswoode, 1840) 69. 26   Maitland (n 9) 246. 27   These landbooks or charters were, with hardly any exceptions, ecclesiastical deeds: Maitland (n 9) 226. 28   See Vinogradoff (n 15) 106–07. 29   See Digby (n 12) 14.

12  Absolute Crown Ownership in Australia 1788–1992 bookland was no longer peculiarly ecclesiastical30 and there were cases in which the King booked land to his thegns and later the King’s subjects made analogous gifts among themselves.31 Laymen were pleased to obtain bookland on account of its legal advantages, notably devisability and alienability.32 Historically, all bookland had been folkland.33 The book, however, was the law to which bookland was subject; the book, and not the old customary law, determined what later lawyers called the incidents of tenure.34 The powers of the grantee depended upon the form of the gift as expressed in the charter. As a general rule, when a grant of folkland was made to an individual to hold as bookland, it was expressed in the gift that the land was to be held free from all burdens and that the grantee was to be under no obligation to render any money payment or services of any kind to the grantor of the land with the exception of the three-fold service, the trinoda necessitas, to which all land was subject.35 When a book had been granted, all subsequent alienations of the land, whether inter vivos or by will, went back to the original charter (the liber antiquus) and derived their force from it.36 Accordingly, the power of alienation might be restricted so that the land could not be granted away from the kindred,37 or the descent of the land could be confined to lineal descendants or to heirs male or female.38 Even when, as was generally the case, the book made in favour of a layperson provided that the grantee was to have the power of leaving the land to whomsoever he pleased, it has still been doubted whether this testamentary power was utterly unrestrained; that is, whether the grantee would not have to consult the royal grantor when making a will.39 In later grants it was common to find words expressing that rights of jurisdiction were conveyed together with the land.40 The growing organisation of the state had taught the King that he had various rights over the land occupied by others, including rights to jurisdiction, with the result that it was not only land, but also the various royal rights which were granted by book.41 Thus, the book often added to the grantee’s rights as landowner many of the powers of the state.42 In process of time, the conception of bookland came to be nearly, if not quite co-extensive with, that of allodial land.43 Accordingly,   Bookland, however, never lost all trace of its ecclesiastical origin.  Denman, Origins of Ownership (n 21) 68. See also Holdsworth (n 15) 69–70. 32   It was, therefore, free from the family restrictions which burdened folkland, unless the grantor set up a type of entail in the book: see Plucknett (n 15) 518. 33   Vinogradoff (n 15) 93; Maitland (n 9) 154. 34   Holdsworth (n 15) 68. 35   This consisted of the duty of rendering military service (expeditio), and of repairing bridges and fortresses (pontis arcisue constuctio): Digby (n 12) 13. 36   Vinogradoff (n 15) 99. 37   Digby (n 12) 14. See, eg, Laws of King Alfred cap 41 (Doom ‘Of “Boc-Lands”.’) reproduced in Thorpe, Ancient Laws and Institutes of England (n 25) 39; W Stubbs (ed), Select Charters and Other Illustrations of English Constitutional History from the Earliest Times to the Reign of Edward the First, 6th edn (Oxford, Clarendon Press, 1888) 63. 38   Digby (n 12) 14. 39   Maitland (n 9) 297. 40   This is expressed by formulas which enshrine the words ‘sac and soc’, ‘toll and team’, ‘infangthef and utfangthef’: see Maitland (n 9) 82, 266 fn 1; Pollock and Maitland (n 4) 579; Holdsworth (n 15) 166. Such jingles import ‘jurisdiction’. 41   Maitland (n 9) 19–21; Holdsworth (n 15) 69. 42   Holdsworth (n 15) 70. See also Maitland (n 9) 232 who asserts that landbooks conveyed not the ownership of land, but a superiority over land and over free men; Denman (n 21) 67. 43   Digby (n 12) 13. Alodium is, in documents of the Norman age, a regular Latin translation of bookland: Pollock and Maitland (n 4) 60. The term ‘allodial’ simply meant land held in absolute ownership, not in dependence upon any other body or person in whom the proprietary rights were supposed to reside, or to 30 31



The Feudal Basis of Land Law in England 13

it is not possible to say that, from the beginning, the grant of bookland established between the grantee and the royal grantor any relation of derivative and dependent tenure. What the King gave he apparently gave absolutely. In particular, a gift of land to a church was a dedication.44 Although the books granted to laymen were also usually an absolute gift, at least from the middle of the tenth century onwards, they usually stated a causa, or a consideration, for the grant. The consideration in the grant was, to use a later expression, a past consideration; the land coming as a reward rather than a retaining fee.45 However, as early as 801,46 and again in 946,47 the King reserved the right to dispose by will of the bookholder’s fealty. Accordingly, a continuing relationship was established between, on the one hand, the King and his successors in title and, on the other hand, the bookland holder and his successors in title.48 The grant, however, presupposed that the personal relationship of lord and thegn existed between the grantee and the grantor before the grant was made. The holder of bookland stood, because of his land, in a specially close relationship to the King; the holder of bookland was a tenant-in-chief of the King notwithstanding that he had commended himself to someone else.49 If payments were due from him or if the land was forfeited, the payments were made or the land went to the King.50 When regarded from one point of view, such rules may well indicate that in the latter half of the tenth century there was between many of the holders of bookland and the King a relationship of feudal tenure;51 bookland having been derived from, was specially liable to return to, the King.52 Still the feudalism displayed was imperfect in one very import­ ant respect: it did not apply universally to the land law. In so far as feudalism became property law, England was, of all countries, to become the most feudalised.

whom the possessor of the land was bound to render services: EA Freemen, The History of the Norman Conquest of England: Its Causes and its Results, vol 1, 2nd edn (Oxford, Clarendon Press, 1870) 92–93; Digby (n 12) 13. Gradually, the word appears to have been used to express land held in absolute ownership, the subject of free disposition inter vivos or by will: W Stubbs, The Constitutional History of England in its Origins and Development, vol 1 (Oxford, Clarendon Press, 1874) 53, 55. With the growth of the conception of tenure came a changed sense of the word ‘alodium’ as used in Domesday Book; it was sometimes applied to land which, although hereditary and alienable, was held of a superior. When the conception of tenure had become more general, the meaning of alodium seems to be land which would descend to the heir: Digby (n 12) 13. See also EZ Tabuteau, ‘Ownership and Tenure in Eleventh-Century Normandy’ (1977) 21 American Journal of Legal History 97, esp 100ff. 44   Maitland (n 9) 293. See also Digby (n 12) 13–14. 45   Maitland (n 9) 293. 46   Cenwulf of Mercia and Cuthraed of Knet gave land to a thegn as a perpetual inheritance, ‘but so that he shall remain a faithful servant and unshaken friend to us and our magnates’: Maitland (n 9) 294. 47   King Edmund gave land to a faithful minister ‘in order that while I live he may serve me faithful in mind and obedient in deed and that after my death he may with the same fealty obey whomsoever of my friends I may choose’: Maitland (n 9) 294. 48  ibid. 49   This is suggested by the Laws of King AEthelred (Ordinance I cap 1) and the Laws of King Cnut (Secular Ordinance cap 13, 78): see Maitland (n 9) 314; Holdsworth (n 15) 71. 50   The Laws of King AEthelred (Ordinance I cap 1) declared that every wite incurred by a holder of bookland is to be paid to the King; and the Laws of King Cnut (Secular Ordinance cap 13, 78) declared that the person who is outlawed, as well as the person who fled in battle, forfeited his bookland to the king, no matter who his lord was. The text of these Ordinances is reproduced in Thorpe (n 25) 119–20, see esp 120 (AEthelred), 164, 180 (Cnut). 51   Maitland (n 9) 317. 52   ibid 295.

14  Absolute Crown Ownership in Australia 1788–1992 iii  Folkland: Private Property or Public Property? Although it is clear that all bookland must have been created out of folkland, an essential doctrine of Allen’s theory was that all private property had been carved out of the state demesne by governmental grants.53 Allen’s theory, therefore, brought all the forms of private ownership under the head of bookland. The difficulties with this aspect of Allen’s theory were discovered as successive authors54 began analysing the theory in greater detail. In particular, this classification did not account for the existence of land which, while held by individuals, was not bookland.55 If these lands were included in folkland, and folkland meant ager publicus, then everyone not holding bookland was in law a mere tenant from the state.56 Accordingly, it was supposed that there was much land that was neither folkland nor bookland. In order to describe this species of private property, various conjectural names were proposed by several writers: the ethel;57 ‘family land’;58 ‘yrfe-land’ or ‘erf-land’;59 and the ‘alod’.60 Vinogradoff argued that there was no need to fabricate some ‘artificial designation’ for this form of private property because the appropriate term used to designate it had been provided: it was folkland.61 The law of Edward the Elder62 in which the term ‘folkland’ occurred, treated bookland and folkland as an exhaustive classification of land. The legislature had enacted this law to deal with all who deforced others of their rights of ownership in land and expressly mentioned the two classes into which those rights fell. The only rights of private ownership known to Anglo-Saxon law were mentioned: if not bookland, land was folkland.63 Pursuant to the provisions of Edward’s Law, if the holding that was attacked was established by folklaw, the complainant had to go to the folkmoot. If the land was privileged land that was held by book, then the complainant could go directly to the King. It is difficult to accept that this law said nothing of one very common kind of private property in land (purportedly designated by such terms as ‘ethel’ and ‘alod’) or that there was no evidence that land held by the most general and practically important form of title had any proper name at all.64 It is also difficult to conceive that by the beginning of the tenth century the amount of private property that had been indicated by such terms as ethel and alod was so insignificant that it was neglected, or that the distinction between it and bookland had been obliterated.65 It is highly improbable that every, or virtually every, piece of family land had by this time been made the subject of a book and yet until land had been booked it was not bookland.66

  Vinogradoff (15) 93. See also above n 16.   Notably Kemble: Vinogradoff (n 15) 93ff. 55   Land was held under rules which differed substantially from those which governed the ownership created by the book: Vinogradoff (n 15) 93–94; Pollock and Maitland (n 4) 62; Holdsworth (n 15) 67. 56   Pollock and Maitland (n 4) 62. 57   Kemble: see Vinogradoff (n 15) 94. 58   Lodge: ibid 95. 59   Pollock (n 12) 21. 60   Maitland (n 9) 257. 61   Vinogradoff (n 15) 97, 109–10. 62   Laws of King Edward cap 2: see above n 25. 63   Although the derivative rights of those who held under laenland are not mentioned, what is the laenland of one person must be the bookland or the folkland of another: Vinogradoff (n 15) 98. 64   Pollock and Maitland (n 4) 62. 65   Vinogradoff (n 15) 109. 66   ibid 110. 53 54



The Feudal Basis of Land Law in England 15

Furthermore, in neither of the two charters in which the term ‘folkland’ occurs does the usage demand that it should be interpreted as ager publicus. In the earlier charter, from the year 858, King AEthelberht with the consent of his witan granted to his thegn, Wulflaf, a portion of land, W, (aliquam partem terrae iuris mei) in exchange for land at M. The land at W was bounded on the west by the ‘King’s folkland’ which was held by Wulflaf and another. The document was endorsed on the back with a statement to the effect that the King converted the land at M into folkland. The two facts, as evidenced in the charter, that the King could hold folkland and that the King’s folkland could be let to other people presented no difficulty to Vinogradoff’s theory of the meaning of folkland. It was, however, a third fact, namely that the transaction between the King and Wulflaf was effected with the express consent of the witan, that proponents of Allen’s dogma used to establish that folkland was under the special protection of the witan as representatives of the nation and, therefore, the King could not dispose of folkland at his will.67 Vinogradoff answered this contention by noting that ‘the power of the witan in all sorts of affairs [was] a very remarkable feature in Anglo-Saxon history’.68 Accordingly, even when the King was not dealing with any ager publicus, the witan took a part in the King’s gifts.69 The other charter, which is of greater value, is the will of Ealdorman Alfred and comes from the end of the ninth century. After disposing of his bookland, essentially to his wife and daughter, he requested that the King allow his son to succeed to the folkland which he had held and, if not, he left his son an equivalent out of his bookland previously given to his wife and daughter.70 According to Allen’s theory, because the testator had been holding certain lands belonging to the folk, he had no heritable right in those lands. He hoped that the King and witan, as administrators of the national demesne, would make a grant out of the ager publicus. Vinogradoff, however, pointed to another and more probable explanation: the son to be provided for was very possibly an illegitimate son.71 An illegitimate son would have no right to inherit from his father and his father could not leave the family land to him.72 In the context of Vinogradoff’s explanation, therefore, the testator’s request that his son get the folkland merely expressed a wish that the King and witan decide a question of law or of fact in favour of the son.73 All the difficulties arising from the faultiness of Allen’s classification disappear as soon as the simple principle suggested by Edward’s law is adopted: Land . . . [was] either book-land or folk-land. Book-land [was] land held by book, by a royal and ecclesiastical privilegium. Folk-land [was] land held without book, by unwritten title, by the folk-law.74   ibid 104–05.   ibid 105–06. 69   ibid 105. 70   The famous sentence is ‘If the king will concede to him the folkland in addition to this bookland, then let him have and enjoy it; but if it be not so, let her (the widow) give him whichever she pleases, either the land at Horsley . . . or that at Longfield’: Vinogradoff (n 15) 101. 71   If this were not the case, he would have expected to have received the bulk of his father’s estate. Further, in his will, the testator refers to his daughter as ‘our common bairn’, whereas he refers to the subject son as ‘my son’: Maitland, Domesday Book (n 9) 245–46. 72   Vinogradoff (n 15) 101. 73   ibid 102. 74   Maitland (n 9) 257. See also Vinogradoff (n 15) 103. 67 68

16  Absolute Crown Ownership in Australia 1788–1992 Folkland, the most ancient kind of private property was noticed; whereas that class of rights which historians had indicated by such terms as ‘ethel’ and ‘alod’, was not referred to in Edward’s law.75 Thus, it appears that Maitland’s observation that “‘[f]olk-land” is the term which modern historians have rejected in favour of the . . . alod’ is the correct approach.76 iv Laenland While bookland owners were, for the most part, free to alienate their land, folkland was subject to restrictions that tended to preserve it as a family estate.77 If the privilege enjoyed by bookland was given away, however, the conveyance would have an absolutism about it that would render it unable to secure future service from the grantee.78 In order to overcome these impasses, the device of loaning the land was formulated: laenland was created.79 Laenlands were loaned lands; that is lands granted for a period, either the life of the grantee or some longer period, three lives becoming common.80 The loan was a temporary gift and the nature of the transaction remained the same whether the person to whom the loan was made did, or did not, come under the obligation of paying rent or performing services.81 A great part of the cultivation of the land was undertaken by people who occupied it by agreement or permission of the superior owner and paid for its use in money, in kind, or in labour; not uncommonly in all three.82 Although loans were undoubtedly made to the cultivators of the land,83 the fact that they were rarely put into writing has meant that only the ‘aristocratic branch’ of loans is available for analysis; that is loans from the church to great men and sometimes to the King.84 Individuals were allowed temporary or possessory rights over folkland and bookland without altering the land’s character; the reversion (to use modern terminology) remained in the holder of the folkland and bookland.85 Laenland holders merely acquired the benefits of landright for the duration of the loan on conditions of service or otherwise.86 It has already been observed that the holder of bookland stood in a specially close relation to the King: if payments were due from him or if the land was forfeited,   Vinogradoff (n 15) 109.   Maitland (n 9) 257. 77   Vinogradoff (n 15) 103. See also above nn 20, 21. 78   Denman (n 21) 68. 79  Land was often the only consideration which could be offered in exchange for services: Pollock and Maitland (n 4) 61. 80   Holdsworth (n 15) 70; Plucknett (n 15) 520. There were local variants in the north known as thegnage and drengage: Holdsworth (n 15) 168; Kolbert and Mackay (n 4) 10. cf Butt (n 12) para 410, who refers to laenland as leasehold and therefore a form of tenure. 81   Maitland (n 9) 302; Holdsworth (n 15) 70. 82   Pollock (n 12) 27. 83   Maitland (n 9) 302. 84   It is not possible to distinguish between laenland and bookland by saying that the holder of bookland would always have a perpetual right to the land, ‘an estate in fee simple’ or an estate to him and his heirs. In many cases a royal charter would create a smaller estate than this: Maitland (n 9) 313. 85   Although Pollock and Maitland (n 4) 61 state that it is not clear whether the term ‘laenland’ extended to customary tenures or was limited to interests created by an express agreement, there are books which in unambiguous terms bear witness to loans which existed at the date of their booking: see Maitland (n 9) 314. Laenland may, therefore, be either folkland or bookland. 86   Denman (n 21) 68. 75 76



The Feudal Basis of Land Law in England 17

the payments were made or the land went to the King.87 In the case of laenland, however, the payments were made or the land went to the grantor.88 The loans and relationships so created were expressive of an age that was searching for a new legal concept: the feudum.89 Bookland and folkland shone in their own light, but the loan was essentially something derivative and dependent. However, Maitland observed: [T]he difference between a gift of land and a loan of land was not nearly so marked as it would be by modern law. The loan may be regarded as a temporary gift, the gift as a very permanent, if not perpetual, loan . . . [o]r . . . put . . . in another way . . . usufruct is a temporary dominium and dominium is a usufruct that may be perpetual.90

This ‘confusion of loans with gifts and gifts with loans’91 was due to a natural development; ‘books’ previously used for only one purpose were beginning to be used for many purposes, including bearing witness to a loan.92 Maitland saw in this confusion of loans of land with gifts of land the origin of derivative and dependent tenure: the coming of the feudum in all but name.93 v Summary In the three kinds of Anglo-Saxon landholding we see two stages in the development of the doctrine of tenure. Freemen holding folkland were under the soke or jurisdiction of the King and their soke might be granted to another.94 Consequently, by grants of this superiority over land owned by freemen and by grants of the King’s own land, bookland was created. By virtue of the book, the bookland holder came to stand where the King stood. Accordingly, the feorm and other dues were his. The dues were rendered to bookland grantees by virtue of the folkright.95 Thus, the same land was both bookland and folkland, depending on whether it was viewed from the perspective of the grantee by book or the cultivator responsible for the dues. Nonetheless, it could not be said that those who held folkland in these circumstances held it ‘of’ the bookland owner; they may have held it ‘under’ him, but not ‘of’ him.96 This is reflected in the slight shade of difference between two propositions: that every English landholder held his land de (of) some lord, and that every English landholder held his land sub (under) some lord. Sub layed stress on the lord’s

  See above text to n 50.   Maitland (n 9) 314; Holdsworth (n 15) 71. 89   Denman (n 21) 68. 90   Maitland (n 9) 299. 91   ibid 300. 92   ibid 316. 93   ibid 299–300, 317–18. Maitland argued: ‘on looking at the ancient land-books, we may find reason to suspect that the confusion of loans with gifts and gifts with loans . . . is one of the original germs of the rule that all land is held of the king. After all, the king – and he is by far the greatest giver in the country and his gifts are models for all gifts – never can really part with all the rights that he has in the land that he gives, for he still will be king of it and therefore in a sense it will always be part of his land’: ibid 299–300. See also Denman, (n 21) 68. Maitland’s view has been challenged: JEA Jolliffe, The Constitutional History of Medieval England from the English Settlement to 1485, 3rd edn (London, Adam and Charles Black, 1954) 77. 94   WS Holdsworth, A History of English Law, vol 1, 3rd edn, rewritten (London, Methuen & Co Ltd, 1922) 19, 20; Holdsworth (n 15) 71. See also Digby (n 12) 19–20. 95   Denman (n 21) 67. 96   Maitland (n 9) 154; Denman (n 21) 68. 87 88

18  Absolute Crown Ownership in Australia 1788–1992 power, which may be personal or justiciary, rather than proprietary, while de imported a theory about the origin of the tenure; it made the tenant’s rights look like derivative rights; it was assumed that he got his land from his lord.97 Although bookland holders generally also held their land free of any implications of tenure, the rights of privileged landowners were beginning to resemble the rights of tenants rather than absolute owners. Laenland, on the other hand, was essentially ‘a form of tenure, because the tenant held the land “of” the landlord in return for performing services (or, later, paying rent)’.98 Thus, the elements of the idea of tenure were present in the period preceding the Norman Conquest, but there were still landholders who were free to take their lands to whatever lord they chose.99 Nevertheless, it was an easy step forward from the condition that most great men held their lands by book or charter from the King and many lesser men in turn held theirs by loan from them, to the notion that the King’s admitted sovereignty over the whole realm must be based on a residuary ownership of its soil.100 While events were, therefore, undoubtedly tending towards the evolution of the doctrine of feudal tenure, it was not until after the Norman Conquest that the more systematic Norman lawyers actually enunciated it. B  The Norman Conquest: Establishment of Feudal Tenure In the period following the Norman Conquest, the diversified Anglo-Saxon system of landholding disappeared and the doctrine of feudal tenure of land was established.101 When the country was brought under the government of a single King, land which lay waste and uncultivated102 began to be regarded as in an especial manner the property of the King and was frequently referred to as the ‘King’s folkland’.103 With the passage of time, this unoccupied land came to be regarded as the land of the King, terra regis, and thus grew the conception that all land was originally vested in the King and that the King is the owner of all unoccupied lands.104 What the Normans introduced was not so much the underlying pattern of social organisation as the institutional and legal quintessence of that pattern.105 Having grasped   Maitland (n 9) 154.   Butt (n 12) para 410. 99   ibid 48–50. 100   See also Maitland’s argument above n 93. 101   Pollock and Maitland (n 4) 62–63; J Williams, Principles of the Law of Real Property, rearranged and partly rewritten by TC Williams, 23rd edn (London, Sweet & Maxwell Ltd, 1920) 8, 12–13; Denman (n 21) ch 4, esp 79; K McNeil, Common Law Aboriginal Title (Oxford, Clarendon Press, 1989) 81. ‘It does not seem possible either to assign any time in English history when some free men did not hold land from their personal lords, or to assign the time when this became a normal state of things’: Pollock and Maitland (n 4) 30. See also Maitland (n 9) 70ff; P Vinogradoff, The Growth of the Manor, 2nd edn (London, George Allen & Unwin Ltd, 1911) 147; FM Stenton, The First Century of English Feudalism 1066-1166 (Oxford, Clarendon Press, 1932) 114; Kolbert and Mackay (n 4) 11. 102   And ‘used only for pasture of sheep and cattle, for feeding swine on the acorns and beechmast, or for supplying wood for building, repairs, and fuel’: Digby (n 12) 17. 103   Denman (n 21) 67. See also Digby (n 12) 18. 104   Digby (n 12) 18, 34. 105   P Vinogradoff, Villainage in England: Essays in English Mediaeval History (Oxford, Clarendon Press, 1892) 131–34; WJV Windeyer, Lectures on Legal History, 2nd edn, revised (Sydney, The Law Book Co of Australasia Pty Ltd, 1957) 26, 39–43; Stuckey, ‘Feudalism and Australian Land Law’ (n 3) 106. 97 98



The Feudal Basis of Land Law in England 19

the feudal concept of tenure, English lawyers extended it. The hundred years following the Conquest represent a period of transition towards the universal acceptance and application of the doctrine of dependent tenure.106 Overall lordship of the King was the idea that marked off landholding under the Norman Kings from the Anglo-Saxon forms of landholding. Whether any definitely new idea was introduced into English land law is a disputable question,107 but undoubtedly the Conquest, the forfeiture and the redistribution of the land gave to the idea of dependent and derivative tenure a dominance that it did not obtain elsewhere.108 The King as ‘Lord Paramount’ was the essence of Norman feudalism and the reason why landholding for subjects was inevitably derivative and dependent tenure. From the King’s terra regis, new grants of land were made. It was, however, the principle ‘nulle terre sans seigneur’109 that ensured an unusually perfect feudal structure. This principle was applied universally, from the lowest levels of society up to the King at the apex of the feudal structure, with the result that landowners who had previously been under the jurisdiction of any lord were regarded as tenants holding their lands in a feudal sense.110 The crucial point is that a grant from the King had become the basis, actual or fictional, of all landholding in England.111 As Kent McNeil has shown, this feudal theory required factual justification.112 Since possession generally had to be taken for a right of property to be acquired at common law,113 the rights attached to the King’s paramount lordship needed a possessory base.114 Accordingly, it became a ‘fundamental maxim, and necessary principle (though in reality a mere fiction)’ of the doctrine of tenure ‘that the king is the universal lord and original proprietor of all the lands in his kingdom; and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon [feudal] services’.115 Those services, together with the incidents of tenure, ‘constituted the King’s lordship, which though incorporeal was possessed and owned by the King as a thing, separate from the land to which it related’.116 Thus, the King, as Lord 106   Pollock and Maitland (n 4) 31; Kolbert and Mackay (n 4) 11. See also Maitland (n 9) 94. cf Simpson, History of the Land Law (n 9) 3; Butt, Land Law 2006 (n 12) para 411, who argue that by the time of the Domesday Book (1086) the feudal system of land tenure had been adopted throughout England. 107   Although historians have been discussing the origins of English feudalism and the impact of the Norman Conquest, they have been unable to reach a consensus on whether feudalism, or any of its elements, existed in pre-Conquest England. For a detailed account of this controversy with extensive bibliographical references see CW Hollister (ed), The Impact of the Norman Conquest (New York, Wiley, 1969). 108   Pollock and Maitland (n 4) 94. Every acre of English soil and every proprietary right therein were brought within the compass of a single formula, which Pollock and Maitland expressed as ‘Z tenet terram illam de . . . domino Rege’: ibid 232–33. On the Continent feudal landholding did not engulf all land; tracts of allodial land escaped the net: Simpson (n 9) 3. Scotland came very close to England but some allodial land survived. For the Australian High Court’s redefinition of the English doctrine of tenure see generally ch 3. 109   No land without a lord. 110  McNeil, Common Law Aboriginal Title (n 101) 81–82. See also R Megarry and HWR Wade, The Law of Real Property, 5th edn (London, Stevens & Sons Ltd, 1984) 12–13; Simpson (n 9) 2–3. 111   2 Bl Comm 51, 53; Megarry and Wade, The Law of Real Property (n 110) 12; Butt (n 12) para 412. See also Mabo (n 1) 46 (Brennan J). 112   McNeil (n 101) 82–84. cf B Edgeworth, ‘Tenure, Allodialism and Indigenous Rights at Common Law: English, United States and Australian Land Law Compared after Mabo v Queensland’ (1994) 23 AngloAmerican Law Review 397, 431. 113   The exception being in the case of title by descent. 114   McNeil (n 101) 82. 115   2 Bl Comm 51. 116   McNeil (n 101) 82. See also the authorities cited ibid 82 fn 19.

20  Absolute Crown Ownership in Australia 1788–1992 Paramount, did not have dominium117 of England but a more practically important incorporeal hereditament or supreme seignory.118 Indeed, the doctrine that all land is owned by the Crown is a modern one and is quite misleading.119 Nevertheless, it was in order to justify the King’s paramount lordship that the twofold fiction that the King originally owned all land and that all titles to land were originally derived from Crown grant was invented.120 The King was not just sovereign over all the territory within his realm, but Lord Paramount over all land within that territory as well. The crucial point is that the latter conclusion was merely the result of the fictional explanation that all land was originally possessed and owned by the King. Thus, the origin of derivative and dependent tenure lies in the confusion of sovereignty with ownership,121 rather than the confusion of gifts with loans as suggested by Maitland. It has been suggested that the extensive application of the feudal formula which is characteristic of England was perhaps only possible in a conquered country.122 Nevertheless, the universal application of the doctrine of tenure, combined with later centralisation of justice into the hands of the King, enabled the royal lawyers to systematise the doctrine of tenure to such a degree that it survived even feudalism itself.123 C  ‘Exceptions’ to the Doctrine of Tenure While feudalism provided the juristic foundation for what is a readily accepted legal fiction,124 the axiom nulle terre sans seigneur125 enunciates a legal principle that has had an extremely important part to play in the legal evolution of property in land. This legal classification was, however, tempered by a number of antithetical factors: allodial landholding, recognition of customary law rights to land, the estate pur autre vie, adverse possession and ecclesiastical tenures.

117   English law does not look on the superiority (which it calls the ‘seignory’) as being an estate in land. Estates are certain interests in land viewed from the point of view of duration, and it is not only the land itself that may be treated thus. Although an incorporeal hereditament is, in English law, a right affecting land, it is not one that is sufficiently extensive to carry full possession either now or in the future. However, estates may be created in interests such as an incorporeal hereditament: Kolbert and Mackay (n 4) ch 13. It is to this category of incorporeal hereditaments that English law has relegated the seignory of a feudal lord: Plucknett (n 15) 543. 118   JE Hogg, ‘Effects of Tenure on Real Property Law’ (1909) 25 Law Quarterly Review 178, 181. cf AttorneyGeneral of Ontario v Mercer (1883) 8 App Cas 767 (PC) 772. 119   It was sufficient for the medieval lawyers to note that the King was lord, ultimately, of all the tenants in the realm and that as supreme lord, the king had many rights common to other lords (for example, rights to escheat) as well as some peculiar to his superior position (for example, rights to forfeitures): AD Hargreaves, An Introduction to the Principles of Land Law (London, Sweet & Maxwell Ltd, 1952) 48; Simpson (n 9) 1, 47. 120   McNeil (n 101) 84 and authorities cited at 84 fn 26. See also A-G v Brown (n 5) 318 (Stephen CJ delivering the judgment of the Court). 121   See also below text to n 201. 122   See, eg, Pollock and Maitland (n 4) 236. It will be seen in ch 3 that it is because of Australia’s status as a settled colony that the High Court could redefine the English doctrine of tenure in its application to Australia. 123   F Pollock and FW Maitland, The History of English Law Before the Time of Edward I, vol 2, 2nd edn (Cambridge, CUP, 1911) 1; Butt (n 12) para 412. 124   Simpson (n 9) 2–4; Stuckey (n 3) 107. 125   See above n 109.



The Feudal Basis of Land Law in England 21

i  Allodial Land126 The clearest example of the exceptions to the universal application of the doctrine of tenure was the continued presence of allodial landholding.127 In Domesday Book, the compilers were sometimes puzzled by a landholder who seemed to have no lord. The Norman Commissioners deemed that a large number of English tenants in Kent, Sussex, Surrey, Hampshire and Berkshire were alodiarii or aloarii and held in alodium.128 This was, however, assumed to arise rather from ignorance of the facts than from any exception to the doctrine of tenure.129 Some of the ‘old derivative tenures in thenage and drenage existed till the thirteenth century, proving very difficult to classify under the recognised division of tenures’.130 Very probably these were old survivals of folkland, which Vinogradoff has shown was an allodial system of customary landholding in which the land was held of no superior.131 Indeed, in Mabo, Brennan J went to the trouble of investigating the few instances of non-feudal land to be found in Britain today.132 Furthermore, although all English lawyers would agree that the present Queen holds her lands allodially,133 by the middle of the thirteenth century, it was by no means as clear as a patriotic English person might wish it to be that the King of England did not hold his kingdom of the Pope at an annual rental by virtue of King John’s surrender and Pope Innocent III’s regrant.134 Some medieval English Kings also did homage to the Kings of France, though no doubt claiming to do so merely for their duchies of Normandy and Aquitaine and other French possessions.135 ii  Recognition of Customary Law Rights to Land: Tenure in Ancient Demesne136 The continued recognition of customary law pre-dating the tenurial scheme also mitigated against the universal application of the doctrine of tenure. There was always a distinction between ancient demesne manors – manors which had been in the King’s hand ever since the Norman Conquest – and later additions to the royal estates, whether by escheat, forfeiture, purchase or any other means.137 The rule of evidence adopted to determine the time at which a manor must have been in the King’s hand in order to make it ancient demesne, was that no testimony was admissible save that of the Domesday

  This concept is examined further in ch 7.   Kolbert and Mackay (n 4) 28–29. See also HW Challis, The Law of Real Property: Chiefly in Relation to Conveyancing, 2nd edn (London, Reeves & Turner, 1892) 5. 128  Maitland (n 9) 153–54; Tabuteau, ‘Ownership and Tenure in Eleventh-Century Normandy’ (n 43) 114–15. 129   Maitland (n 9) 153–54; Simpson (n 9) 3. 130   Kolbert and Mackay (n 4) 12. Formally they had existed all over England: Stenton, The First Century of English Feudalism 1066-1166 (n 101) ch 4. 131   See above text to nn 18, 53ff. See also Vinogradoff, Villainage in England (n 105) 198–99; Kolbert and Mackay (n 4) 12. 132   They are to be found in parts of the Orkney and Shetland Islands: Mabo (n 1) 46 (Brennan J). 133   Kolbert and Mackay (n 4) 29. 134   Pollock and Maitland (n 4) 521. 135   Kolbert and Mackay (n 4) 29. 136   Customary law is further examined in ch 7 as a source of common law Aboriginal title. 137   Pollock and Maitland (n 4) 383–84; WS Holdsworth, A History of English Law, vol 3, 3rd edn, rewritten (London, Methuen & Co Ltd, 1923) 263–64. 126 127

22  Absolute Crown Ownership in Australia 1788–1992 Book: the privileged manors were those which the Domesday Book recorded as having belonged to King Edward.138 On ancient demesne land there existed three classes of tenants:139 in addition to ordin­ ary freeholders and villeins (copyholders), there was a class of customary tenants – villein socmen – who held by tenure in ancient demesne.140 Although villein socmen were villeins, they had many of the rights of a freeholder, including the right of appealing to the common law administered by the King’s court if the customary law as administered by the manorial court disregarded their title.141 Villein socmen are described by Bracton as being privileged villeins because their services were certain and they were protected not by the usual remedies at common law but by peculiar writs which enforced the custom of the manor.142 If disturbed in their landholding, tenants in ancient demesne were both individually protected against their lord by the little writ of right and collectively protected by the writ of monstraverunt.143 Thus, the distinguishing feature of tenure in ancient demesne was that it was put on a level with freehold regarding the protection it received from the royal courts,144 whereas ordinary copyhold was not protected at all by these courts.145 However, it also differed from ordinary freehold because land held by tenure in ancient demesne could not be conveyed by the general common law conveyances of feoffment but could only pass by 138   This was the only admissible evidence and it was conclusive: Acle (Manor of) (1306) YB 33–35 Edw I, RS p 309, 311; Burton (Abbot of) v Lancaster (Earl of) (1308–09) YB 2 & 3 Edw II, SS vol 19, p 59, 60; Lodelowe (Joan, widow of William de) and Laurence de Lodelowe and Robert (1337) YB 11 & 12 Edw III, RS p 159, 165; Vinogradoff (n 105) 90. However this may not always have been the rule: Pollock and Maitland (n 4) 399. 139   Although all three classes were affected by exceptional rules of public law which applied to the ancient demesne, ancient demesne is important in the history of land law due to the existence upon them of tenure in ancient demesne: Holdsworth, 3 History of English Law (n 137) 264. 140   ibid 264–65. See also J Scriven, A Treatise on Copyhold, Customary Freehold and Ancient Demesne Tenure, 5th edn (London, Butterworths, 1867) 423–34. The customary holders of lands within the ancient demesne manors held by what was in effect a distinct tenure. To ensure that mesne tenants were not prejudicially affected by the act of the tenant-in-chief, on the tenant-in-chief’s forfeiture or surrender to the Crown, the King was said to hold ut de honore rather than ut de corona and the tenants did not become technically tenants-in-chief: Estwick’s Case (1613) 12 Co Rep 135, 77 ER 1410 (KB) supported by the words of many royal grants (eg Charles I’s grants to Vermuyden ‘in free and common socage and not in chief’ as of the manor of Hatfield). cf Challis, The Law of Real Property: Chiefly in Relation to Conveyancing (n 127) 4 who insists that they did become tenants-in-chief. The distinction between ut de honore and ut de corona was taken as recently as 1922: Re Holliday [1922] 2 Ch 698 (Ch D). Bracton described this species of tenure under the name of ‘privileged villenage’ or ‘villein-socage’, the latter a name compounded out of both ‘the baseness of villenage in the nature of it’s services, and the freedom of socage in their certainty’: 2 Bl Comm 99. Megarry and Wade (n 110) 14, 28 classify the main tenures which existed at common law as free, unfree and miscellaneous (which included ancient demesne). 141   The customary law which these local courts administered was a very real thing. The law was administered in a manner and under forms which endeavoured to copy the manner and forms of the royal courts. It was the custom declared by the court which formed the main part of the law administered: Holdsworth (n 15) 378. 142  See Iveagh v Martin [1961] 1 QB 232 (QB) 262 (Paull J). See also Holdsworth (n 137) 265 and authorities cited at 265 fns 4, 5, 6. 143   The little writ of right close was the appropriate remedy for the individual tenant if he was disturbed in his holding. This writ was directed to the bailiffs or the lord, as the case may be, to do full right ‘according to the custom of the manor’ to the complainant. The case was heard in the court of the manor; but the proceedings of that court could be brought by the usual methods before the courts of the common law: Holdsworth (n 137) 265. See also Vinogradoff (n 105) 97–99. If there was any attempt to infringe the rights or increase the duties of the villein socmen of a manor of ancient demesne, they had the right (collectively in the first place) to a writ of monstraverunt, which was a complaint to the King that their rights had been infringed: Iveagh (n 142) 262 (Paull J). 144   If a freeman was wrongly deprived of his holding, he had the great writ of right patent. 145   Tenants holding in villeinage had no writ, either manorial or extra-manorial, for the protection or recovery of their holdings. Thus, the existence of the little writ of right and the writ of monstraverunt for villein socmen, narrowed the distinction between freehold and ancient demesne villeinage to one of ‘jurisdiction and procedure’: Vinogradoff (n 105) 96.



The Feudal Basis of Land Law in England 23

surrender to the lord: it was inalienable other than to the lord.146 While this was also the manner of conveying common copyholds, the important difference was that in surrenders of land in ancient demesne it did not state ‘“to hold at the will of the lord” but only “to hold according to the custom of the manor”’.147 Tenants in ancient demesne could not be compelled (like pure villeins) to relinquish their land at the lord’s will or to hold them against their own. The nature of the customary tenant’s holding was also substantial, amounting to the entire beneficial interest in the land: ‘In ancient demesne there [were] no subdivided and conflicting interests in the soil. The timber and minerals belong[ed] to the tenant’.148 Eventually it had to be decided whether or not tenants in ancient demesne were freeholders.149 Blackstone came to the ‘historically correct’ conclusion that these tenants were neither freeholders nor copyholders, but a tertium quid.150 Crucially, however, they had ‘an interest equivalent to a freehold’.151 In later times they were equated with freeholders152 and special rights enjoyed by tenants in ancient demesne have been upheld in recent times.153 The best explanation of this class of tenure, Holdsworth says, is ‘that it was a genuine survival from the days before the royal courts had grouped all tenures into the two classes of free and unfree’.154 There were many socmen before the Conquest whose services were various, who could not be classified under any of the types of tenure created by the common law.155 Not only did these tenants survive on the King’s manors,156 146   2 Bl Comm 100. cf Merttens v Hill [1901] 1 Ch 842 (Ch D) 853 where, referring to the description of tenure in ancient demesne contained in the third report of the Real Property Commissioners, Cozens-Hardy J denied that land held in ancient demesne passed by surrender and admittance. Note, however, that the report of the Real Property Commissioners really relates to socage tenure: see Megarry and Wade (n 110) 28 fn 57. 147   2 Bl Comm 101. 148   Merttens (n 146) 853 (Cozens-Hardy J). 149   The point at issue was the parliamentary franchise which was confined to freeholders: Holdsworth (n 137) 269. 150   2 Bl Comm 100. Blackstone’s conclusion was adopted by the judges: Holdsworth (n 137) 268, 269. In the early 15th century, however, the prevailing view was that socmen who used the little writ and conveyed their lands by feoffment were freeholders, while those who conveyed by the rod could not use the writ and were, therefore, villeins or copyholders: ibid 267. With respect to those tenants who conveyed by feoffment, this view prevailed: ibid 268; see also Merttens (n 146). There were, however, still tenants who used the little writ and yet conveyed by the rod, who held by the custom of the manor but not at the will of the lord. The original rule laid down in the early 15th century took no account of those who held in this manner. Although there was some authority for the view that they could be freeholders (Combes’s Case (1614) 9 Co Rep 75a, 77 ER 843 (KB); Holdsworth (n 137) 268), others denied them this title: Hunt v Burn (1701) 1 Salk 57, 90 ER 931 (KB); Holdsworth (n 137) 268. 151   2 Bl Comm 100. 152   Merttens (n 146) 853 (Cozens-Hardy J). Although Cozens-Hardy J adopted the description of tenure in ancient demesne contained in the third report of the Real Property Commissioners – a report which really relates to socage tenure (see above n 146) – he expressly stated that, in addition to the Report, he arrived at the conclusion that the freehold was in the tenants in ancient demesne (not in the lord of the manor) for several other reasons including that ‘[t]hey are called “free tenants” in very early documents . . . [and] [t[hey used the writ of right close, which seems to have been only available to freeholders’: ibid 853–54. 153   Iveagh (n 142); Simpson (n 9) 166. cf WS Holdsworth, An Historical Introduction to the Land Law (Oxford, Clarendon Press, 1927) 133. 154   Holdsworth (n 137) 266. See also Vinogradoff (n 105) 122–25. 155   Holdsworth (n 15) 72, 170, 201. According to Bracton, ‘[a]t the time of the Conquest, there were free men holding their lands freely, and by free services or free customs. When they were ejected by stronger people, they came back and received the same lands to be held in villainage and by villain services, which were specified and certain’: cited by Vinogradoff (n 105) 121 156   Holdsworth (n 137) 267. The command with which William the Conqueror is credited was to preserve the laws of King Edward in lands as in other things, with the addition of those which he had himself enacted: AJ Robertson (ed), The Laws of the Kings of England from Edmund to Henry I (Cambridge, CUP, 1925) 240; Windeyer, Lectures on Legal History (n 105) 39; Kolbert and Mackay (n 4) 11.

24  Absolute Crown Ownership in Australia 1788–1992 they also obtained legal protection against private lords on manors which had been alienated by the King.157 Tenure in ancient demesne is an example of how the common law has always made room for local custom in the context of recognising special rights over land.158 Indeed, copyhold tenure has its origins in the customary rights of Anglo-Saxon villeins. Although such rights were not initially protected in the common law courts, they eventually gained the status of a recognised form of tenure despite local custom remaining central to their content.159 iii  The Estate Pur Autre Vie Notwithstanding the implication, in the principle that the King is the lord of all land in England, that no land is or can be unowned, the law admitted one sphere within which rights in land could be acquired by occupation. The undoubted power of the English tenant for life to alienate when properly exercised, gave rise to the estate pur autre vie.160 When a tenant pur autre vie died during the life of the cestui que vie, the estate was not at an end for it was to endure throughout the autre vie; yet it could not revert to the latter, for this person had parted with all their interest in the land. The freehold reversioner or remainderman was kept out by the still existing estate.161 The estate was, therefore, left to the first comer162 who might take by the natural law title of occupatio.163 The common law recognised the acquisition of an original title by occupancy.164 Although the occupant was not the first to own the estate, his title to it was nonetheless original  Vinogradoff (n 105) 124; Holdsworth (n 137) 267 and authorities cited in fns 1, 2, 3.   Holdsworth also refers to customary variations in the conditions of tenure, such as gavelkind and borough English: Holdsworth (n 137) 259; Holdsworth, Historical Introduction (n 153) 131. 159   In 1588, the Court of King’s Bench allowed copyholders to use eiectio firmae and obtain specific recovery of their land: Melwich v Luter (1588) 4 Co Rep 26a, 76 ER 835 (KB); Simpson (n 9) 146–55. The action of ejectment was, however, never extended to tenants in ancient demesne: Holdsworth (n 137) 265. 160   The assignee held not for the period of his own life, but for the time of the alienor’s. This is on the principle nemo dat quod non habet, which had however been ignored in connection with the fee simple: see generally K McNeil, ‘A Question of Title: Has the Common Law been Misapplied to Dispossess the Aboriginals?’ (1990) 16 Monash University Law Review 91. 161   However, if the reversion or the remainder was in the Crown no one could enter as special occupant. Although the authorities differ in their reasons, there is general consensus that the maxim nullum tempus occurrit regi applies. In contradistinction to an ordinary reversioner, who would have had to enter to merge the pur autre vie estate with his own, in the case of the Crown this happened immediately upon the death of the tenant because no one could anticipate the Crown’s entry by entering first: McNeil (n 101) 12 fn 20 and authorities cited therein. 162   That is, it fell vacant and could be acquired by the first person to enter, who was called a ‘general occupant’: Co Litt 41b; 2 Bl Comm 259–60; Pollock and Maitland, 2 The History of English Law (n 123) 81; Holdsworth (n 137) 124. See also Bristow v Cormican (1878) 3 App Cas 641 (HL) 667. Although general occupancy in English law dates from at least the 15th century (Simpson (n 9) 92 fn 33) it was largely abolished by statute long ago: 2 Bl Comm 259–60; Holdsworth (n 137) 124–25; Holdsworth (n 153) 63. 163   The significance of acquisition of initial title to land by occupancy post-Mabo is discussed in ch 6. 164   Although most titles are derivative, it is axiomatic that there must be an original title, which may also be the first title, to any presently owned land: OW Holmes, Common Law (Boston, Little, Brown & Co, 1881) 245. The principal mode of acquiring title to land that belongs to no one is occupancy, ie the actual taking of possession: 2 Bl Comm 3–9; cf HS Maine, Ancient Law: Its Connection with the Early History of Society and its Relation to Modern Ideas, with Introduction and Notes by F Pollock (London, J Murray, 1920) 268ff. The fiction that, in English law, all land is held of the Crown has severely restricted the notion of acquisition of title by occupancy in respect of land. Consequently, this method of acquisition applies mainly to chattels: Sutton v Moody (1697) 1 Ld Raym 250, 91 ER 1063 (KB); Blades v Higgs (1865) 11 HLC 621, 11 ER 1474 (HL); Halsbury’s Laws (4th edn, 1973–87) vol 8, paras 1519–20. See also below nn 179–81 and text. 157 158



The Feudal Basis of Land Law in England 25

because rather than being derived from the former tenant, it arose directly from his entry and occupation.165 iv  Adverse Possession The high regard in England for the possessor as such has always militated against the full logical force of the doctrine of tenure for it cannot be maintained that all land rights are derived from the Crown if one can acquire an indefeasible title merely by camping in a field for the requisite period in clear violation of the rights of the King’s indirect nominee.166 There is no ‘positive prescription’ vesting the title in the squatter; the rights of the true owner are, in effect, completely destroyed.167 Thus, English law pays lip service to the proposition that all titles flow from the Crown by saying that no one acquires a positive title to land by lapse of time, yet allowing this de facto by effecting a complete bar to the true owner and everyone else from interfering with the squatter’s continued possession. v  Ecclesiastical Tenures Tenures of a purely ecclesiastical character168 were undoubtedly the nearest to the allodial and pre-feudal tenures.169 Land held by the Anglo-Saxon clergy as bookland passed through to the Norman era with at first even its name unaltered. It was finally merged in the feudal scheme of tenures in the course of the twelfth century.170 Many English churches are still in the hands of lineal successors of the original donees in pre-Conquest England. It is this continuity that created a problem for the Norman lawyers with their theory of the universal application of the doctrine of tenure.171 It was often claimed that these lands were held in absolute allodium, free from secular burdens. Some could even produce charters to this effect from William I’s Anglo-Saxon predecessors.172 Thus, a compromise was achieved: the Church came to agree that in theory it held frankalmoin 165   ‘[H]is title is by first occupation’: Co Litt 41b. See also P Bordwell, ‘Disseisin and Adverse Possession’ (1923) 33 Yale Law Journal 1, 141, 285, 290. cf J Goebel, The Struggle for the Falkland Islands: A Study in Legal and Diplomatic History, reprint (New York, Kennikat Press, 1971) 103. 166   So fundamental was this respect of English law for the adverse possessor that even when the system of land registration was introduced, a squatter acquired (on expiration of the limitation period) the equitable estate and could apply to be registered as proprietor: Land Registration Act 1925 (UK), s 75. Although legislation now provides greater protection for registered proprietors by ensuring that no period of adverse possession will, of itself, give a registered title to a squatter, it is still possible for a squatter to be registered in place of the registered proprietor: Land Registration Act 2002 (UK), Pt 9 and Sch 6. In Australia, all States recognise acquisition of title by adverse possession in the context of registered land: see, eg, Real Property Act 1900 No 25 (NSW), s 45D(1). Title by 60 years’ adverse possession against the Crown could also be acquired under the Crown Suits (Nullum Tempus) Act 1769 (9 Geo 3 c 16). This statute was held to apply in New South Wales in Attorney-General (NSW) v Love [1898] AC 679 (PC). 167   Since the enactment of the Real Property Limitation Act 1833 (UK) in England, the true owner’s title is extinguished: see now Limitation Act 1980 (UK), s 17. This approach has also been adopted in Australia: AJ Bradbrook, SV MacCallum and AP Moore, Australian Real Property Law, 4th edn (Sydney, Lawbook Co, 2007) para 17.15. 168   Frankalmoin and tenure by Divine Service. For details, see Littleton’s scheme for the classification of tenures (Co Litt 68a–116a) which has substantially been adopted ever since. Modern textbook classifications are mere simplifications of his treatment. 169   Pollock and Maitland (n 4) 241–42; Holdsworth (n 137) 34–36. 170   Pollock and Maitland (n 4) 62. Usually as frankalmoin. 171   Kolbert and Mackay (n 4) 39. 172   Pollock and Maitland (n 4) 60.

26  Absolute Crown Ownership in Australia 1788–1992 lands of the Crown but that no temporal services or even fealty could be claimed.173 The only control which the royal courts had over the matter in the twelfth and thirteenth centuries was that they insisted that whether the land was held in frankalmoin and, therefore, immune from their jurisdiction or not should be found as a fact by a lay tribunal.174 vi Summary Within strict feudal theory, title to land can and does exist both independently of any grant (as in the case of allodial landholding, title by occupancy of a vacant pur autre vie estate and title by adverse possession) and independently of the present sovereign’s grant (as in the case of tenure in ancient demesne and ecclesiastical tenures). Nevertheless, because the fictional explanation of the universality of feudal tenure encompasses Crown grants as well as original Crown ownership, the relevant grant is deemed in law to have been made.175 Allodial title, however, presents a problem. Because the very essence of allodial landholding is that the land is held of no superior, allodial title and the concept of Lord Paramount176 are, by definition, mutually exclusive. Allodial title is, therefore, the only true exception to the doctrine of tenure.177 Nevertheless, the essential point is that despite the legal fiction that all lands were originally possessed and thus owned by the Crown, the doctrine of tenure did not give the Crown an actual title to all land; the doctrine simply assured the Crown of its paramount lordship.178 Nonetheless, due to this fiction, the law restricted individuals from acquiring title to real property by occupancy and in this sense the Crown’s fictional title was very real.179 Indeed, in the context of title to land, the Crown has been referred to as ‘universal occupant’.180 This is, however, misleading if it is interpreted to mean that the Crown was the owner of all land for which no subject can show a title.181 Within the realm, it was clear that an individual could acquire an interest in land by occupancy in the case of a pur autre vie estate which had fallen vacant.

  Co Litt 95b; Kolbert and Mackay (n 4) 40.   This was the famous Assize Utrum: Pollock and Maitland (n 4) 246ff. See also Holdsworth (n 137) 25, 35. 175   McNeil (n 101) 82; McNeil, ‘A Question of Title’ (n 160) 106. 176   And, therefore, title derived from Crown grant. 177   Allodial landholding is further considered in ch 7. 178   See also McNeil (n 101) 107. Although McNeil argues that the doctrine of tenure can result in an actual title where land escheats to the Crown (ibid 80, 92) cf the analysis in ch 6 text to n 169. 179   McNeil (n 101) 11. The reason for this restriction was not that the common law prohibited the acquisition of other interests by this means, but that all lands in England were already owned: F Pollock and RS Wright, An Essay on Possession in Common Law (Oxford, Clarendon Press, 1888) 45. 180   R v Steel (1834) 1 Legge 65 (NSWSC) 66 (Forbes CJ); Mitchel v United States 34 US 711, 748 (1835) (USSC) (Baldwin J delivering the judgment of the Court); A-G v Brown (n 5) 318 (Stephen CJ delivering the judgment of the Court); Doe d Wilson v Terry (1849) 1 Legge 505 (NSWSC) 509 (Stephen CJ). 181   Notwithstanding support for the view – eg Williams v Attorney-General for New South Wales (1913) 16 CLR 404 (HCA) 439 – it has been authoritatively rejected in Bristow v Cormican (n 162) esp 667. See also Johnston v O’Neill [1911] AC 552 (HL). These authorities and the significance of acquisition of title by occupancy post-Mabo are discussed in ch 6. 173 174



Reception of Land Law into Australia 27

II  THE RECEPTION OF LAND LAW INTO THE AUSTRALIAN COLONIES

A  The English Doctrine of Tenure in 1788 By the time of the reception of English law into Australia the practical legal consequences of the idea of feudalism were minimal, yet in theory the jurisprudence of the common law could not be understood without recourse to the feudal idea.182 Although the Tenures Abolition Act 1660183 is often cited as marking the end of the strictly feudal period in English law by converting most tenures into free and common socage and prohibiting all other types of tenure being created in the future,184 the statute Quia Emptores Terrarum (Statute of Westminster III) 1290185 is better known and interesting. This Act was purported to be made in the interests of feudal lords who by excessive subinfeudation on the part of their tenants lost effective control of the feudal incidents. The statute was import­ ant for two reasons. First, it permitted every free person to alienate his interest in the whole or part of his land without his lord’s consent. Secondly, it provided that in future no alienation of land in fee simple was to be by way of subinfeudation but by way of substitution instead.186 The result of this statute was that no new tenure of any kind could be created in England except by the King.187 Thus, after 1290 the feudal pyramid began to crumble: the number of mesne lordships could not be increased, evidence of existing mesne lordships gradually disappeared, and most land came to be held directly from the Crown.188 182   Mabo (n 1) 45 –52 (Brennan J), 80, 81, 102–04 (Deane and Gaudron JJ), 122–23 (Dawson J), 180 (Toohey J); Stuckey (n 3) 107. 183   12 Car 2 c 24. Simpson (n 9) 23 uses the term ‘Statute of Tenure’ to designate this Act. cf Maitland, who considered that the Statute of Marlborough (52 Hen 3), enacted in 1267, in many ways marked the end of feudalism: FW Maitland and others, Equity: A Course of Lectures, 2nd edn (Cambridge, CUP, 1936) 336. 184   By s 7, the Tenures Abolition Act 1660 expressly safeguarded frankalmoin from its operation. When it was desired to convert the surviving examples of frankalmoin into socage in 1925, the appropriate part of s 7 of the 1660 Act was repealed: Administration of Estates Act 1925, Sch 2. The remnant of the Tenures Abolition Act was repealed by the Statute Law (Repeals) Act 1969, s 1, Sch, Pt III. Although the substantive provisions of the Tenures Abolition Act did not extend to frankalmoin, since Quia Emptores 1290, no new tenure could be created in frankalmoin save by the Crown. 185   18 Ed 1 c 1. For the text see Digby (n 12) 192–95. See also Pollock and Maitland (n 4) 337; Holdsworth (n 137) 80ff; Holdsworth (n 15) 348; Megarry and Wade (n 110) 30–32. 186   Quia Emptores operated only to prohibit an alienation in fee simple. Any less grant was not barred (eg of a fee tail: Segrave (Nicholas de) (1294) YB 21 & 22 Edw I, RS p 631, 641) nor did it apply to copyholds: Kolbert and Mackay (n 4) 101. The Statute of Quia Emptores remains law in Australia; however, three States repealed the statute and re-enacted it in simplified form: Imperial Acts Application Act 1969 (NSW), s 36; Imperial Acts Application Act 1980 (Vic), s 5 (repealing Quia Emptores) and Imperial Law Re-Enactment Act 1990 (Vic) (inserting a new Property Law Act 1958 (Vic), s 18A; Property Law Act 1974 (Qld), s 21. 187   18 Ed 1 c 1, s 2. See TFT Plucknett, The Legislation of Edward I – The Ford Lectures (Oxford, Clarendon Press, 1949) 106. 188   Since Quia Emptores and the Tenures Abolition Act were part of the laws of England which had been brought to the infant Australian colonies, subinfeudation was no longer possible by the time Australia was settled, and all land in Australia was, according to pre-Mabo orthodoxy, technically held directly of the Crown in free and common socage: Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (NTSC). Since the reception of English law, however, Australian legislative developments have resulted in a significant departure from the feudal origins of English land law and, in particular, the doctrine of tenure: see, eg, Hogg, ‘Effects of Tenure on Real Property Law’ (n 118); TP Fry, Freehold and Leasehold Tenancies of Queensland Law (St Lucia, University of Queensland Press, 1946); TP Fry, ‘Land Tenures in Australian Law’ (1946–47) 3 Res Judicatae 158; Edgeworth, ‘Tenure, Allodialism and Indigenous Rights at Common Law’ (n 112) esp 403–06; AR Buck, ‘Property Law and the Origins of Australian Egalitarianism’ (1996) 1 Australian Journal of Legal History 145; AR Buck, ‘Torrens Title, Intestate Estates and the Origins of Australian Property Law’ (1996) 4 Australian Property Law Journal 89.

28  Absolute Crown Ownership in Australia 1788–1992 Even before 1290, however, there is evidence of the disintegration of pure legal feudalism. Immediately following the Conquest, records suggest that the conveyancing of freehold interests in land was a matter between outgoing and incoming tenant.189 Only in copyhold lands was the practice of surrender and admission known, and this for different reasons. The absence of all recourse to the feudal lord on an alienation, as on a succession, undermined the very essence of feudalism: investiture.190 This prerequisite of pure feudalism was also jettisoned by the institution of the assize of novel disseisin in 1166191 which protected the ungranted interest of a new tenant.192 B  The Doctrine of Reception Notwithstanding that, in 1788, the feudal system in Britain had been significantly eroded, the feudal doctrine of tenure was received as part of the law of the Australian colonies and ‘unequivocally informed the articulation of Australian land law’.193 This was the result of the application of the principles of domestic and international law concerning the formation of new colonies.194 The distinction between a territory acquired by occupation/settlement, a territory acquired through treaty, and a territory acquired as a result of conquest was significant not only for the purpose of legitimising English rule in international law, but also for its consequences in English law. The international law of the eighteenth century195 recognised four196 ways of acquiring sovereignty over a new territory: by conquest, cession, occupation or annexation.197 The British acquisition of sovereignty over the colony of New South Wales was regarded as dependent upon the occupation of territory that was terra nullius.198 Initially, the doctrine of terra nullius was applied to the acquisition of   Stuckey (n 3) 107.  ibid. 191   See generally DW Sutherland, The Assize of Novel Disseisin (Oxford, Clarendon Press, 1973); McNeil (n 101) 18–20. 192   SE Thorne, ‘English Feudalism and Estates in Land’ [1959] Cambridge Law Journal 193, 199–201; SFC Milsom, The Legal Framework of English Feudalism (Cambridge, CUP, 1976) 45–47, 64; Stuckey (n 3) 107. cf JL Barton, ‘The Rise of the Fee Simple’ (1976) 92 Law Quarterly Review 108, 116–17. 193   Stuckey (n 3) 108. 194   AC Castles, An Australian Legal History (Sydney, Law Book Company, 1982) 32. 195   Although the acquisition of Australia occurred over 200 years ago, the inter-temporal rule requires that the analysis focus, not on contemporary rules of international law, but on the rules existing in the 1780s: I Brownlie, Principles of Public International Law, 7th edn (Oxford, OUP, 2008) 124–25. 196   cf NL Wallace-Bruce, ‘Two Hundred Years On: A Reexamination of the Acquisition of Australia’ (1989) 19 Georgia Journal of International and Comparative Law 87, 89 and authorities in fn 14 who states that there are five main modes of acquiring territory under international law: cession, occupation, prescription, accretion and conquest. 197   1 Bl Comm 104–05; E de Vattel, The Law of Nations; Or Principles of the Law of Nature; Applied to the Conduct and Affairs of Nations and Sovereigns, Translated from the French, (Northampton (Mass), Printed by Thomas M Pomroy for S & E Butler, 1805) 158ff; K Roberts-Wray, Commonwealth and Colonial Law (London, Stevens & Sons Ltd, 1966) 99ff. 198   That is, land belonging to no one. ‘Terra Nullius’ ‘derives from classical Roman law under which the doctrine of “Occupatio” acted to confer title upon the discoverer of an object that was “res nullius”, that is, “belonged to nobody”’. In post-Renaissance Europe, this doctrine was ‘conveniently and analogously’ applied in inter­ national law to the acquisition of territory by states: D Ritter, ‘The “Rejection of Terra Nullius” in Mabo: A Critical Analysis’ (1996) 18 Sydney Law Review 5, 7. See also G Simpson, ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence’ (1993) 19 Melbourne University Law Review 195, 203–05; U Secher, ‘The High Court and Recognition of Native Title: Distinguishing between the Doctrines of Terra Nullius and “Desert and Uncultivated’’’ (2007) 11 University of Western Sydney Law Review 1. 189 190



Reception of Land Law into Australia 29

new territory which was uninhabited.199 Gradually, however, the doctrine was extended to justify acquisition of inhabited territories by occupation if the land was uncultivated or its Aboriginal inhabitants were not ‘civilised’ or not organised in a society that was united permanently for political action.200 The confusion of sovereignty and ownership, political power and property rights, is, therefore, responsible not only for the fiction of original Crown ownership201 but also for the extension of the terra nullius doctrine. Although such confusion raises important questions about the very foundation of such an extension,202 prior to the decision in Mabo Australia was presumed, at the international level, to have been an empty uninhabited land in the extended legal sense.203 Indeed, while this classification was questioned by the Mabo High Court, it was not disturbed.204 The crucial point is that, although the doctrine of terra nullius is a well-established concept of international law, it is not a concept of the common law.205 Nevertheless, the doctrine has a common law counterpart in the ‘desert and uncultivated’ doctrine206 which classified inhabited land as uninhabited for the purpose of the doctrine of reception. The common law doctrine determining the law in force in a newly acquired territory depended upon the manner of its acquisition by the Crown. In 1722, the Privy Council recognised a distinction between conquered or ceded and settled territories in terms of the law which governed the new possession.207 In the case of a settled colony, 199   In this context, ‘uninhabited territory’ means ‘uninhabited territory that is also not under the control of any sovereign’: MF Lindley, The Acquisition and Government of Backward Territory at International Law: being a Treatise on the Law and Practice relating to Colonial Expansion (London, Longmans, Green & Co, 1926) 10. See also Ritter, ‘The “Rejection of Terra Nullius” in Mabo: A Critical Analysis’ (n 198) 7. 200   Ritter (n 198) 7. Although opinions differed about exactly what types of inhabited land could be treated as terra nullius, ‘all the expanded definitions . . . shared the common feature of explicit ethnocentricity’: ibid 8. Emmerich de Vattel, one of the most influential writers on the law of nations, argued that as a principle of natural law, wandering tribes could only be treated as owning property when they appropriated certain portions of earth to render them fertile and to derive sustenance from them. It followed that no country could lay claim to more of the land than it could use: Vattel, The Law of Nations (n 197) 160–61. See also JM Bennett and AC Castles, A Sourcebook of Australian Legal History (Sydney, Law Book Company, 1979) 250–52. Reynolds argues that although Vattel’s writings offered a justification for colonising part of the continent, they did not justify the expropriation of the whole continent: H Reynolds, The Law of the Land (Ringwood, Victoria, Penguin Books, 1987) 18. 201   See above text to n 121. 202   Though the matter cannot be pursued here, if, to use the words of Brennan J in Mabo (n 1) 52, the ‘fallacy of equating sovereignty and beneficial ownership of land’ gave rise to the enlarged doctrine of terra nullius, this may, post-Mabo, provide a basis for allowing the appropriate court to reconsider and retrospectively reject the doctrine. 203   This view was expressed in a number of cases: MacDonald v Levy (1833) 1 Legge 39 (NSWSC) 45; McHugh v Robertson (1885) 11 VLR 410 (VicSC) 431. See also Cooper v Stuart (1889) 14 App Cas 286 (PC) 291. Since Mabo, this assumption is, of course, no longer part of the common law: see ch 3 text to n 104. 204   Although it will be seen that the High Court did in fact reject the common law counterpart of the doctrine of terra nullius, the Court did not reject the doctrine of terra nullius in any sense of denying Australian sovereignty, which remains unjusticiable: see ch 3 text to n 106. See also Secher, ‘The High Court and Recognition of Native Title’ (n 198). 205   RH Bartlett, The Mabo Decision (Sydney, Butterworths, 1993) ix; Ritter (198) 8. See also ch 3 text to n 94ff. 206   The phrase is Blackstone’s: 1 Bl Comm 104 and is discussed in Mabo (n 1) 34–37 (Brennan J); Western Australia v The Commonwealth (1995) 183 CLR 373 (HCA) 427 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). Note, however, that in Mabo Brennan J actually uses the phrase ‘desert uninhabited’: Mabo (n 1) 34. 207  In Case 15–Anonymous (1722) 2 P Wms 75, 75; 24 ER 646, 646 (Ch) it was held that ‘if there be a new and uninhabited country found out by English subjects, as the law is the birthright of every subject, so, wherever they go, they carry their laws with them, and therefore such new found country is to be governed by the laws of England’. See also 1 Bl Comm 104–05; BH McPherson, ‘The Mystery of Anonymous (1722)’ (2001) 75 Australian Law Journal 169. In Milirrpum (n 188) Blackburn J considered that Blackstone’s doctrine was

30  Absolute Crown Ownership in Australia 1788–1992 the common law of England became the law of the colony in so far as it was applicable to colonial conditions.208 A different position prevailed if a country was ceded or conquered. In that case, the law in force at the time of cession or conquest remained in force unless and until it was altered by or under the authority of the sovereign.209 At common law, the only category of land that could be acquired by settlement was land that was found to be ‘desert and uncultivated’.210 However, just as the categories of land that were terra nullius under international law were expanded to embrace certain inhabited land, ‘desert and uncultivated’ land under the common law was expanded to include land that was inhabited. Indeed, the extended meaning of ‘desert and uncultivated’ was the result of the common law’s acceptance of the international law doctrine of terra nullius.211 Consequently, judicial classification of inhabited land as desert and uncultivated was justified on the basis of similar criteria justifying the expanded version of terra nullius.212 It has already been noted that the source of this justification lay in the confusion of sovereignty and property.213 The common law concept of acquiring territory by ‘settlement’ is, therefore, analogous to the international law mode of acquiring territory by ‘occupation’; land that can be lawfully acquired by settlement at common law is the equivalent of territory that is regarded as terra nullius in either its narrow or extended senses at international law. Accordingly, the concept of terra nullius (as opposed to the doctrine) has two limbs: it applies to questions of sovereignty (at international law) and to questions of property (at common law). The basis on which the common law of England was received as the law of the colony of New South Wales was that Australia was settled.214 Although this classification should have meant that English law applied in New South Wales on settlement of the colony,215 the colony’s character as a penal settlement raised doubts as to the extent to which English law applied in the colony.216 These doubts were settled in 1828 when the British Parliament passed the Australian Courts Act:217 so much of the English land law of 1828 settled beyond doubt in 1788 for settled colonies: Roberts-Wray, Commonwealth and Colonial Law (n 197) 540–41. 208   Case 15–Anonymous (1722) 2 P Wms 75, 24 ER 646 (Ch). See also 1 Bl Comm 104–05; Roberts-Wray (n 197) 540–41. The received English law of a colony included both the unwritten law (common law and equity) and the statute law in force at the time of settlement. English statute law subsequently enacted only applied if it was specifically extended to the colony: J Chitty, A Treatise on the Law of the Prerogatives of the Crown; and the Relative Duties and Rights of the Subject (London, Joseph Butterworth and Son, 1820) 32–33. 209   Case 15–Anonymous (n 208). See also 1 Bl Comm 105; Roberts-Wray (n 197) 541–42. In Campbell v Hall (1774) Lofft 655, 98 ER 848 (KB), where the law of a ceded colony was in question, the Court treated the doctrine as stated by Blackstone as settled beyond doubt. See also ch 3 text to n 212. 210   According to Blackstone’s classic exposition: 1 Bl Comm 104. 211   Mabo (n 1) 41 (Brennan J); Butt (n 12) paras 102, 2506. 212   In the context of Australian Aborigines, the two most important elements were the ‘established law’ approach combined with a ‘vague criterion of nomadism’: McNeil (n 101) 121. 213   See above n 201. 214   This identification of New South Wales as a settled territory was confirmed by the Privy Council in Cooper v Stuart (n 203) 291. That South Australia came into the same category, as a matter of law, has been held by the Supreme Court of that State: White v McLean (1890) 24 SASR 97 (SASC). It will be seen in ch 3 that the High Court has confirmed that Australia was settled; the new element introduced by the majority of the High Court was the rejection of the common law classification of inhabited land as ‘desert and uncultivated’ for the purpose of the doctrine of reception. 215   1 Bl Comm 104. 216   HV Evatt, ‘The Legal Foundations of New South Wales’ (1938) 11 Australian Law Journal 409, 421; Butt (n 12) para 102. 217   9 Geo 4 c 83, s 24. See State Government Insurance Commission v Trigwell (1979) 142 CLR 617 (HCA) 625, 634.



Reception of Land Law into Australia 31

as was applicable to the colonial conditions of New South Wales, and ultimately all the Australian colonies,218 became the basis of Australian land law. Although a number of commentators have suggested that the English system of land tenure was never appropriate to describe the legal nature of landholding in Australia,219 the first expression of feudalism by the courts of the Australian colonies220 made it clear that there was no question that the feudal principle was applicable to Australia.221 Accordingly, the maxim that all land is held, either mediately or immediately, of the Crown applied in Australia as did the legal fiction justifying this feudal theory. The twofold fiction that all lands in the realm were once in the hands of the King and that all titles were originally derived from royal grants was as fundamental to the application of the common law doctrine of tenure in Australia as it was in England. Accordingly, Australian courts took judicial notice of the fact that the Crown was the legal owner of all land in Australia at the time of settlement in 1788. There was no doubt, therefore, that the waste lands in the colonies were originally owned by the British Crown.222 Importantly, however, judicial opinion was divided on the question of the source of such ownership: it was regarded as either a consequence of the feudal principle223 or as acquired by occupancy.224 Moreover, it appears that these two sources of Crown title to land were not treated as mutually exclusive. Notwithstanding a conclusion that the Crown had an actual title by occupancy, it was invariably held that the same result could be arrived at by adopting the feudal fiction.225 The weight of opinion of the early New South Wales Supreme Court appears to support occupancy rather than the feudal fiction as the basis of the Crown’s title to land.226 Pre-Mabo, however, the High Court had not specified the source of the Crown’s original title to all land in the Australian colonies.227 Nevertheless, in either event the consequence was considered to be the same: ‘the lands of Australia became the property of the 218   From 25 July 1828, the date of the enactment of the Australian Courts Act 1828 (Imp), the two colonies of New South Wales and Van Diemen’s Land were placed on the same footing as any other settled colony. Queensland and Victoria were originally part of New South Wales and, therefore, the same date applies in those states for the reception of English law. South Australia and Western Australia adopted a different date for the reception of English law; English law was taken to have been received as at the date of the settlement of the colonies: 28 December 1836 for South Australia and 1 June 1829 for Western Australia (see Acts Interpretation Act 1915 (SA), s 48; Interpretation Act 1918 (WA), s 43). 219   See, eg, Edgeworth (n 112) 398; S Hepburn, ‘Feudal Tenure and Native Title: Revising an Enduring Fiction’ (2005) 27 Sydney Law Review 49; Bradbrook, MacCallum and Moore, Australian Real Property Law (n 167) para 1.10. See also Mabo (n 1) 46 (Brennan J), 81 (Deane and Gaudron JJ). 220   R v Farrell (1831) 1 Legge 5 (NSWSC); MacDonald v Levy (n 203); R v Steel (n 180); Hatfield v Alford (1846) 1 Legge 330 (NSWSC); A-G v Brown (n 5); Doe d Wilson (n 180). 221   For the post-Mabo position see ch 3 text to n 19ff. 222   A-G v Brown (n 5) 316, 317 (Stephen CJ delivering the judgment of the Court). See also the authorities cited below nn 223, 224. 223   Williams (n 181) 439 (Isaacs J); New South Wales v The Commonwealth (1975) 135 CLR 337 (HCA) 439 (Stephen J); Milirrpum (n 188). 224   R v Steel (n 180) 68–69 (Forbes CJ); Hatfield (n 220) 336 (Stephen CJ), 345 (Dickinson J); A-G v Brown (n 5) 316, 318 (Stephen CJ delivering the judgment of the Court); Doe d Wilson (n 180) 508–09 (Stephen CJ); Williams (n 181) 428 (Barton ACJ); Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 (HCA) 71 (Windeyer J, Dixon CJ concurring) approving Stephen CJ’s treatment of the matter in A-G v Brown. The implications of the Mabo decision for both of these sources of the Crown’s title are examined in ch 6. 225   A-G v Brown (n 5) 318, 324 (Stephen CJ delivering the judgment of the Court); Council of the Municipality of Randwick v Rutledge (n 224) 71 (Windeyer J, Dixon CJ concurring) approving Stephen CJ’s treatment of the matter in A-G v Brown. See also NSW v Commonwealth (n 223) 438–39 (Stephen J). 226   See above n 224. 227   For the post-Mabo position see chs 3 and 6.

32  Absolute Crown Ownership in Australia 1788–1992 King of England’.228 Since the Crown was the ultimate proprietor of all lands, it was assumed that all titles, rights and interests in land must be the direct consequence of Crown grants.229 It was also assumed that, as a result of the feudal principle, the Crown was the proprietor of all land for which no subject could show a title.230 Indeed, the universal acceptance of the doctrine of tenure in Australia precluded any consideration of rights in land which did not owe their existence to a Crown grant until as recently as 1968–71, when Milirrpum v Nabalco Pty Ltd231 was decided.232 i  Milirrpum v Nabalco Pty Ltd: Non-Feudal Rights in Land Before the decision in Mabo, the only reported Australian decision dealing directly with the merits of an Aboriginal claim to particular traditional tribal land was Milirrpum, a decision by Justice Blackburn (a single judge of the Supreme Court of the Northern Territory). For the first time in Australian legal history, it was argued that ‘at common law, communal occupation of land by the aboriginal inhabitants of a territory acquired by the Crown is recognised as a legally enforceable right’.233 On the basis of his examination of what had happened in the various jurisdictions where English law had been applied, Blackburn J concluded that the doctrine of communal native title has no place in a settled colony except under express statutory provision.234 It will be seen in Part II that this was because Blackburn J applied the ‘recognition doctrine’ as opposed to the ‘doctrine of continuity’.235 Moreover, he observed that the same conclusion must be drawn from earlier Australian cases dealing with the issue of the Crown’s original title to land.236 This was because such decisions: [A]ll affirm the principle, fundamental to the English law of real property, that the Crown is the source of title to all land; that no subject can own land allodially, but only an estate or interest in it which he holds mediately or immediately of the Crown. On the foundation of New South Wales, therefore, and of South Australia, every square inch of territory in the colony became the property of the Crown. All titles, rights and interests whatever in land which existed thereafter in subjects of the Crown were the direct consequence of some grant from the Crown.237

For Blackburn J, therefore, the plaintiffs could not succeed because they could neither point to any grant from the Crown as the basis of the title which they claimed (as required by the received feudal doctrine of tenure) nor show that there was a doctrine in their favour (the doctrine of continuity)238 which in Australia co-existed in some manner   NSW v Commonwealth (n 223) 439 (Stephen J) citing A-G v Brown (n 5) 317–20.   R v Steel (n 180) 68–69 (Forbes CJ); Hatfield (n 220) 336 (Stephen CJ), 345 (Dickinson J); A-G v Brown (n 5) 316, 317–18 (Stephen CJ delivering the judgment of the Court); Doe d Wilson (n 180) 508–09 (Stephen CJ); Williams (n 181) 428 (Barton ACJ), 439 (Isaacs J); Milirrpum (n 188) 244–45 (Blackburn J); NSW v Commonwealth (n 223) 439 (Stephen J). 230   Williams (n 181) 439 (Isaacs J). 231   Above n 188. 232   Mr Woodward, counsel for the plaintiffs, conceded that the plaintiffs’ contention was a ‘novel one in an Australian Court’: Milirrpum (n 188) 150, 199. 233   Milirrpum (n 188) 198. 234   ibid, 217, 262, 201–44. See also McNeil (n 101) 293. 235   See ch 3 text to n 118ff. See also Secher (n 198). 236   Milirrpum (n 188) 245. 237  ibid. 238   This doctrine and the recognition doctrine are discussed in ch 3 text to n 112ff. 228 229



Reception of Land Law into Australia 33

with the dominium of the Crown.239 It appears that Blackburn J assumed that the doctrine of tenure of itself gave the Crown title to all land in Australia irrespective of the Aboriginal inhabitants. It has, however, already been seen that despite the legal fiction that all lands were originally possessed and owned by the Crown, the doctrine of tenure did not give the Crown an actual title to all land; the doctrine simply assured the Crown of its paramount lordship.240 Furthermore, it has been seen that because the fictional explanation of the doctrine of tenure encompasses Crown grants as well as original Crown ownership, where necessary, a relevant grant is deemed in law to have been made.241 Nevertheless, it may be that Blackburn J regarded the doctrine of tenure and its accompanying two-fold fiction as applying only to interests in land that were capable of forming the subject matter of a Crown grant; that is to ‘proprietary’ interests in land. In such circumstances, his Honour’s finding that the interest claimed by the plaintiffs failed to satisfy any of the essential elements of a proprietary interest at common law would have prevented a grant being deemed to have been made.242 The controversial nature of the decision in Milirrpum led to it being strongly criticised by many writers as being wrong in law in respect of the findings that New South Wales was a settled colony; that the doctrine of communal native title was not part of the Australian common law; and that the plaintiffs’ relationship with the land did not constitute a proprietary interest.243 Prior to Mabo, there were also indications that, were the matter to come before the High Court, aspects of Blackburn J’s decision would be reconsidered. As early as 1972, in Administration of Papua and New Guinea v Daera Guba,244 Barwick CJ, after citing Milirrpum, observed (albeit in obiter) that legislative acts confirming the customary title of the Papuans were not inconsistent with the traditional result of acquisition of a territory by settlement, viz the Crown acquired the ultimate title to land subject to the usufructuary title of the inhabitants.245 In 1979 the High Court suggested that the correctness of the decision in Milirrpum was an ‘arguable question if properly raised’246 and in 1987 the High Court referred to it as ‘a question of fundamental importance’.247 Until 1992, however, Blackburn J’s decision stood as authority that, at common law, the effect of the doctrine of tenure meant that Australian Aborigines had no legal title to their traditional lands as they were not claiming a derivative title from the Crown.248   Milirrpum (n 188) 245ff.   See above text to nn 178, 119. 241   McNeil (n 101) 82; McNeil (n 160) 106. 242   For an alternative source of common law Aboriginal title to land see ch 7. 243   For general critiques of the decision see: J Hookey, ‘The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia’ (1972) 5 Federal Law Review 85; LJ Priestley, ‘Communal Native Title and the Common Law: Further Thoughts on the Gove Land Rights Case’ (1974) 6 Federal Law Review 150; B Hocking, ‘Does Aboriginal Law Now Run in Australia?’ (1979) 10 Federal Law Review 161; RH Bartlett, ‘Aboriginal Land Claims at Common Law’ (1983) 15 University of Western Australia Law Review 293; MC Blumm and J Malbon, ‘Aboriginal Title, the Common Law and Federalism: A Different Perspective’ in MP Ellinghaus, AJ Bradbrook and AJ Duggan, The Emergence of Australian Law (Sydney, Butterworths, 1989) 27–43. Among the most vocal of critics was the historian Henry Reynolds, who, in his book, The Law of the Land (n 200), raised questions about the correctness of the vesting of ownership in the Australian continent in the British Crown. 244   Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 (HCA) 397. 245   ibid 397. 246   Coe v Commonwealth (1979) 24 ALR 118 (HCA) 129–30 (Gibbs J with whom Aickin J agreed). See also ibid 135 (Jacobs J), 137 (Murphy J). 247   Northern Land Council v Commonwealth (No 2) (1987) 75 ALR 210 (HCA) 215. 248   This situation was remedied, to some extent, in the Northern Territory by the enactment of the first Commonwealth land rights legislation in 1976: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). 239 240

34  Absolute Crown Ownership in Australia 1788–1992

III CONCLUSION

The doctrine of tenure has not always been an element of the English law of land. In the period preceding the Norman Conquest, there was not one and the same law for every parcel of land. Land was impressed with different legal qualities and conditions, though its condition was not unchangeable. Separate property in land was well known and the oldest, and for a long time the normal, form of Anglo-Saxon landholding was folkland: an allodial system of customary landholding in which land was held of no superior. The notion that all property was the King’s arose after the Conquest. Indeed, the principal result of the Norman Conquest upon the customary law of land was the development of the feudal doctrine of tenure. The various modes in which land was held before the Conquest disappeared. The great idea that marked landholding after the Conquest was the paramount lordship of the King; ownership was thereafter derived from the royal hand, all landright was of the King. In order to justify the overall lordship of the King, the two-fold fiction that the King originally owned all land and that all titles to land were originally derived from Crown grant was invented. The traditionally recognised exceptions to the doctrine of tenure made it clear, however, that title to land continued to exist independently of any actual Crown grant. Although the fiction of original Crown grant explained some of these traditional exceptions to feudal tenure, the presence of allodial landholding (instances of which still exist in Britain today) is inconsistent with the notion of any grant, actual or otherwise. Nevertheless, it is clear that, pre-Mabo, the feudal doctrine of tenure and its supporting two-fold fiction was regarded as applicable to describe the legal nature of landholding in Australia. This view was based upon the common law of England being received as the law of Australia because of the designation of Australia as ‘settled’ for the purpose of the common law doctrine of reception. This classification was itself dependent upon the common law classification of Australia as ‘desert and uncultivated’ territory notwithstanding the actual presence of Aboriginal inhabitants. The meaning of ‘desert and uncultivated’ territory at common law was justified upon similar criteria justifying the enlarged version of the international law doctrine of terra nullius, which was itself the basis upon which British sovereignty was acquired over the Australian continent. Like the position in England, therefore, the received doctrine of tenure was regarded as a doctrine of universal application in Australian land law. Indeed, the universal acceptance of the doctrine prevented common law recognition of non-feudal rights in land, such as native title. Whether based upon the feudal fiction or upon the common law doctrine of occupancy, the Crown’s original title ‘as the foundation and source of all other titles’ was a matter of judicial cognisance.249 The traditional understanding of the English doctrine of tenure was, therefore, not disturbed at common law.250 It will be seen in chapter three, however, that in 1992 the High Court’s decision in Mabo struck at the Equivalent measures were subsequently adopted in a number of other Australian jurisdictions: see Hocking, ‘Does Aboriginal Law Now Run in Australia?’ (n 243) 180 fns 25 and 27, 183 fn 40; G Nettheim, ‘The Relationship Between Native Title and Statutory Title under Land Rights Legislation’ in MA Stephenson (ed), Mabo: The Native Title Legislation – A Legislative Response to the High Court’s Decision (St Lucia, University of Queensland Press, 1995) 183–200. 249   A-G v Brown (n 5) 317 (Stephen CJ delivering the judgment of the Court). 250   See above n 228ff.



Conclusion 35

root of the theory of feudal tenure. The development of feudal tenure, and indeed the present structure of English and Australian land laws, can, nevertheless, be traced in the customary law of land before the Norman Conquest. Thus, it will be seen in subsequent chapters,251 that pre- or non-feudal conceptions of landholding have assumed a renewed relevance in the context of Australian land law post-Mabo. The crucial point is that pre-Mabo, the English doctrine of tenure precluded recognition of Aboriginal rights in land which were not derived from Crown grant. Upon settlement, the Crown acquired absolute beneficial ownership of all land in Australia. It followed that any concept of a lesser title on the part of the Crown, a radical title, was simply regarded as inapplicable in the Australian land law context. The Crown’s radical title had, however, been recognised in cases decided in other colonial jurisdictions and, significantly, by the Australian High Court when considering the legal effect of the British annexation of Papua New Guinea. Thus, before examining the High Court’s conception of the Crown’s radical title and concomitant restatement of the common law as it applies to Aboriginal land rights, the next chapter considers the meaning attributed to the concept of radical title on the basis of pre-Mabo authority.

  See especially chs 3, 4, 6 and 7.

251

2 The Meaning of Radical Title Pre-Mabo

T

HE PRECEDING CHAPTER made it clear that, pre-Mabo,1 the effect of the English doctrine of tenure in Australia was that, upon settlement, the Crown acquired absolute beneficial ownership of all land in Australia. This proposition was axiomatic: any concept of a lesser title, a radical title, was therefore irrelevant in the Australian context. Although cases decided in other colonial jurisdictions before Mabo had recognised the Crown’s radical title, the meaning of the term was not definitively explained. Consequently, it will be seen in the next chapter that it was possible for the majority judges in Mabo to attribute a meaning of something less than absolute bene­ ficial ownership to the term, while the sole dissenting judge attributed a meaning of nothing less than absolute beneficial ownership to the term. It will also be seen that the essence of Mabo lies in changing ‘Crown title’ to ‘potential Crown title’. By abolishing the rule that the British Crown became notional owner of Australia upon settlement and substituting the rule that settlement merely gave the Crown radical title to the land, the opportunity to become owner, the Mabo High Court made it clear that the Crown had to take further steps to become the owner. It has, however, generally been assumed that the Crown only had to take further steps to become owner in the case of land subject to native title.2 Indeed, there is High Court obiter suggesting that land which is both unalienated and unoccupied belongs to the Crown because there is ‘no other proprietor’.3 Nonetheless, it will be shown that this assumption fails to appreciate the significance of the historical meaning of radical title (the subject of this chapter) and the High Court’s identification of radical title as both the postulate of the doctrine of tenure and a concomitant of sovereignty (the subject of chapters three and four).4 This, and the following two chapters, therefore, present and argue the thesis that, at common law, the requirement that the Crown must exercise its sovereign power before the underlying radical title of the Crown converts to full beneficial ownership is not limited to land subject to pre-existing native title. Accordingly, investiture of radical title, without more, does not automatically confer on the Crown beneficial ownership of any unalienated land; residuary rights to land which has previously been alienated but not appropriated to the Crown; or land in respect of which pre-existing native title has expired or been surrendered to the Crown.5 This is crucial: it provides a basis for recog  Mabo v Queensland (No 2) (1992) 175 CLR 1 (HCA).   See, eg, RD Lumb, ‘The Mabo Case: Public Law Aspects’ in MA Stephenson and S Ratnapala (eds), Mabo: A Judicial Revolution – The Aboriginal Land Rights Decision and Its Impact on Australian Law (St Lucia, University of Queensland Press, 1993) 1, 11. 3   Mabo (n 1) 48 (Brennan J). 4   ibid 50. 5   The implications for this thesis of the various Australian State and Territory statutory regimes governing the alienation of land are considered in U Secher, ‘Implications of the Crown’s Radical Title for Statutory 1 2



The Meaning of Radical Title Pre-Mabo 37

nising common law land rights on the part of Aboriginal people occupying such land. Furthermore, although a native title claim to such land may not be supported (and could not be where native title has expired or been surrendered), a common law claim to the same land may be. The germ of this thesis lies in Maitland’s argument, 115 years ago,6 that in England no two legal ideas were more distinct from each other than that of governmental power and that of proprietary right. For Maitland, ‘[t]he sovereign of Great Britain . . . is not the owner of Great Britain’.7 Maitland attributed to the sovereign a power analogous to the concept of ‘eminent domain’, a legal concept which he borrowed from American jurisprudence on state property acquisition. The eminent domain of the state is neither ownership nor any mode of ownership; it is not a proprietary right, but merely a governmental supervisory power. According to Maitland, only if sovereignty was confused with ownership would every inch of the soil of England belong to the King:8 a proposition echoed by Brennan J in Mabo when analysing the juridical nature of radical title.9 Maitland argued that the abolition of the ‘antique dogma’ that all land is ‘held of’ the King could be accomplished without any perceptible revolution in the practical rules of English law.10 Thus, he conceived a sovereign power analogous to the concept of eminent domain as being applicable in respect of England notwithstanding that the basic tenet of the doctrine of tenure that all land is held of the Crown was and remains a fundamental assumption of English real property law.11 In the context of Aboriginal land rights, Geoffrey S Lester’s doctoral thesis, ‘The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument’,12 has also greatly influenced the argument advanced in this work.13 In conformity with the Mabo High Court, Lester concluded that in inhabited settled territories Aboriginal titleholders have legal rights to land that are enforceable against the Crown unless and until these rights have been lawfully abrogated.14 More importantly, however, Lester questioned the conventional view that in settled territories Aboriginal title amounts to a mere burden on the underlying proprietary title to land which the Crown has generally been assumed to have acquired along with sovereignty. Lester did not, Regimes Regulating the Alienation of Land: “Crown Land” v “Property of the Crown” Post-Mabo’ (2008) 34 Monash University Law Review 9. See also ch 6 text to n 195ff. 6   ie 1897. 7   FW Maitland, Domesday Book and Beyond – Three Essays in the Early History of England (Cambridge, CUP, 1897) 342. See also AJ Bradbrook, SV MacCallum and AP Moore, Australian Real Property Law, 4th edn (Sydney, Lawbook Co, 2007) 39 fn 27 citing U Secher, ‘The Meaning of Radical Title: The Pre-Mabo Authorities Explained – Part 1’ (2005) 11 Australian Property Law Journal 179, 181–83. 8  Maitland, Domesday Book (n 7) 342. 9   Mabo (n 1) 50–51. cf Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (NTSC) 245. 10  Maitland (n 7) 342. 11   It will be seen in ch 3 that in light of the High Court’s redefinition of the doctrine of tenure in Mabo, Maitland’s analysis is especially appropriate in the Australian land law context where English feudal theory that sovereignty and property are fused no longer applies. 12   GS Lester, The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument (DJuris thesis, York University, 1981). Lester’s thesis was cited by Brennan J in Mabo (n 1) 39. It is summarised by DW Elliott, ‘Aboriginal Title’ in BW Morse (ed), Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada (Ottawa, Carleton University Press, 1991) 48, 100, 110–11. 13   Kent McNeil was also inspired by Lester’s work: see K McNeil, Common law Aboriginal Title (Oxford, Clarendon Press, 1989) 3. 14   Lester argued that the Crown could not abrogate the rights of Aboriginal titleholders in the absence of their consent. This conclusion is the result of his interpretation of the scope of the prerogatives that apply in a settled colony: see ch 3 text to n 144ff.

38  The Meaning of Radical Title Pre-Mabo however, go far enough: by limiting his argument to land which is inhabited by Aborigines who have a cognisable lex loci, he concluded that ‘where the territory is not occupied by any aboriginal inhabitants who have a lex loci . . . the Crown will take absolutely’.15 Significantly, however, Richard H Bartlett has gone further: although not expanding on his position, he has expressed the view that: [E]ven in the absence of the existence of native title to a territory at the acquisition of sovereignty beneficial ownership does not vest in the Crown. The Crown merely holds radical title until some other act of appropriation occurs.16

It will be argued that investiture of radical title in the Crown creates no beneficial entitlement to the land to which it relates; it is no more than political or governmental power which enables the sovereign to grant interests in land and to appropriate ownership of land to itself. When the Crown acquired sovereignty over land in Australia, it did not necessarily follow that it also held the land in demesne. The Crown merely acquired a right to acquire and grant title, a right to acquire a present proprietary title and to hold in demesne. As a legal concept, therefore, radical title must connote a bare legal title rather than a full unfettered proprietary right except to the extent of native title. As a postulate of the doctrine of tenure, radical title is merely a bare legal title sufficient to support that doctrine. As a concomitant of sovereignty, radical title is merely a bare legal title to support the sovereign’s power of alienation over the whole of the national territory and its power to acquire a plenary title to particular land.17 Consequently, the Crown’s initial title to land does not stand in the way of recognising common law rights as against the Crown to land occupied by Aboriginal people. Moreover, the common law status of such property rights would ensure that they are less vulnerable to extinguishment than native title rights. The question is whether this analysis can be supported in light of relevant authorities and legal principle. As this chapter is concerned with the meaning of radical title pre-Mabo, it starts by (re)examining the leading Privy Council authorities on the nature of the Crown’s title to land which is subject to pre-existing Aboriginal title. Although the received view is that these decisions are authority for the proposition that the Crown has a present proprietary estate underlying Aboriginal title, it will be seen that an alternative interpretation is open: an interpretation which supports the proposition that the Crown’s radical title does not automatically confer absolute beneficial ownership of any land, irrespective of the presence of pre-existing rights. It will also be seen, in particular by reference to American authority, that the reason for concluding that the Crown holds the unalien15  Lester, The Territorial Rights of the Inuit of the Canadian Northwest Territories (n 12) 1067. Similar comments by the Mabo High Court will be considered in ch 4. The importance of the proposition that the Crown does not automatically acquire beneficial ownership of any land upon assumption of sovereignty will be seen in the context of common law Aboriginal customary title discussed in ch 7. 16   RH Bartlett, Native Title in Australia, 2nd edn (Australia, LexisNexis Butterworths, 2004) para 12.3. See also ibid paras 12.1–12.2. 17   Thus, contrary to the received view, the Crown’s undoubted power of alienation is divorced from the assumption that the Crown holds all lands absolutely: see generally ch 4, ch 3 text to nn 144, 273ff. See also Bradbrook, MacCallum and Moore, Australian Real Property Law (n 7) 36 fn 6 (citing U Secher, ‘The Doctrine of Tenure in Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction” – Part 2’ (2006) 13 Australian Property Law Journal 140), 39 fn 27 (citing U Secher, ‘The Doctrine of Tenure in Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction” – Part 1’ (2006) 13 Australian Property Law Journal 107), 40 fn 31, 41 fn 35 (citing Secher, ‘The Doctrine of Tenure in Australia Post-Mabo’ – Parts 1 and 2).



The Meaning of Radical Title 39

ated and unoccupied lands of a settled colony in demesne18 is the confusion of inter­ national law and municipal law, sovereignty and property. Indeed, in this context, the crucial point is that the Crown’s power to grant land over which it has sovereignty is not dependent upon ownership of the land. Finally, it will be seen that, contrary to the orthodox view, not only is New Zealand authority directly relevant in the context of an inhabited settled colony, but such authority supports the inchoate nature of the Crown’s property rights upon acquisition of sovereignty. I  THE MEANING OF RADICAL TITLE: THE LEADING PRIVY COUNCIL AUTHORITIES (RE)EXAMINED19

Although the phrase ‘radical title’ first appears in Attorney-General for Quebec v Attorney-General for Canada,20 when used by the Privy Council to describe the Crown’s interest in land which is subject to pre-existing Aboriginal title,21 it has its origins in St Catherine’s Milling and Lumber Co v R.22 As a result of subsequent Privy Council approval in Amodu Tijani v Secretary, Southern Nigeria,23 St Catherine’s has profoundly influenced judicial understandings of both the nature of the Crown’s title to land which is subject to pre-existing Aboriginal title and the character of Aboriginal title itself.24 Indeed, the generally accepted view is that Privy Council decisions prior to Mabo consistently held that radical title is a ‘substantial and paramount estate, underlying the [native] title, which became a plenum dominium wherever that title was surrendered or otherwise extinguished’.25 By reference to the leading decisions of the Judicial Committee in St Catherine’s, Amodu and Re Southern Rhodesia,26 however, it will be shown that an alternative reading of the pre-Mabo Privy Council authority on the nature of the Crown’s title to land which is subject to pre-existing Aboriginal title suggests that it was not based upon the assumption that the Crown’s title is prima facie equivalent to absolute ownership. A  St Catherine’s Milling and Lumber Co v R The question in this case was whether the Crown in right of the province of Ontario or the Crown in right of Canada had the plenary legal title to certain lands in northwestern Ontario. Prior to 1873, the disputed lands had been in Indian occupation under the   For the definition of this term see Introduction n 9.   See also U Secher, ‘The Meaning of Radical Title: The Pre-Mabo Authorities Explained – Part 1’ (2005) 11 Australian Property Law Journal 179; U Secher, ‘The Meaning of Radical Title: The Pre-Mabo Authorities Explained – Part 2’ (2005) 11 Australian Property Law Journal 209. 20   Attorney-General for Quebec v Attorney-General for Canada [1921] 1 AC 401 (PC) (Star Chrome case). 21   ibid 406 (Duff J delivering the judgment of the Board). See also Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 (PC) 403; Bartlett, Native Title in Australia (n 16) para 12.1. 22   St Catherine’s Milling and Lumber Co v R (1888) 14 App Cas 46 (PC). 23   Above n 21. 24   This authority has been cited in virtually every case in which the rights of Canadian Aborigines have been discussed: see Lester (n 12) 981. 25   St Catherine’s (n 22) 55 (cited with approval in Star Chrome case (n 20) 409–10, Amodu (n 21) 403). See also R Bartlett, ‘The Wik Decision and Implications for Resource Development’ (1997) 16 Australian Mining & Petroleum Law Journal 27, 34. 26   Re Southern Rhodesia [1919] AC 211 (PC). 18 19

40  The Meaning of Radical Title Pre-Mabo Royal Proclamation of 1763. Pursuant to a formal treaty in 1873, the Indians surrendered their rights arising under the Royal Proclamation to the Government of Canada. The appellant lumber company cut timber on the disputed lands without authority from the Ontario Government. Accordingly, the Ontario Government sued for an injunction and damages. The appellants justified their actions by setting up a licence from the Canadian Government which had been issued to them on the assumption that the beneficial interest in the lands had passed to Canada as a result of the Treaty of 1873. Before the Judicial Committee,27 the fundamental question of the origin of the Crown’s proprietary rights in the land in dispute was answered by Lord Watson, delivering the judgment of the Board, in the following terms: The capture of Quebec in 1759, and the capitulation of Montreal in 1760, were followed in 1763 by the cession to Great Britain of Canada and all its dependencies, with the sovereignty, property, and possession, and all other rights which had at any previous time been held or acquired by the Crown of France. A royal proclamation was issued on the 7th of October, 1763, shortly after the date of the Treaty of Paris, by which His Majesty King George erected four distinct and separate Governments, . . . specific boundaries being assigned to each of them.28 (emphasis added)

Thus, the plenary title of the Crown had been acquired by conquest and cession under the Treaty of Paris; full title did not vest by operation of the law on the basis of either occupation or the doctrine of tenure. Furthermore, although the disputed land had been in Indian occupation from the date of the Royal Proclamation until 1873, the Judicial Committee held that any legal rights that the Indians could claim to the land could only be ascribed to the provisions of the Royal Proclamation.29 This instrument was interpreted as showing that the tenure of the Indians ‘was a personal and usufructuary right, dependent on the goodwill of the Sovereign’.30 Accordingly, Lord Watson explained that ‘for the purposes of this case’, it appeared sufficient to say: [T]hat there ha[d] been all along vested in the Crown a substantial and paramount estate, underlying the Indian title [arising by force of the Proclamation], which became a plenum dominium whenever that title was surrendered or otherwise extinguished.31

When considering the real question for decision in the case, namely whether the Crown in right of Ontario or the Crown in right Canada had title to the land, Lord Watson observed that at the time of the unification of the provinces of Ontario and Quebec, then known as Upper and Lower Canada, into the one province in 1840 it was enacted, inter alia, that in consideration of certain annual payments which Her Majesty had agreed to accept by way of civil list, the produce of all territorial and other revenues at the disposal of the Crown arising in either of the united provinces, should be paid into the consolidated fund of the new province.32 Lord Watson explained that there was no transfer to the province of any legal estate in the lands, which continued to be vested in 27   Although the courts in Canada found in favour of the province of Ontario, the 11 Canadian opinions rendered in this case revealed fundamental disagreement over the legal nature of the Crown’s right to the land and how the Crown acquired those rights: for an analysis of these different views see Secher, ‘The Meaning of Radical Title – Part 1’ (n 19) fn 33; Lester (n 12) 982 fn 9. 28   St Catherine’s (n 22) 53. Accord Attorney-General v Cain [1906] AC 542 (PC) 543. 29   St Catherine’s (n 22) 54. 30  idid. 31   ibid 55. 32   ibid: 3 & 4 Vic c 35.



The Meaning of Radical Title 41

the sovereign; but all moneys realised by sales or in any other manner became the property of the province.33 In other words, all beneficial interest in such lands within the provincial boundaries belonging to the Queen, and either producing or capable of producing revenue, passed to the Province, the title still remaining in the Crown. That continued to be the right of the Province until the enactment of the British North America Act, 1867.34 (emphasis added)

The case maintained for Canada was that the 1867 British North America Act transferred to Canada all interest in Indian lands which previously belonged to the province.35 In this context, the Judicial Committee concluded that the key section of the Act was section 109. This section provided that: [A]ll lands, mines, minerals, and royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick, at the union, and all sums then due or payable for such lands, mines, minerals, or royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick, in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the Province in the same.36

The Privy Council found that this section was sufficient to give to each Province, subject to the administration and control of its own Legislature, the entire beneficial interest of the Crown in all lands within its boundaries, which at the time of the union were vested in the Crown.37 (emphasis added)

Accordingly, had the Indians been the owners in fee simple of the land when they surrendered and ceded their rights to Canada by the treaty of 1873, it might have been possible to hold38 that Ontario could derive no benefit from the cession in respect of the land that was not vested in the Crown at the time of the union in 1867.39 As noted, however, the Judicial Committee found that this was not the character of the Indian interest:40 any legal rights the Indians had could only be ascribed to the provisions of the 1763 Royal Proclamation. Significantly, the terms of this Proclamation showed that the Indians had merely a personal and usufructuary right dependent on the sovereign’s goodwill.41 Consequently, the Crown had all along had a present proprietary estate in the land upon which the Indian title was a mere burden. The ceded land was at the time of the union vested in the Crown, although subject to ‘an interest other than that of the Province in the same’ within the meaning of section 109.42 As a result of the cession in 1873, therefore, that land, in terms of section 109, belonged to the Crown in right of Ontario.43 Since Canada had acquired no title to the land pursuant to the treaty,44 it had no title to the timber on such lands which it could license to the appellants. The appeal was dismissed.  ibid.  ibid. 35  ibid. 36   Cited in ibid 57. 37  ibid. 38   On the authority of Attorney-General of Ontario v Mercer (1883) 8 App Cas 767 (PC). 39   St Catherine’s (n 22) 58. 40  ibid. 41   ibid 54. See also above n 30 and text. 42   St Catherine’s (n 22) 59. 43   ibid 58–59. 44   And s 91(24) of the British North America Act did not confer a proprietary right to the lands reserved within the meaning of that section, it merely conferred a legislative power. 33 34

42  The Meaning of Radical Title Pre-Mabo Although the British North America Act gave to each province the entire beneficial interest in all the land within the boundaries which at the time of the union in 1867 were vested in the Crown, those lands themselves remaining vested in the Crown, the Act was silent on the question of which lands were actually vested in the Crown at the time of the union.45 It is also clear from the Judicial Committee’s reasoning that although the Crown had a substantial and paramount estate all along, this present proprietary estate did not vest by force of the British North America Act, nor by discovery or as a result of the doctrine of tenure. Instead, the Crown’s title amounted to a vested plenary title (or plenum dominium) because, in respect of the disputed land, the Indians had no cognisable or enforceable rights under the French law (apart from statute)46 with the result that the French King had the entire beneficial estate and the Crown acquired that estate derivatively by conquest and cession.47 Thus, although St Catherine’s is authority for the proposition that, on its facts, the Crown’s title to the disputed land amounted to a present proprietary estate underlying the Indian title as defined by the Royal Proclamation, it did not decide that the Crown’s radical title is necessarily a full proprietary estate underlying any pre-existing title which is recognised by the common law (and is thus not authority for such a view).48 Nor did it decide that the Crown’s radical title is necessarily a plenary title in respect of any territory irrespective of the territory’s constitutional status and irrespective of the existence of pre-existing rights (and is thus not authority for such a proposition).49 In St Catherine’s, the plenary title vested in the Crown as a result of two factors relating to the territory in question. First, apart from statute, the Indians had no cognisable rights under the French law. Secondly, and more importantly, the French King had the entire beneficial estate which the British Crown acquired derivatively, by conquest and cession.50 This latter principle, that the acquiring sovereign takes beneficially only that which the former sovereign had beneficially,51 is also illustrated in the leading decision of the Judicial Committee in Amodu.52 B  Amodu Tijani v Secretary, Southern Nigeria This appeal concerned a cession of land to the British Crown. In 1861, the island of Lagos was acquired by a treaty between the African sovereign and the Crown. The   As at 1 July 1867.   St Catherine’s (n 22) 54–55; above nn 29, 40 and text. See also Lester (n 12) 983, 987; E Blake, The Ontario Lands Case: Argument of Mr Blake, QC, Before the Privy Council (Toronto, Press of the Budget, 1888) 47–48; Secher, ‘The Meaning of Radical Title – Part 1’ (n 19) text to fn 51. cf Calder v Attorney-General of British Columbia [1973] SCR 313 (SCC) discussed in ch 8 text to n 91; R v Côté [1996] 3 SCR 139 (SCC) [44], [46], [49] (Lamer CJ); R v Adams [1996] 3 SCR 101 (SCC) [33] (Lamer CJ) where the Supreme Court of Canada expressly left open the status of Aboriginal land rights under French law. 47   That is, Indian (or Aboriginal) title was not recognised by the common law because there were no facts upon which the doctrine of continuity could operate. Indeed Lester suggests that the recognition doctrine applied: Lester (n 12) 987. 48   See also Lester’s analysis (n 12) 989. St Catherine’s (n 22) was applied in Star Chrome case (n 20). 49   Although Lester agrees with the first proposition, he disagrees with the second. This is, however, simply because his analysis is limited to land which is inhabited by Aborigines who have a recognisable lex loci: see above n 15. 50   See also Lester (n 12) 988. 51   cf the Crown’s prerogative power to acquire new territory by act of State: see ch 3 text to n 209ff. 52   See above n 21. See also Oyekan and Others v Adele [1957] 2 All ER 785 (PC) 789 (Lord Denning, delivering the opinion of the Judicial Committee). 45 46



The Meaning of Radical Title 43

question for decision was whether the appellant had any rights or title to certain land on Lagos, and if so, the basis upon which the appellant’s entitlement to compensation for an involuntary taking of this land by the Crown pursuant to the Public Lands Ordinance 1903 should be calculated.53 The appellant, as head chief of the Oluwa community and one of the Whitecap chiefs of Lagos, claimed compensation on the basis of absolute ownership of the lands. In the Divisional Court, Speed CJ held that, in light of the facts as he understood them, the only right of the appellant was a ‘seigneurial right giving the holder the ordinary rights of control and management of the land, in accordance with the well-known principles of native law and custom’.54 Accordingly, compensation should be calculated on that basis and not on the basis of absolute ownership of the land.55 Although Speed CJ’s decision was affirmed by the Full Court,56 on appeal to the Judicial Committee the Board took a different view of the facts. Viscount Haldane, who delivered the judgment of the Board,57 made the preliminary observation that in interpreting native title to land, not only in Southern Nigeria but other parts of the British Empire, much caution is essential.58 His Lordship explained: There is a tendency, operating at times unconsciously, to render that title conceptually in terms which are appropriate only to systems which have grown up under English law. . . . As a rule, in the various systems of native jurisprudence throughout the Empire, there is no such full division between property and possession as English lawyers are familiar with. A very usual form of native title is that of a usufructuary right, which is a mere qualification of or burden on the radical or final title of the [native] sovereign where that exists. In such cases the title of the [native] sovereign is a pure legal estate, to which beneficial rights may or may not be attached. But this estate is qualified by a right of beneficial user which may or may not assume definite forms analogous to estates, or may, where it has assumed these, have derived them from the intrusion of the mere analogy of English jurisprudence.59

Thus, it was in the context of the native sovereign’s rights that the concept of radical title was examined. Nevertheless, the legal nature of the appellant’s native title to the land had to be established in order to determine the amount of compensation due under the Ordinance in question. On the relationship between the rights acquired by the Crown under the 1861 treaty of cession and the appellant’s rights under his native title, Viscount Haldane observed: As the result of cession to the British Crown by former potentates, the radical title is now in the British Sovereign. But that title is throughout qualified by the usufructuary rights of communities, rights which, as the outcome of deliberate policy, have been respected and recognized.60 (emphasis added)

  Amodu (n 21) 400 (Viscount Haldane, delivering the judgment of the Judicial Committee).  ibid 402. 55   Amodu Tijani v Secretary, Southern Provinces (1915) 3 NLR 24 (Div Ct); Amodu (n 21) 408. 56   Amodu Tijani v Secretary, Southern Provinces (1918) 3 NLR 35 (NigSC). 57   Viscount Haldane, Lord Atkinson, Lord Phillimore. 58   Amodu (n 21) 402–03. 59   ibid 403 cited in Mabo (n 1) 49–50 (Brennan J). Deane and Gaudron JJ also referred to part of this dictum in Mabo (n 1) 87. 60   Amodu (n 21) 404. This principle was followed by the Privy Council in Sobhuza II v Miller [1926] AC 518 (PC) 525. See also Mabo (n 1) 56–57 (Brennan J). 53 54

44  The Meaning of Radical Title Pre-Mabo The Judicial Committee allowed the appeal on the ground that the courts below had taken an erroneous view of the appellant’s rights under his native law.61 Lord Haldane pointed out that the ‘title to land occupied by a native community’62 was: [P]rima facie based, not on such individual ownership as English law has made familiar, but on a communal usufructuary occupation, which may be so complete as to reduce any radical right in the [Native] Sovereign to one which only extends to comparatively limited rights of administrative interference.63

Although this dictum may appear to imply that radical title confers some substantive rights, at least rights greater than ‘rights of administrative interference’, the distinction which Lord Haldane subsequently drew between radical title and proprietary rights clearly denies such a conclusion. The ‘Whitecap’ chiefs64 had beneficial title to their own lands held in demesne, but the rest of their territories were held beneficially by their subjects.65 Consequently, when they ceded their territories to the British Crown, there was no doubt a cession, along with the sovereignty, of the radical or ultimate title to the land, in the new colony, but this cession appears to have been made on the footing that rights of property of the inhabitants were to be fully respected. . . . Where the cession passed any proprietary rights they were rights which the ceding king possessed beneficially and free from the usufructuary qualification of his title in favour of his subjects.66

Thus, the Privy Council clearly distinguished between the Native Sovereign’s radical title and proprietary rights. It followed that the Crown acquired only those rights which the ceding Sovereign could pass.67 These were rights of sovereignty, the radical title, and any beneficial rights held by the ceding sovereigns to their demesne lands. The Crown did not, however, acquire a beneficial estate to the whole of the ceded territory.68 In the case of a ceded territory, therefore, the particular former sovereign’s title must be examined in order to determine what rights the Crown has acquired derivatively. In Amodu, it was held that the effect of the cession of 1861 was that ‘the ownership rights of private landowners . . . were left entirely unimpaired, and as freely exercisable after the Cession as before’.69 The Judicial Committee concluded that ‘[a] mere change in sovereignty is not to be presumed as meant to disturb rights of private owners; and the general terms of a cession are prima facie to be construed accordingly’.70 The subsequent   Amodu (n 21) 408–09.   ibid 409. 63   ibid 409–10. Although Deane and Gaudron JJ refer to part of this dictum in Mabo (n 1) 87, their Honours do so in the context of defining the acquiring sovereign’s title rather than the Native sovereign’s title. See also Mabo (n 1) 186, 195 (Toohey J). 64   At the beginning of the 18th century, the island of Lagos was held by a chief called Olofin who parcelled out the island among 16 subordinate chiefs, called ‘Whitecap’ in recognition of their dominion over the portions parcelled out to them: Amodu (n 21) 406. 65   ibid. See also Lester (n 12) 1041–42. 66   Amodu (n 21) 407. See also Lester (n 12) 1042. 67   This situation must be distinguished from the situation in Mabo (n 1), where the Crown’s rights were not acquired from a former sovereign: see below text in para immediately following n 121. 68   The Judicial Committee concluded that ‘it [was] not admissible to conclude that the Crown is generally speaking entitled to the beneficial ownership of the land as having so passed to the Crown so as to displace any presumptive title of the natives’: Amodu (n 21) 407. See also Lester (n 12) 1042. 69   Amodu (n 21) 407 quoting with approval Osborne CJ’s conclusions in Oduntan v Attorney-General of Southern Nigeria 2 Nig LR 77 (NigSC). 70   Amodu (n 21) 407. 61 62



The Meaning of Radical Title 45

introduction of the system of Crown grants was, therefore, to be regarded as having been brought about mainly, if not exclusively, for conveyancing purposes, and not with a view to modifying existing substantive rights.71 Consequently, the provisions of the Ordinance providing that where lands required for a public purpose are the property of a native community, ‘the Head chief of such community may sell or convey the same for an estate in fee simple’,72 meant that the appellant was able to convey a full native title of usufruct, and not merely rights of control and management. Accordingly, ‘adequate compensation for what was conveyed must be awarded for distribution among the members of the community entitled’.73 The decision in Amodu is important for two reasons. First, it illustrates the principle that the acquiring sovereign takes beneficially only the beneficial interest held by the former sovereign.74 In this context, the previous assumption that the Crown held Lagos in fee was rejected75 and required the enactment of a series of statutes to resolve the resultant uncertainty.76 Secondly, and the crucial point established by Amodu, is that whatever the meaning of the formula ‘radical’ or ‘ultimate’ title, that title is not necessarily a full proprietary estate.77 Although in some circumstances it may be, as for example in St Catherine’s,78 this does not necessarily follow, it depends on all the circumstances. In the case of a ceded territory, such as both St Catherine’s and Amodu, this depends particularly on the legal nature of the former sovereign’s title. The question then is: what is the position where there is no derivative acquisition of title from a former sovereign, for example, in the case of a settled colony, including both an uninhabited settlement and an inhabited settlement?79 Although Amodu does not address the situation where the Crown’s rights are not acquired from a former sovereign, it will be seen in the next chapter that the High Court in Mabo made it clear that where the constitutional status is one of settlement of an inhabited territory, the Crown does acquire a radical title to all the land, albeit not from a former sovereign. Furthermore, the Privy Council in Amodu contemplated that there could be a situation where a former sovereign did not have a radical title80 or, if it did, that radical title could be so minimal as to entail only comparatively limited rights of administrative interference. It will be shown that the case of an inhabited settled colony is the paradigm case for radical title not conferring a present proprietary estate in land on the new sovereign. This is because the meaning of radical title turns on the distinction between imperium and dominium; or between sovereignty and property rights. In this context, therefore, the Crown’s radical title in an inhabited settled colony is analogous to the position of the Crown’s title in a conquered territory (or for that matter any derivative territorial acquisition) where there   ibid 408, 404.   Public Lands Ordinance of 1903, para 6. See also Amodu (n 21) 405, 408. 73   Amodu (n 21) 408. 74   See Lester (n 12) 1039. 75  In Attorney-General of Southern Nigeria v John Holt & Company (Liverpool) Ltd [1915] AC 599 (PC) it had been assumed and not questioned that the Crown had a full beneficial title to the whole of the territory ceded in 1861, subject to the African title that had survived in accordance with the doctrine of continuity. 76   See Lester (n 12) 1044. 77   ibid 1039. 78   ibid. See also Star Chrome case (n 20) where the Privy Council applied St Catherine’s (n 22). 79   That is, a settlement whether uninhabited in fact or ‘legally uninhabited’. A ‘legally uninhabited’ settlement refers to the situation where, at the time of settlement, although the colony is inhabited the law ignores such inhabitants for the purpose of acquiring sovereignty: see ch 3 text to n 93ff. 80   Amodu (n 21) 403: ‘the radical or final title of the [Native] sovereign where that exists’ (emphasis added). 71 72

46  The Meaning of Radical Title Pre-Mabo is no radical title in the former sovereign or where the former sovereign’s radical title is not in issue, as, it will be seen, was the case in Southern Rhodesia.81 C  Re Southern Rhodesia The question raised by this reference concerned the ownership of certain unalienated lands in Southern Rhodesia.82 Significantly, the property rights of the Indigenous inhabitants were not in issue.83 Rather, the dispute was between the British South Africa Company and the Legislative Council of the colony, as representative of the Crown. In 1914, the Council passed a resolution denying that the Company was the owner of the unalienated lands in question.84 This contention was disputed by the Company, and the parties referred the question whether the resolution was well founded to the Judicial Committee.85 The Company’s claim to ownership of the unalienated land was based on a number of administrative arrangements made between the Colonial Office, on behalf of the Crown, and the Company. Under this special administrative system, although the Company would administer the country and enable its orderly development and settlement, the sovereignty of the African ruler, King Lobengula, was recognised by the Crown. Thus, the source of the Company’s capacity to administer and govern, subject to the Crown’s directions, was the governing sovereign of the country, King Lobengula. It was not long before this administrative arrangement, resting on the assumption of jurisdiction by the Crown within the territorial sovereignty of a native ruler yet subject to the recognition of his rights as such, was found to be unsuitable to the condition of the country. Bodies of warriors, known as ‘impis’, were sent out by the King for the purpose of attacking neighbouring tribes. In one such raid, the Company’s settlement at Victoria was penetrated and white settlers were threatened. Consequently, the Company raised a force of volunteers and restored order under circumstances which amounted to a conquest.86 Lobengula withdrew and although his intentions and whereabouts were unknown for some time, it was eventually discovered that he had died. With the death of Lobengula, there was no native sovereignty under which the Company could exercise administration.87 Eventually, an agreement was entered into between the Crown and the Company88 to extend the existing system of administration, with such modifications as considered necessary.89 Consequently, the Company as the administrator of the territory, claimed to be the owner of the unalienated lands.   See above n 26.   The reference was pursuant to an Order in Council of 16 June 1914 for hearing and consideration under 3 & 4 Will 4 c 41, s 4. The area known as the ‘unalienated lands’ referred to land which the Company had never granted estates or interests to others in. The unalienated lands consisted partly of native reserves, partly of land in the Company’s own occupation for ranching and other purposes, and partly of country altogether waste and unsettled: Southern Rhodesia (n 26) 213. 83   The Africans’ legal advisors were unable to collect sufficient evidence of their land use and occupancy to enable the Africans to make out a claim to the unalienated lands on the facts: see Lester (n 12) 1023. 84   Southern Rhodesia (n 26) 229–30. 85   ibid 230. 86   ibid 220–21. 87   ibid 222. 88   Dated 23 May 1894. 89   Southern Rhodesia (n 26) 225. 81 82



The Meaning of Radical Title 47

The Council and the Crown were ad idem on all the issues in dispute,90 bar one. The Council contended that the unalienated lands were the property of the Crown and not of the Company, but that even the Crown’s power of dealing with them was now limited.91 They argued that if and when the Company’s administration came to an end, the possession and disposition of the lands would not revert to the Crown, but the Company’s successors in the administration would ipso facto be entitled to the lands then remaining unalienated as administrative assets for the country’s benefit.92 However, Lord Sumner, delivering the report of their Lordships,93 considered it sufficient to say: [E]xcept in so far, if at all, as the rights of the Crown are subject to those of the natives and the Company, nothing has been shown to have happened or to have been done that would prevent the Crown, if and when the Company’s tenure of the administration of Southern Rhodesia determines, from disposing of the lands then remaining unalienated by any lawful means and in favour of any persons or purposes as it may duly be advised.94 (emphasis added)

This statement is significant in light of the Judicial Committee’s findings, discussed below, on the question of property rights in the unalienated lands. Lord Sumner stressed that the present case raised ‘positive questions as to ownership’ and not merely rights of possession.95 Accordingly, if their Lordships were not satisfied that the unalienated lands were the property of the Company it was their duty to say so.96 It was in this context that the Judicial Committee had to ascertain what the Company’s rights were in order to decide whether or not they amounted to ownership.97 Because the Company was in possession of the unalienated lands, it argued that its possessory title was superior to that of the Crown.98 One of the primary arguments relied upon by the Company was that the Crown had not formally annexed the land in question. This want of formality meant that the regions had never belonged to the Crown and that the Crown had deliberately disinterested itself in regard to their ownership.99 Because the Crown had not become formally entitled to the land, it could not be said to have legal possession of the unalienated lands enforceable against the Company. The Company contended, therefore, that if no one had a better title than the Company, the inchoate title consisting of occupation was for present purposes property enough.100 Thus, the Company’s main submission was based on a familiar principle: although the Crown might have sovereignty over land, it does not necessarily follow that it also owns it as property and holds it in demesne.101 The Company’s argument based upon the absence of a documentary title such as a formal proclamation of annexation was, however, rejected. Lord Sumner explained:   Except in immaterial respects: ibid 231.  ibid. 92  ibid. 93   Earl Loreburn, Lord Dunedin, Lord Atkinson, Lord Sumner, Lord Dickson. 94   Southern Rhodesia (n 26) 232. cf Attorney-General (NSW) v Brown (1847) 1 Legge 312 (NSWSC) discussed in ch 4. 95   Southern Rhodesia (n 26) 239. See also ibid 230. 96   ibid 230. 97   ibid 230–31. 98   ibid 230. As the case was not an action of ejectment or a controversy depending on the onus of proof, possession alone did not avail: ibid. See also McNeil, Common law Aboriginal Title (n 13) 158 fn 119. 99   Southern Rhodesia (n 26) 239. 100   ibid. See also Lester (n 12) 1023. 101   Lester (n 12) 1024. 90 91

48  The Meaning of Radical Title Pre-Mabo No doubt a Proclamation annexing a conquered territory is a well-understood mode in which a conquering Power announces its will urbi et orbi. It has all the advantages (and the disadvantages) of publicity and precision. But it is only declaratory of a state of fact. In itself it is no more indispensable than is a declaration of war at the commencement of hostilities. As between State and State special authority may attach to this formal manner of announcing the exercise of sovereign rights, but the present question does not arise between State and State. It is one between sovereign and subject.102

This dictum is crucial, emphasising that the questions in the reference pertained to property rights (dominium) and not to sovereignty (imperium).103 Although the fact of sovereignty and the circumstances under which it was acquired are significant and assist in determining what the Crown’s rights were and how far, if at all, the Crown conferred rights over the land on the Company, in itself and by itself sovereignty is not title.104 Thus, although the conquest and restoration of order had been carried out by the Company, the conquest had been made on behalf of the Crown and enured to its benefit.105 Consequently, the Crown’s failure to annex immediately did not constitute a renunciation of all right to annex at any time, or mean that a disposition of the public lands in the conquered territories as ample as if a formal annexation had taken place was less operative than if that form had been employed.106 For Lord Sumner, the correct view was that, if when the protecting power became the conquering power and, under the administrative arrangements set up by its own authority, it appointed an administrator and sanctioned a land system of white settlement and of native reserves, it was intended that the Crown should assume and exercise the right to dispose of the whole of the land not then in private ownership, then it made itself owner of the land to all intents and purposes as completely as any sovereign can be the owner of lands which are publici juris. Accordingly, the forms of an annexation to itself followed by a grant and conveyance to others for the purpose of grants over to settlers did not avail by their presence or their absence to affect the substance of these acts of State.107

Although Lord Sumner concluded that the Crown could, without formal annexation, be to all intents and purposes owner as completely as any sovereign can be the owner of lands which are publici juris, what did this mean? While the Judicial Committee appears, prima facie, to have defined property rights in terms of sovereignty, did it necessarily follow that the Crown had a present proprietary estate in the lands in question? Although the Crown was undoubtedly entitled as sovereign, was it also in possession as owner? Did the Crown hold the unalienated lands in demesne? The Judicial Committee first dealt with the Company’s claim to ownership of the disputed land. In this context, the Judicial Committee found that it was necessary to examine the circumstances and features of the special administrative system established for   Southern Rhodesia (n 26) 239–40.   ibid 239. 104  ibid. 105   Provided a colonising project is undertaken with the prior authority of the Crown, the settlers take possession on behalf of the Crown and the territory becomes ipso facto a part of the sovereign’s dominions: see K Roberts-Wray, Commonwealth and Colonial Laws (London, Stevens & Sons Ltd, 1966) 99–100, app I. See also Lester (n 12) 1025. 106   Southern Rhodesia (n 26) 240. See also Lester (n 12) 1026. 107   Southern Rhodesia (n 26) 240–41. 102 103



The Meaning of Radical Title 49

that land.108 Their Lordships found that the Crown had elected not to incur the cost and responsibility of direct administration, but to entrust it to the Company, a commercial concern, which accepted the employment and undertook the burden of financing the administration.109 In particular, it was observed that the administrative arrangements between the Crown and the Company contained no express grant of the unalienated lands by the Crown to the Company.110 Furthermore, the Judicial Committee held that the implication of a universal grant of the unalienated lands by the Crown to the Company without a word said or a paper signed was an impossible conclusion.111 The Company contended that the way in which it had in fact disposed of the unalienated lands and their profits and proceeds indicated some form of ownership of the land.112 This argument was, however, rejected by the Judicial Committee; Lord Sumner observing: The uncontested disposal of lands, as upon a grant for value, may be indicative of ownership in the grantor or it may not; if, as is here the case, it is otherwise explained and is indicative of a particular authority from the Crown in that behalf as owner, no further or other inference arises from the practice of disposing of the lands direct.113

Accordingly, the dominium or the title to the unalienated lands was not vested in the Company.114 As already stated, the Indigenous occupants’ rights were not in issue. Thus, if neither the Company nor the Africans had property rights in the unalienated lands, did the Crown have such rights? Significantly, the Attorney-General, on behalf of the Crown, asked the Judicial Committee for a positive declaration of the rights of the Crown, rather than merely holding that the Company’s possessory rights did not prevail against it. In refusing this application, Lord Sumner’s comments are crucial. His Lordship said: The rights of the Crown . . . are equally matters of proof. Theoretically it is possible to say that the unalienated lands do not belong to anybody, but this conclusion would be unreal, for the whole administrative policy and legislative system of rights in Southern Rhodesia rests on grants from the Company entered on a public register by way of solemn recognition and record of title of ownership. In a sense the Crown’s position is residuary, for if the lands are not shown to belong to any private owner, the practical conclusion would seem to be that they are the Crown’s, but here too, unless it can be made to appear how and why they are the Crown’s, the question of ownership cannot properly be answered in the Crown’s favour.115 (emphasis added)

When these comments are read in light of the Board’s findings in respect of the Crown’s rights to dispose of unalienated lands,116 all that can be said about the Crown’s ‘title’ was that it enabled the Crown to dispose of any land over which it had sovereignty although it was not necessarily the owner of such land. Importantly, Lord Sumner said that ‘theoretically’ the unalienated lands might possibly not belong to anybody. Even though the Crown had acquired sovereignty over Southern Rhodesia, the unalienated   ibid 241.   ibid 242. 110   ibid 242–43. 111   ibid 243. 112  ibid. 113   ibid 244. 114   ibid 249. 115   ibid 231. It will be seen in ch 4 that this is the very point insisted upon by defence counsel in A-G v Brown (n 94): unless it can be made to appear how and why the Crown has title, the Crown’s title is not to be presumed; the Crown can be put to its proof: see ch 4 text to n 26. 116   See above text and quote to n 94. 108 109

50  The Meaning of Radical Title Pre-Mabo lands were not necessarily its property.117 Simply because it had assumed sovereignty did not entail the conclusion that it was seised of a full proprietary interest in the unalienated lands; nevertheless, the Crown did have a sovereign power to grant such lands. The crucial point was that, even in the absence of pre-existing native title, there was no legal presumption in favour of the Crown’s title. The Crown’s title was a question of fact. Accordingly, although the Crown may be in possession of territory as sovereign, it does not automatically follow that the Crown is in possession for the purposes of private law in the context of suits between the Crown and its subjects.118 At this juncture, it is worth comparing how the Supreme Court of New South Wales in Attorney-General (NSW) v Brown119 and the Judicial Committee in Southern Rhodesia dealt with the question of ownership of unalienated lands. It will be seen in chapter four, that in A-G v Brown the unalienated lands were held to belong to the Crown because ‘there was no other proprietor’. In Southern Rhodesia, however, Lord Sumner said that to hold the unalienated lands to be without an owner would be unrealistic when it came to the case of Southern Rhodesia, because ‘the whole administrative policy and legislative system of rights’ rested on grants from the Company, which pursuant to the system of registered titles, became a record of title of ownership.120 The root of these titles must be somewhere, perhaps residually in the Crown but not necessarily: the Crown’s title remained a question of fact to be proved.121 Even though Southern Rhodesia concerned a territory acquired by conquest and not by settlement, the principles on which it is based turn on the distinction between sovereignty and property rights and are, therefore, of universal application. Furthermore, since the radical title of a former sovereign was not in issue in this case, it is particularly relevant in the context of the Crown’s title to an inhabited settled colony. It will be seen in the next chapter that, in such a colony, although the Crown acquires a radical title to all land, the Mabo High Court has made it clear that this radical title is not acquired from a former sovereign. In any event, the Mabo High Court adopted the Privy Council’s treatment of radical title in Amodu.122 Although it is clear that both Amodu and Southern Rhodesia are authority for the proposition that there is no necessary equivalence between the Crown’s radical title and a full proprietary estate, the Mabo High Court concluded, in obiter, that the unalienated lands in Australia belonged to the Crown because there was ‘no other proprietor’. Thus, despite rejecting the fundamental principle for which A-G v Brown was authority – that the Crown acquired an absolute title to all land upon acquisition of sovereignty123 – the High Court nevertheless adopted a conclusion based upon this fundamental principle. In this context, it will be shown, by reference to American authority, that the past confusion of international law and municipal   See also Bakare Ajakaiye v Lieutenant-Governor, Southern Provinces [1929] AC 679 (PC) 682.   See Lester (n 12) 1028–29. The distinction between sovereignty and property was noted in Sobhuza II v Miller [1926] AC 518 (PC) 525 (Lord Haldane, delivering the judgment of the Board). This dictum appears to be the first judicial acknowledgment of the proposition that the power to grant land does not necessarily presuppose ownership of such land. 119   Above n 94. 120   Southern Rhodesia (n 26) 231. 121  How legislative definitions of ‘Crown land’ affect this question of fact is considered in Secher, ‘Implications of the Crown’s Radical Title for Statutory Regimes Regulating the Alienation of Land’ (n 5). See also ch 6 text to n 195ff. 122   Mabo (n 1) 49–50 (Brennan J), 87 (Deane and Gaudron JJ). See also references to Amodu (n 21) in Mabo (n 1) 184, 186, 195 (Toohey J). 123   See also ch 4 text to nn 26–36, 59–67. 117 118



International v Municipal Law 51

law has obscured the question of the legal nature of the sovereign’s title to land. Indeed, reliance on an international law framework predetermines the answer to this question and misses the point that the Crown’s sovereign power to grant land over which it has acquired sovereignty is not dependent on ownership.124 II  INTERNATIONAL V MUNICIPAL LAW: AMERICAN AUTHORITY

In Amodu and Southern Rhodesia,125 the Judicial Committee was relying upon its own previous decisions regarding native title in Canada, including St Catherine’s.126 In turn, these decisions were derived from Johnson v M’Intosh,127 the leading American authority on the issue of the relationship between the rights of the acquiring sovereign and the pre-existing rights of native inhabitants.128 In that case, Chief Justice Marshall structured his views within an analytical framework of international law. However, since the question concerns the legal nature of the Crown’s title to property, and since the Crown’s title to property, as opposed to the Crown’s title to territory, is the only issue that is justiciable, it necessarily follows that the argument must proceed within a framework of general principles of municipal law. Indeed, it is the very admixture of international law and municipal law, sovereignty and property, that has been the reason for concluding that the Crown holds the unalienated lands of an inhabited settled colony in demesne.129 International law regulates the relations between sovereign states. As a juridical concept, therefore, sovereignty is unconnected with the ownership of land and merely describes the right to rule and exercise governmental power over specific territory. Although this governmental power is independent of claims to property,130 Chief Justice Marshall’s judgment in Johnson illustrates the fact that an international law framework predetermines the legal nature of the rights to land that accrue to the sovereign upon acquisition of sovereignty by means of a discovery:131 that is, the sovereign acquires full proprietary rights or a plenum dominium. As we shall see, Marshall CJ’s subsequent decisions in Cherokee Nation v Georgia132 and Worcester v Georgia133 reflect the correct position: namely, that the legal nature of the rights that accrue on a discovery, when such rights are viewed less from an international framework, are only rights to acquire plenary title to land. 124   This is because the power to grant land is an incident of the ‘concomitant of sovereignty’ limb of radical title: see ch 3 esp text to nn 35, 51, 145ff; ch 4 esp text to nn 78ff, 112ff. See also above n 17. 125   See above nn 21, 26. 126   St Catherine’s (n 22); Star Chrome case (n 20); Nireaha Tamaki v Baker [1901] AC 561 (PC) 580. 127   Johnson v M’Intosh 21 US 543 (1823) (USSC). Note that the Supreme Court first addressed the question of Indian rights in 1810 when it decided Fletcher v Peck 10 US 87 (1810) (USSC). Although Marshall CJ declined to give an explanation of the legal relationship between the Crown’s rights and the Indian title in Fletcher (at 91), the Chief Justice’s decision in Johnson was presaged by the dissenting judgment of Johnson J in Fletcher (at 147). 128   American doctrine is to be traced to a series of judgments of John Marshall CJ in the US Supreme Court handed down between 1810 and 1832. 129   The international aspect of the question is, of course, not totally irrelevant to understanding the legal nature of the Crown’s title to land – what prerogatives apply and therefore whether pre-existing title can be unilaterally extinguished depends upon the constitutional status of the colony in question: see ch 3 text to n 208ff. 130   J Salmond, Jurisprudence, 12th edn (London, Sweet & Maxwell Ltd, 1966) app IV, 520. 131   cf Blackstone who believed that the American colonies had been acquired by conquest: 1 Bl Comm 105. 132   Cherokee Nation v Georgia 30 US 1 (1831) (USSC). 133   Worcester v Georgia 31 US 515 (1832) (USSC).

52  The Meaning of Radical Title Pre-Mabo A  Johnson v M’Intosh This was an action of ejectment in respect of certain lands in the State of Illinois. The plaintiff claimed title to sue in ejectment as successor in title to the original purchasers who had bought two large tracts of land from an Indian tribe in 1773 and 1775. Although the private purchases of these Indian lands occurred before the American Revolution, after the independence of the United States the Indians ceded the same lands, without any reservation of their title, to the United States,134 which then patented part of them to the defendant in 1818. The question for decision in this case was, therefore, whether a deed received from the Indians and without authority from the Crown prevailed over a land patent received from the United States Government.135 Although Marshall CJ’s actual decision, in delivering the opinion of the Court, was in favour of the defendant because there was no power in the Indians to alienate their lands to anyone other than to the sovereign without the sovereign’s authority,136 the Chief Justice’s explanation of this result is significant. Marshall CJ explained that it was a necessary principle for the appropriation of territory by the great nations of Europe and to avoid conflicting settlements that ‘discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession’.137 Significantly, what Marshall CJ meant by ‘possession’ was symbolic possession.138 This is because Marshall CJ’s explanation is the paradigm example of the ‘pre-emptive’ code of territorial acquisition. At the international level, the juridical concepts of discovery and of possession, symbolic or actual, mark the main lines of divergence between the ‘pre-emptive’ and ‘dominative’ codes of territorial acquisition (the acquisition of a valid title against rival Europeans).139 Both the pre-emptive and dominative codes stated that two things were necessary for the lawful appropriation of new territory: ‘discovery’ and ‘possession’.140 The proponents of the two codes, however, differed in the way they defined these two key terms. In the context of the pre-emptive code, ‘discovery’ was interpreted as being essentially a mental act: an act of recognising the existence of something new. ‘Thus an act of discovery was instantaneous. It also followed that the size of the territory was legally irrelevant’.141 ‘Possession’ was also defined as a symbolic act of possession; thus possession, like discovery, was not a time-consuming process.142 In the context of the dominative code, ‘discovery’ and ‘possession’ were not separate phenomena, but indissolubly linked as part of the one process. It was not enough to discover: one had to possess as well. . . . [U]nless a visual sighting were followed up by possession that was ‘real’, ‘actual’ or ‘effective,’ then later explorers could begin the process of discovery anew.143   Johnson (n 127) 543–44.   ibid 572. 136   ibid 604–05. 137   ibid 573. 138   See also Lester (n 12) 185. 139   ibid 355ff esp 356–57 and references cited at 355 fns 27, 28. 140  ibid 358 referring to JT Juricek, English Claims in North America to 1660: A Study in Legal and Constitutional History (DPhil thesis, University of Chicago, 1970) Pt I: ‘Legal Doctrines Used to Justify Iberian Overseas Claims, and the Rise of Counter Doctrines’. 141   Lester (n 12) 360. 142   ibid 361. 143   ibid 363. 134 135



International v Municipal Law 53

Although it was denied that symbolic possession was juridical possession, legitimate possession was never precisely defined. The general idea was that of domination.144 It has been observed: We can only be sure of the negative meaning [of the dominative view of possession]: . . . symbolic or declaratory possession was not sufficient to establish legal possession or ownership. If anything more substantial were required for possession, occupation necessarily became a timeconsuming process. That was the vital point: unless a long and painful process were necessary to acquire a legal title to new territory, it would be difficult to dispute the early and extra­ vagant claims of the Spanish and Portuguese.145

Thus, pursuant to the dominative code, evidence in support of juridical possession included ‘colonization, fortification, economic development, and tribute or other forms of recognition of European rights on the part of the aborigines’.146 Significantly, however, there was no universal agreement amongst the proponents of the dominative view on the question of how much of the hinterland was actually possessed once part of the coastal strip had been effectively acquired.147 Marshall CJ’s views on discovery and possession can be best understood in light of his views on the role and effect of the colonial charters.148 The Chief Justice referred to a number of charters pursuant to which the whole country had been granted by the Crown while in the occupation of the Indians. His Honour observed: These grants purport to convey the soil as well as the right of dominion to the grantees . . . It has never been objected . . . that the title as well as the possession was in the Indians when [the charter grants were] made, and that it passed nothing on that account. These various patents cannot be considered as nullities; nor can they be limited to a mere grant of the powers of government. A charter intended to convey political power only, would never contain words expressly granting the land, soil and the waters.149

For Marshall CJ, therefore, the colonial charters were absolute grants of land, subject only to the reservations and conditions expressed therein and the Indian right of occupancy. But did it necessarily follow that because the effect of the Crown’s undoubted power to grant land (although not in actual possession of the land) conferred title on the grantee, the Crown had, immediately prior to the grant, beneficial ownership of the land? Starting from the premise that discovery gave title against other European nations (sovereignty), Marshall CJ went on to assert that as a consequence of this sovereignty (ultimate dominion)150 the Crown had ‘a power to grant the soil, while yet in possession of the natives’.151 For Marshall CJ, the exclusion of all other Europeans necessarily gave the discoverer the sole right of acquiring the soil from the natives, and establishing settlements  ibid.  Juricek, English Claims in North America to 1660: A Study in Legal and Constitutional History (n 140) 755–56. 146   Lester (n 12) 364. 147  ibid. See also B Slattery, ‘French Claims in North America, 1500–59’ (1978) 59 Canadian Historical Review 139–69 which contains independent support for Juricek’s main arguments. 148   See Lester (n 12) 212–19, ch 8: Excursus B, ch 9: 436–38, ch 10: 549ff, chs 11, 20, 21. 149   Johnson (n 127) 579–80. By ‘dominion’ Marshall CJ meant the powers of government: see Lester (n 12) 197. 150   Johnson (n 127) 573. See also Bartlett (n 16) para 12.1. 151   Johnson (n 127) 574. He went on to say that ‘These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy’: ibid. 144 145

54  The Meaning of Radical Title Pre-Mabo upon it. This was a right with which no other European power could interfere.152 Thus, Marshall CJ was clearly relying on international law. Later in his judgment, however, he made it clear that his conclusions based on international law influenced his ideas on municipal law in terms of the sovereign’s title to land: the Crown had the exclusive right of acquiring the Indian right because it had ‘absolute title’ to the land.153 Had the Chief Justice’s reliance on international law not influenced his ideas on municipal law, the Crown’s undoubted sovereign power to grant the soil would not have been confused with Crown ownership of the soil and, consequently, the Crown’s title to land (merely a right to grant and acquire the land) would not have been seen as incompatible with a title in the Indians. Indeed, this proposition is highlighted in Marshall CJ’s treatment of the proclamation issued by the King of Britain in 1763, which was considered as constituting an additional objection to the title of the plaintiffs.154 By that proclamation: [T]he crown reserved, under its own dominion and protection, for the use of the Indians, ‘all the land and territories lying to the westward of the sources of the rivers which fall into the sea from the west and north-west,’ and strictly forbade all British subjects from making any purchases or settlements whatever, or taking possession of the reserved lands.155

It was contended that the King transcended his constitutional powers in this proclamation. Marshall CJ answered this contention by relying upon a (flawed) syllogistic approach involving a premise based upon principles of international law and a premise based upon the theory of the British Constitution: if the Crown has sovereignty over land, the Crown has the power to grant the land; if the Crown has a power to grant land, the Crown must own the land; so if the Crown has sovereignty over land, the Crown must own the land. The Chief Justice observed that it is ‘well settled’ that a discovery is made for the whole nation and ‘that the vacant soil is to be disposed of by that organ . . . in which all vacant territory is vested by law’ (emphasis added).156 In this context, it appears that Marshall CJ recognised that although sovereignty, meaning the repository of governmental power, entails power to grant land, it is unconnected with ownership. Accordingly, in order to determine the organ in which all vacant territory was vested, Marshall CJ turned to municipal law: the doctrine of tenure. He explained that the doctrine of tenure vests all vacant lands in the Crown ‘as representing the nation’, and the ‘exclusive power to grant them is admitted to reside in the crown, as a branch of the royal prerogative’.157 Proof that this principle was as fully recognised in America as in Great Britain was furnished by the fact that ‘[a]ll the lands we hold were originally granted by the crown’.158 Furthermore, no distinction was made between ‘vacant’ lands and lands occupied by Indians:159 in both cases, the right to grant land within the colony was always admitted to be in the Crown. Marshall CJ observed 152   ibid 573. The Crown had the exclusive right of acquiring this Indian right, because it had ‘absolute title’: ibid 587–88. cf Worcester (n 133) 545. 153   Johnson (n 127) 587–88. 154   ibid 594. 155   ibid 594. 156   ibid 595. 157  ibid. cf Mabo (n 1) 48 where Brennan J attributed the beneficial title to the Crown in such circumstances because there was ‘no other proprietor’; but see ch 4 text to nn 18–82. 158   Johnson (n 127) 595. 159   ibid 596.



International v Municipal Law 55

that the authority of the proclamation had never been denied and the titles it gave to lands had always been sustained in American courts.160 Accordingly, the lands to which the proclamation of 1763 referred ‘were lands which the king had a right to grant, or to reserve for the Indians’.161 For Marshall CJ, a principle of international law was developed and recognised by all the nations to the effect that discovery of new territory carried with it the right of sovereignty (which included jurisdictional powers and the right to the soil) to the discovered land which vested immediately, subject only to the right of occupancy by the Indians. Thus, the Crown had the power to grant the land because it owned the land.162 Marshall CJ’s international law framework confused sovereignty and property; the power to grant land and ownership of land. Consequently, the power to grant ownership was regarded as an incident of beneficial title. This proposition is crucial: it will be shown in chapter four, that the post-Mabo rejection of this view explains why defence counsel’s argument in A-G v Brown, that the Crown did not have any property in the waste lands of the colony of New South Wales, can now be sustained.163 Indeed, it will be seen that Marshall CJ changed his views in Cherokee and Worcester and redefined the juridical nature and consequences of discovery and possession. B  Cherokee Nation v Georgia In this case Marshall CJ set the stage for a fundamental departure from his argument in Johnson. The Cherokee sought an injunction from the Supreme Court to prevent the Georgia legislature from executing various Acts in the territory that had been reserved to them under treaties with the United States. The real issue was whether the Supreme Court had jurisdiction to hear the motion, but for present purposes, what is important is Marshall CJ’s treatment of the question of what rights accrue from discovery. As it has been seen, in Johnson it was held that the consequences of discovery gave plenary rights to the discovering sovereign and mere rights of occupancy to the Indians, which the discovering sovereign could unilaterally extinguish. The Crown’s title to land depended entirely ‘upon the law of nations, not upon municipal law’.164 In Cherokee, however, Marshall CJ claimed that the Indians: [A]re acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government. . . . They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. . . . Their relation to the United States resembles that of a ward to his guardian.165

Thus, in Cherokee, Marshall CJ held that a plenary title based on discovery did not ‘take effect in point of possession’ until the possession of the Indians ceased.166 This proposition is analogous to the common law doctrine of ‘occupatio’, where title is only   ibid 597.   ibid 596. 162   A proposition rejected by the Australian High Court: see above nn 17, 124. 163   See ch 4 text to nn 60–67, 78ff, 112ff. 164   The words are Story’s as counsel in Fletcher (n 127) 122–23. 165   Cherokee (n 132) 17. 166   The Indian possession could cease only upon a voluntary relinquishment but not by forcible seizure. 160 161

56  The Meaning of Radical Title Pre-Mabo acquired upon the physical act of taking possession.167 In Johnson, however, Marshall CJ had laid down as a proposition of law that a plenary title had been acquired by the discovery and symbolic act of possession of Cabot. This was because, in Johnson, ‘possession’ for Marshall CJ meant symbolic possession. Thus, in Cherokee, Marshall CJ redefined the meaning of discovery and possession; a new meaning which is clarified in Worcester. C  Worcester v Georgia Although this case raised the question of the personal rights of Samuel Worcester, a white missionary, who had been ministering to the Indians in Cherokee territory, it gave Marshall CJ another opportunity to clarify the legal status of the rights of the Crown.168 Worcester had been arrested and convicted for violating a licensing law which, inter alia, made it an offence to reside in Cherokee territory without a licence from the Governor of the State of Georgia. The validity of various treaties entered into between the Indians and the United States were brought into issue, as was the effect of these treaties and various other statutes on the validity of the Georgia Licensing Act. For present purposes, however, the import­ ance of this decision lies in Marshall CJ’s complete restatement of the principles of discovery and possession. He observed: It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors.169

For Marshall CJ, the question was whether these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments to whom they belonged . . . a rightful property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it?170

In response, the Chief Justice referred to the principle, suggested by the actual state of things, that discovery gave title to the government by whose subjects and by whose authority it was made, ‘which title might be consummated by possession’.171 Although Marshall CJ was quoting directly from his earlier judgment in Johnson and thus appears, prima facie, to be relying upon that decision, this is not so. Rather, Marshall CJ explained that the principle of discovery was an exclusive one: there was no ‘right of competition among those who had agreed to it’ (namely, the European sovereigns). However, it did not, of itself, ‘annul the previous rights of those who had not agreed to it’ (including the Indians).172 Although ‘[i]t regulated the right given by discovery among   See ch 6 text to n 48ff.   Marshall CJ would have preferred a property-right case: Worcester (n 133) 562. See also JC Burke, ‘The Cherokee Cases: A Study in Law, Politics, and Morality’ (1969) 21 Stanford Law Review 500, 523. 169   Worcester (n 133) 543. 170  ibid. 171   ibid 543–44. 172   ibid 544. 167 168



International v Municipal Law 57

the European discoverers, [it] could not affect the rights of those already in possession’.173 It gave the exclusive right to purchase, yet it did not found that right on a denial of the right of the possessor to sell.174 Accordingly, discovery merely regulated the acquisition of sovereignty (jurisdiction) over a territory; it delivered a right to acquire title, but not title itself. Symbolic acts of possession were no longer sufficient to confer juridical possession. Consequently, since Cabot’s discovery in 1497 had not been consummated by possession, Henry VII had not acquired plenary rights. All that discovery conferred was a right to acquire title and in the context of Aboriginal rights, this was a preferential or preemptive right to acquire title. The Crown’s sovereign rights could, therefore, only mature into full rights of property when actual possession had been taken. This restatement of principle had important implications for Marshall CJ’s interpretation of both the rights that passed to the United States as successor in sovereignty (international law) and the rights that passed under the colonial charters (municipal law). In relation to the rights that passed to the United States as successor in sovereignty, the principle, reminiscent of Southern Rhodesia, was that ‘the king of Great Britain, at the treaty of peace, could cede only what belonged to his crown’.175 Thus, Marshall CJ explained: The United States succeeded to all the claims of Great Britain, both territorial and political; but no attempt, so far as is known, has been made to enlarge them. So far as they existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their original character, and remain dormant. So far as they have been practically exerted, they exist in fact, are understood by both parties, are asserted by one, and admitted by the other.176

Thus until the Crown in fact acquired title by taking possession, the Crown asserted a title against European nations only; the Crown’s rights to the soil were merely exclusive of the claims of other European nations.177 Nine years after his decision in Johnson, Marshall CJ concluded: The extravagant and absurd idea, that the feeble settlements made on the sea-coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the exclusive right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect to claim; nor was it so understood.178 (emphasis added)

Rather than passing the ‘absolute property’ in the land, the colonial charters were now seen as mere rights to acquire land. The fact that the charters conferred a power to wage war for defensive purposes only179 and contained passages showing that their objects included the conversion of the Indians to Christianity180 demonstrated that the  ibid.  ibid. 175   ibid 560. 176   ibid 544. 177   ibid 546. 178   ibid 544–45. 179   ibid 546. 180  ibid. 173 174

58  The Meaning of Radical Title Pre-Mabo ‘motives for planting the new colony [were] incompatible with the lofty ideas of granting the soil, and all its inhabitants from sea to sea’. Rather, ‘[t]hey demonstrate[d] the truth, that these grants asserted a title against Europeans only, and were considered as blank paper so far as the rights of the natives were concerned’.181 Consequently, Marshall CJ concluded that the ‘Indian nations possessed a full right to the lands they occupied, until that right should be extinguished by the United States, with their consent’ (emphasis added).182 In reaching this conclusion, the Chief Justice referred to various Acts of Georgia’s legislature, including the contract of cession made in 1802,183 which were held to furnish conclusive evidence that Georgia’s former opinions on this subject concurred with those of the United States. Since the new Act of the State of Georgia under which the plaintiff was prosecuted manifested an abandonment of this opinion, it was found to be void.184 The crucial passage in Marshall CJ’s explanation of the rights that passed under the colonial charters is this: ‘[t]he crown could not be understood to grant what the crown did not affect to claim; nor was it so understood’.185 This is, of course, the very antithesis of Marshall CJ’s decision in Johnson. Rather than passing the land in ‘absolute property’, the colonial charters were now regarded as only conferring a right to acquire the land. This inconsistency between Johnson and Worcester goes to the heart of the problem of the legal nature of the Crowns rights to land. In Johnson, the British Crown was regarded as having acquired title to land as a result of Cabot’s discovery and symbolic act of possession. Thus, the Crown had power to grant land because it owned the land. In Worcester, symbolic acts of discovery were no longer sufficient to confer possession: plenary rights were not automatically acquired by the Crown as a result of discovery. Until the Crown in fact acquired title, the charters were unable to convey land. Thus, the Crown did not have the power to grant the land because it did not own the land. The crucial point is that, in Worcester, Marshall CJ held that a full title (plenum dominium) could be acquired only by taking actual and not symbolic possession. He thus changed the definition of the key terms in his argument: the meaning and juridical consequences of discovery and possession. Consistent with his advocacy of the dominative code as being the true basis of the Crown’s rights, it now followed that the charters could convey only jurisdictional rights and a title to acquire title but not title itself. The Crown could not be said to have a present proprietary title186 unless it had taken actual occupation and possession. Although the United States courts have preferred the term ‘sovereign title’, rather than radical title, to explain the sovereign’s right ‘to sell, give or grant the legal title to another person or to another nation’,187 it is clear that this title does not confer a beneficial interest on the sovereign; it merely confers control over the alienation of lands subject to native title. The inchoate nature of the Crown’s proprietary rights was also understood in a number of New Zealand cases, to which we now turn.  ibid.   ibid 560. 183  ibid. 184   ibid 560–61. 185   ibid 544–45. See also ibid 560. 186   Or, to use the words of Chapman J in R v Symonds (1847) [1840–1932] NZPCC 387 (NZSC), ‘to be seised in fee’: see below text to n 223ff. 187   Sac and Fox Tribe of Indians of Oklahoma v United States 383 F 2d 991, 997 (1967) (CtCl). 181 182



New Zealand Authority 59

III  NEW ZEALAND AUTHORITY

New Zealand has generally not been considered as relevant authority in the context of an inhabited settled colony because it is complicated by the Treaty of Waitangi and the early response to the question of Aboriginal rights through statutory enactment.188 The weight of opinion, however, suggests that not only has New Zealand always been treated as being a settled, rather than ceded, colony,189 but also that property rights did not pass under the Treaty of Waitangi,190 making that issue juridically irrelevant.191 The legislative regime regulating relations between the Maori and the settlers over New Zealand’s landed estate192 was, therefore, based on common law principles and did not constitute or create new legal rights, nor render them more enforceable.193 The statutory regime relating to Maori land rights simply provided machinery for dealing with the pre-­existing land rights of the Maori; it was erected on the assumption that Maori title existed and that lands were actually held pursuant to such title. This position is not dissimilar to that in Australia with the enactment of the Native Title Act 1993 (Cth) following recognition of native title at common law. Also, like the Australian position, the only common law limitation imposed on native title in New Zealand was that the Crown had the exclusive right of acquiring such lands: it was inalienable except to the Crown. Thus, with hindsight, New Zealand is directly on all fours with the Australian position. If property rights did not pass under the Treaty of Waitangi and the statutory regime relating to Maori land rights was based on the common law, what was the legal effect of section 2 of the New Zealand Land Claims Ordinance of 1841 which declared that all ‘unappropriated’ lands in New Zealand are and remain domain lands subject however to the Aboriginal occupiers’ rights under their native law?194 Did this mean that the Crown became ‘seised in fee’195 of the unalienated and unoccupied lands in New Zealand?   See, eg, Fejo v Northern Territory [1998] HCA] 58, (1998) 195 CLR 96 [101] (Kirby J).   Lester (n 12) 731–34; P McHugh, The Aboriginal Rights of the New Zealand Maori at Common Law (DPhil thesis, Cambridge University, 1987) chs 3–4. cf B Slattery, The Land Rights of Indigenous Canadian Peoples, as Affected by the Crown’s Acquisition of Their Territories (DPhil thesis, Oxford University, 1979) 53, 343–44 (reprinted as B Slattery, The Land Rights of Indigenous Canadian Peoples (Saskatoon, University of Saskatchewan Native Title Centre, 1979). cf also Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72 (NZSC) 77–78 with Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 (PC) 324. 190   Although New Zealand was annexed to New South Wales by letters patent sealed on 15 June 1839, Maori consent to the Crown’s assertion of sovereignty was obtained by the Treaty of Waitangi, first signed on 6 February 1840. 191   Lester (n 12) 727–34. Both Imperial and colonial judicial and official opinion held, and modern scholarly opinion has affirmed, that the Treaty of Waitangi was juridically irrelevant in terms of the Crown acquiring sovereignty: Wi Parata (n 189) 78 (Prendergast CJ); Tamihana Korokai v Secretary-General (1912) 32 NZLR 321 (NZCA) 354; Re Ninety-Mile Beach [1963] NZLR 459 (NZCA) 475–76; Lester (n 12) 734 fn 17. See also authorities cited by McNeil (n 13) ch 6 fns 113, 124. 192   In 1840 New Zealand was de-annexed from New South Wales and established as a colony in its own right under letters patent. 193   See Lester (n 12) 822–25. 194   Section 2 provided: ‘all unappropriated lands within the Colony of New Zealand, subject however to the rightful and necessary occupation and use thereof by the aboriginal inhabitants of the said Colony, are and remain Crown or domain lands of Her Majesty and that the sole and absolute right of pre-emption from the said aboriginal inhabitants vests in and can be exercised by Her Majesty . . . and that all titles to land in . . . New Zealand which are held or claimed by virtue of purchases or gifts or pretended gifts . . . [including conveyances, leases, agreements, or other titles], either mediately or immediately from the chiefs or other individuals or individual of the aboriginal tribes inhabiting the said Colony, and which are not or may not hereafter be allowed by Her Majesty . . . are, and the same shall be, absolutely null and void’. 195   Chapman J used this phrase in Symonds (n 186): see above n 186, below n 223. 188 189

60  The Meaning of Radical Title Pre-Mabo Although the 1841 Ordinance appears to vest title to all unappropriated lands in the Crown, while saving the Aboriginal occupiers rights under their native law, it will be seen that despite the Ordinance’s clear words, neither Chapman J nor Martin CJ in R v Symonds196 took this view. Rather, they held that the Crown was not seised in fee against the Aboriginal inhabitants, but that it had merely a technical seisin.197 Furthermore, in Nireaha Tamaki v Baker,198 Lord Davey expressly rejected the view that this Ordinance conferred title on the Crown.199 A  R v Symonds The only limitation imposed on the Aboriginal inhabitants in the letters patent annexing New Zealand to New South Wales on 15 June 1839, was that the Crown had the exclusive right of acquiring their lands.200 Maori consent to the Crown’s assertion of sovereignty was evidenced by the Treaty of Waitangi, which was signed by some Maori chiefs on 6 February 1840. In 1840, New Zealand was also de-annexed from New South Wales and, by letters patent, it was established as a British colony in its own right.201 Since the Crown did not acquire, as a result of British annexation of New Zealand, a present proprietary estate in those lands occupied by the Aboriginal inhabitants, it was to acquire its plenary title by progressive purchases of Aboriginal lands from the Maori.202 In an attempt to stimulate land sales, Governor FitzRoy waived, by proclamation, the Crown’s exclusive right of pre-emption.203 These waiver proclamations authorised colonists to purchase ‘a few hundred acres’ directly from the Aboriginal titleholders. When Governor Grey took office in New Zealand in 1846, he arranged, as part of his assertion of political authority in New Zealand, to test the validity of the purchases from the Aboriginal inhabitants which had been made under FitzRoy’s waiver proclamations: thus, the decision in Symonds.204 Having purchased land directly from the Aboriginal titleholders, the claimant, McIntosh, attempted to couple this deed with a certificate waiving the Crown’s pre-emptive right. However, subsequent to McIntosh’s purchase, the defendant had been issued a grant under colonial seal in respect of the same land. The question before the Supreme Court of New Zealand was: Did the claimant, Mr. C. Hunter McIntosh, acquire by certificate and his subsequent purchase (admitted to have been in all respects fair and bona fide) such an interest in the land, as against

  Above n 186.   It will be shown in ch 4 that the New Zealand judicial concept of ‘technical seisin’ is simply another term for what the Australian High Court has designated the ‘concomitant of sovereignty’ limb of radical title. See also below text to n 243. 198   Above n 126. 199   Even if the Ordinance had vested title in the Crown, the argument that the Crown must exercise its sovereign power to appropriate to itself ownership of particular land before it acquires a plenary title to the land is still intact. This is simply because a seisin in fee did not vest in the Crown by the common law (including the doctrine of tenure) but by the force of the Ordinance itself: the root of the Crown’s title is statutory. 200   Lester (n 12) 729. 201   ibid 731, 735. 202   See also the Australian position: ch 4 text to n 32. 203   Lester (n 12) 731, 735. 204   This case was also the first decision by a colonial court concerning the relationship between the rights accruing to the Crown and the antecedent rights of Aboriginal inhabitants in a territory acquired by settlement. 196 197



New Zealand Authority 61 the Crown, as invalidates a grant made to another, subsequently to the certificate and purchase? 205

Thus, the issue was identical to that confronting the United States Supreme Court in Johnson. Both Chapman J and Martin CJ realised that the case raised very important legal issues and ‘involve[d] principles of universal application to the respective territorial rights of the Crown, the aboriginal Natives, and the European subjects of the Queen’.206 Indeed, Chapman J opened his judgment with the statement that since the case: [M]ay affect larger interests than even this Court is up to this moment aware of, I think it is incumbent on us to enunciate the principles upon which our conclusion is based with more care and particularity than would, under other circumstances, be necessary.207

For Chapman J, the doctrine of tenure (as then understood)208 was, prima facie, a fatal impediment to the informant’s claim to title. His Honour referred to the ‘fundamental maxim of our laws, springing no doubt from the feudal origin and nature of our tenures, that the King was the original proprietor of all the lands in the kingdom, and consequently the only legal source of private title’ (emphasis added).209 Chapman J explained that it was as a necessary corollary of the doctrine ‘that the Queen is the exclusive source of private title’, that the colonial courts have invariably held that they cannot give effect to any title not derived from the Crown and verified by letters patent.210 Turning to the question of private titles in New Zealand, Chapman J noted that the Governor derived his authority partly from his Commission and partly from the 1840 Royal Charter.211 He emphasised that, pursuant to the Charter, the Governor was empowered to make grants of waste lands under the public seal, but: In no other way can any estate or interest in land, whether immediate or prospective, be made to take effect; and this Court is precluded from taking notice of any estate, interest, or claim, of whatsoever nature, which is not conformable with this provision of the Charter; which in itself is only an expression of the well-ascertained and settled law of the land.212

It followed that under ‘ordinary circumstances’ the Court did not have to go any further. On the one hand, the defendant asserted a title acquired bona fide from the Crown; on the other hand, the title asserted by McIntosh was based on an instrument that was not under public seal and thus did not comply with the 1840 Charter nor the common law doctrine of tenure. ‘[U]nder ordinary circumstances’, therefore, the Court would uphold the defendant’s title and refuse to vacate his grant by scire facias.213 For Chapman J, however, the case before the Court was not an ordinary one: [T]he peculiar character of the instrument under which Mr. McIntosh claims, being the act of the late Governor of the Colony, whose acts ought to be supported, if not repugnant to the law of the land, and issued in conformity with a Proclamation, with which it [was] admitted the   Symonds (n 186) 388 (Chapman J).  ibid. 207  ibid. 208   On the post-Mabo doctrine of tenure (ad veritatem) see ch 3 text to n 19ff. 209   Symonds (n 186) 388. 210  ibid. 211   ibid 389. 212  ibid. 213  ibid. 205 206

62  The Meaning of Radical Title Pre-Mabo claimant [had] faithfully complied, demands that we go further, and examine the validity of his claim upon its own intrinsic merits.214

It is, therefore, in the context of examining the merits of McIntosh’s claim that Chapman J explained the legal nature of the respective rights of the Crown and the Aboriginal inhabitants. Chapman J concluded that the Crown has the exclusive right of acquiring title to land subject to an Aboriginal title and that such right of pre-emption could not be waived by the Governor. Accordingly, private purchases from Aboriginal titleholders were void against the Crown.215 Chapman J’s reasoning is crucial: what were the legal principles which made the Crown’s exclusive right of pre-emption not subject to waiver by the Governor? Chapman J explained that it flowed: [F]rom the very terms in which the principle, ‘that the Queen is the only source of title,’ is expressed, that no subject can for himself acquire new lands by any means whatsoever. Any acquisition of territory by a subject, by conquest, discovery, occupation or purchase from Native tribes . . . can confer no right on the subject. Territories therefore, acquired by the subject in any way vest at once in the Crown. To state the Crown’s right in the broadest way: it enjoys the exclusive right of acquiring newly found or conquered territory, and of extinguishing the title of any aboriginal inhabitants to be found thereon. . . . The history of Sir Francis Drake is an instance of a subject acquiring territory for the Queen, by a mixture of conquest and discovery, without a Commission. In like manner an accidental discovery is taken possession of, not for the benefit of the discoverer himself, but for that of the Crown. The rule, therefore, adopted in our colonies, ‘that the Queen has the exclusive right of extinguishing the Native title to land,’ is only one member of a wider rule, that the Queen has the exclusive right of acquiring new territory, and that whatsoever the subject may acquire, vests at once, as already stated, in the Queen. And this, because in relation to the subjects, the Queen is the only source of title.216

Thus, Chapman J’s view appears to have an affinity with Marshall CJ’s, that is, that the right of pre-emption finds its origin in a rule of international law, as flowing from the exclusive right of acquiring new territory. Moreover, in light of Chapman J’s earlier remarks it appears that Chapman J’s position on the Crown’s exclusive right of preemption was the result of an admixture of principles of international and municipal law: it followed from the international law rule that the Queen has the exclusive right of acquiring new territory that the Queen is the exclusive source of title at common law, a rule which he admitted flows from the (feudal) doctrine of tenure (municipal law).217 Significantly, Chapman J applied the rule as he articulated it, to conclude that if a subject purchased the Aboriginal title to particular land, this did not mean that the purchase was absolutely null and void.218 Rather: If care be taken to purchase off the true owners, and to get in all outstanding claims, the purchases are good as against the Native seller, but not against the Crown. In like manner, though discovery followed by occupation vests nothing in the subject, yet it is good against all the  ibid.   ibid 389–92. However, his Honour also held that the Crown can only exercise its exclusive right of preemption and become seised with the Aborigines’ consent: ibid 390. cf the Australian position post-Mabo: see ch 3 text to nn 145, 276. 216   Symonds (n 186) 389–90. 217   ibid 388. See also above text to n 216. 218   ibid 390. 214 215



New Zealand Authority 63 world except the Queen who takes. All that the law predicates of such acquisitions is that they are null and void as against the Crown: and why? because ‘the Queen is the exclusive source of title.’219

But what were Chapman J’s views on the legal nature of the Crown’s interest in land subject to an Aboriginal title? While finding it unnecessary to define the exact nature of the Crown’s title to lands subject to an Aboriginal title, Chapman J nevertheless made two important comments obiter on this issue. First, he observed: The legal doctrine as to the exclusive right of the Queen to extinguish the Native title, though it operates only as a restraint upon the purchasing capacity of the Queen’s European subjects, leaving the Natives to deal among themselves, as freely as before the commencement of our intercourse with them, it is no doubt incompatible with that full and absolute dominion over the lands which they occupy, which we call an estate in fee.220 (emphasis added)

Thus, Chapman J contemplated the Native dominion over the soil as inferior to what we call an estate in fee. Secondly, he said: Anciently, it seems to have been assumed, that notwithstanding the rights of the Native race, and of course subject to such rights, the Crown, as against its own [non-Native] subjects, had the full and absolute dominion over the soil, as a necessary consequence of territorial jurisdiction. Strictly speaking, this is perhaps deducible from the principle of our law [of tenures].221

He added, however, an important qualification: The assertion of the Queen’s pre-emptive right supposes only a modified dominion as residing in the Natives. But it is also a principle of our law that the freehold never can be in abeyance; hence the full recognition of the modified title of the Natives, and its most careful protection, is not theoretically inconsistent with the Queen’s seisin in fee as against her European subjects. This technical seisin against all the world except the Natives is the strong­ est ground whereon the due protection of their qualified dominion can be based.222 (emphasis added)

Thus, Chapman J regarded the Crown’s title to land subject to an Aboriginal entitlement not ‘of so high a nature as an actual seisin in fee as against her European subjects’ but rather ‘as the weakest conceivable interest in the soil, a mere possibility of seisin’.223 With respect to the Natives, it was they who were seised, not the Crown.224 Chapman J did admit that the characterisation of the Crown’s title to land subject to an Aboriginal title as mere possibility of seisin was an ‘extreme view’ which had not been judicially  ibid.   ibid 391. 221   ibid. For a discussion of the effect of the common law rule against an abeyance of seisin on the argument advanced in this work see ch 6 text to n 164ff. 222   Symonds (n 186) 391. 223   ibid 392. Lester has argued that Chapman J distinguished between the Crown’s title vis-a-vis Aboriginal people who are legally in possession before the Crown and the title in the Crown against European subjects who can only derive a title from the Crown once the Crown’s title has accrued: Lester (n 12) 774. It is only in respect of the former that Lester attributes to the Crown a mere right to acquire title rather than title itself. This conclusion is, however, based on two erroneous assumptions. First, that the Crown acquires a present proprietary estate in respect of all unoccupied land over which it has sovereignty and, secondly, that the Crown is the exclusive source of title for European subjects. These assumptions are rejected in chs 4 and 6 respectively. 224   That is, the Crown’s title merely took the form of a right of pre-emption. 219 220

64  The Meaning of Radical Title Pre-Mabo taken by any colonial court that he was aware of, nor by any of the United States’ courts, recognising the principles of the common law.225 Although the Crown had the exclusive right of acquiring title to land subject to an Aboriginal entitlement, it did not have a legal right of possession, it was not seised of such lands. Instead it was the Aboriginal occupiers who were seised. It will be seen that, in terms of the two suggested incidents of the ‘concomitant of sovereignty’ limb of radical title, the Crown’s rights to occupied land amounted to a right of pre-emption against the Aboriginal people who were in possession.226 Against the rest of the world, the Crown was technically seised of the lands, seised of the right to acquire title. Although this explanation accords with Lord Sumner’s analysis of the respective positions of the Crown and the British South Africa Company in Southern Rhodesia, a significant divergence between the Privy Council’s analysis in Southern Rhodesia and Chapman J’s analysis in Symonds is that while Chapman J argued that the Crown could not grant land until it owned the land (until it had exercised the right of pre-emption and thus acquired title), the Privy Council, like the Mabo High Court, held that the Crown had the power to grant land before it had acquired ownership of the land (before it had exercised its right to acquire title to particular land). For Chapman J, therefore, the Crown’s title to land subject to an Aboriginal title, its radical title, was merely a right to acquire title rather than title itself. If the Crown claimed to have a plenary and unencumbered title, such conversion of its radical title as a right to acquire title into a present proprietary estate, would have to be proved as fact. Thus Chapman J denied that the Crown in New Zealand had a present proprietary estate to land subject to an Aboriginal title. Chapman J also dealt briefly with the argument that failure to comply with the Australian Waste Lands Act 1855 (Imp)227 (which was in force in New Zealand at the time the cause of action commenced) would be a fatal defect in McIntosh’s claim. Chapman J said that there were two grounds why this would be fatal. For present purposes, the second ground is more important: [B]y Mr. McIntosh’s purchase (assuming it to be a complete extinguishment of the title of all Native claimants) the land vests in the Crown, and so becomes part of the waste lands of the Crown, . . . and as such could only be alienated (so long as the [Sale of Waste Lands Act 1842 (5 & 6 Vic c 36)] was in force here) in strict compliance with its provisions.228

These observations make it clear that Chapman J saw a difference between the title that the Crown has to all land and the Crown’s plenary title to certain land. Nevertheless, they also reinforce the position that Chapman J did not conceive that the Crown could grant land before it actually had full title to that land. This misses the point: the Crown’s radical title to all land allows the Crown to grant any land over which it has acquired sovereignty. Where land is occupied at colonisation, the right of pre-emption allows the Crown to exclusively acquire title to the land. Simply because the Crown’s title to land is a mere possibility of seisin, a right to acquire title, does not, however, detract from the 225   Symonds (n 186) 391–92. See, however, Fletcher (n 127), where there was a declaration to this effect by a majority of the judges of the United States Supreme Court. See also the dissenting judgment of Johnson J in Fletcher (n 127) 145–47. 226   See below text to n 243. 227   18 & 19 Vic c 56, ss 1 and 4. 228   Symonds (n 186) 393. See ibid 392–93 for the first ground.



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principle that the land could not be alienated otherwise than in strict compliance with the Act. Although the power to grant land is independent of Crown ownership of the land, this power must be exercised in compliance with the Act. Thus, the same result is achieved without confusing sovereignty and property. Nonetheless, this hallmark of feudalism, the confusion of imperium and dominium is also evident in Martin CJ’s judgment. For Martin CJ, the Crown’s right of pre-emption was a common law principle which the Land Claims Ordinance merely confirmed.229 Its true meaning was that: ‘[i]t is everywhere assumed that where the Native owners have fairly and freely parted with their lands the same at once vest in the Crown, and become subject wholly to the disposing power of the Crown’.230 Martin CJ, therefore, also endorsed the view that the Crown’s power to grant land is conditional upon the Crown actually having acquired plenary title to the land. Until the Aboriginal title was extinguished the land would not be Crown land held in demesne and thus could not be granted by the Crown. Nevertheless, Martin CJ gave a different explanation from Chapman J of the origin of the Crown’s right of pre-emption: it arises from the doctrine of tenure, for it is only if the Crown can acquire first from the Aborigines that it can become the exclusive source of title. According to this view, the rule traces its origins to the maxim that the King was the original proprietor of all lands (which, it will be seen in the next chapter, is no longer of universal application in Australia). Although this explanation maintains the rule that the Crown is the exclusive source of title, in contradistinction to Chapman J’s analysis, Martin CJ attempted to rely on a framework of common law principles rather than an admixture of common law and international law principles. Explaining that ‘colonization is a work of national concernment . . . and therefore to be controlled and guided by the Supreme Power of the nation’,231 Martin CJ admitted that this rule may have its origins in the feudal doctrine of tenure which vested supreme dominion and ultimate ownership of all land personally in the sovereign: [I]n modern times, and especially since the Domain of the Crown passed under the control of Parliament, [the Crown’s right of pre-emption] has acquired an enlarged significancy and importance. It is now understood that the waste lands of the Crown are to be administered for the national behoof upon an impartial and (so far as may be) a uniform system. . . . Now, the Sovereign right of control, without which no uniform or general system would be possible, is secured by this rule. If a subject of the Crown could by his own act, unauthorised by the Crown, acquire against the Crown a right to any portion of the lands of a new country, it is plain that he might, acting upon that right, proceed to form a colony there. Now, the law of England denies to any subject the right of forming a Colony without license of the Crown.232 (emphasis added)

Thus, the Chief Justice characterised the sovereign’s title ‘in modern times’ as a ‘right of control’ as distinguished from the feudal notion of ‘supreme dominion and ultimate ownership of all land’. Nevertheless, in the context of explaining why a subject cannot acquire a right to any land, his reasoning continued to confuse sovereignty and property;

  ibid 393–94.   ibid 394. 231   ibid 395. 232  ibid. 229 230

66  The Meaning of Radical Title Pre-Mabo the sovereign right to control land with the right of ownership.233 Although the common law prohibits a subject from forming a colony (and thus exercising sovereignty) without the consent of the Crown, to say that therefore a subject cannot acquire a right to any land involves a flawed syllogism: the common law denies a subject the right of forming a colony without the consent of the Crown; if a subject can acquire a right to any land, that subject might proceed to form a colony; so, the common law denies a subject the right of acquiring any land. Martin CJ also argued that when the Crown exercises its right of pre-emption the land enures to the Crown, not in its own right so as to take beneficially, but as sort of trustee for the whole nation.234 In this context he approvingly referred to the words of Stephen CJ in A-G v Brown: ‘in one sense, these lands be the patrimony of the nation’.235 It will be seen in chapter three, however, that when Brennan J dealt with this purported basis for Crown ownership in Mabo, he concluded that it did not vest ownership in the Crown.236 Both Chapman J and Martin CJ concluded that the Crown could not waive its right of pre-emption and permit colonists to purchase directly from the Natives. This was because, inter alia, the Crown’s right of pre-emption was not a fit subject of waiver: the strict rules for conveying an interest purchased from the Natives had not been complied with.237 The important point is that both Chapman J and Martin CJ denied that the Crown in New Zealand had a present proprietary estate to land subject to an Aboriginal title. Instead, they held the Crown had only a preferential right to acquire title to that land. Lester agrees.238 It will be seen that so does the High Court.239 Although they are, no doubt, all correct in concluding that the Crown does not have a present proprietary estate to such land, their explanations for the conclusion that the Crown has a preferential or exclusive right to acquire title to such land vary. On the authority of Symonds, this rule traces its origins either to the maxim that the Crown is the original proprietor of all land (Martin CJ’s view)240 or to an admixture of international and municipal law, namely, that because the Queen is the source of all title to land, the sovereign has the exclusive right of acquiring new territory (Chapman J’s view). Lester embraces the latter view.241 Significantly, however, the doctrine of tenure was crucial to the explanation of both Martin CJ and Chapman J.242 For present purposes, the important point is that both Martin CJ and Chapman J rejected the view that the Crown had a present proprietary estate to land subject to an 233  Indeed, even within strict feudal theory, when sovereignty and property were fused, a subject could acquire title by occupancy of a vacant pur autre vie estate, by adverse possession and by custom. Although such means of acquiring title were explained by deeming a relevant Crown grant to have been made, the existence of allodial title, the very antithesis of land held of a superior, has always been a true exception to feudal tenure: see ch 1 text to nn 126ff, 177. See also chs 4 and 7. 234   Symonds (n 186) 395–97. 235   ibid 395 quoting A-G v Brown (n 94) 318. 236   Ch 3 text to nn 39–44. 237   Symonds (n 186) 391–92 (Chapman J), 396–97 (Martin CJ). 238   Lester (n 12) 771, 772, 1443. 239   Ch 3 text to nn 314–25. 240   A maxim which no longer applies to land in Australia which is occupied at colonisation. 241   Lester (n 12) 771, 772, 1443. 242   In ch 4 it will be seen that the majority of the Australian High Court’s position on the Crown’s exclusive right of pre-emption is framed in terms of the concomitant of sovereignty limb of radical title, as opposed to the postulate of the doctrine of tenure limb, and thus represents a fundamental departure from Martin CJ and Chapman J’s analysis.



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Aboriginal entitlement. Although not using the term ‘radical title’, Chapman J spoke of the Crown’s mere ‘technical seisin against all the world’ and Martin CJ spoke of the ‘Sovereign right of control of land’. It will become apparent in chapter four, however, that the three phrases are interchangeable. Chapman J and Martin CJ simply did not conceptualise their concepts as having two incidents: that is, in addition to conferring a right to acquire plenary property rights which, in the case of land subject to native title, took the form of an exclusive right of pre-emption, as also conferring a power to grant beneficial title by validly disposing of any land, including land occupied at colonisation, over which the Crown had sovereignty (the two incidents of what the Australian High Court has designated the ‘concomitant of sovereignty’ limb of radical title).243 Accordingly, when discussing the implications of land subject to an Aboriginal entitlement in terms of the Crown’s power of disposition, Chapman J, Martin CJ and Lester are all guilty of confusing sovereignty and property: they conclude that until the right of pre-emption is exercised, lands subject to an Aboriginal entitlement are not demesne lands of the Crown and, therefore, are not open to being granted by the Crown. Thus, it is in the context of the assumption that the Crown must own particular land before it can grant the land that the Mabo High Court’s treatment of the Crown’s title to land in a newly acquired territory departs from the pre-Mabo authorities other than Southern Rhodesia and, it will be seen, Nireaha Tamaki.244 Following the decision in Symonds, New Zealand courts restricted the principles from that case to the point that the Maori’s rights to their traditional lands were viewed as being uncognisable by the common law with the result that the Crown was regarded as having the full proprietary right to the land.245 The New Zealand Supreme Court’s decision in Wi Parata v Bishop of Wellington246 was the case most responsible for this restrictive trend, a trend which continued until the Judicial Committee’s decision in Nireaha Tamaki.247 B  Wi Parata v Bishop of Wellington: International Law Revisited The plaintiff in this action was a chief of the Ngatitoa tribe which, in 1848, had entered into negotiations with the then Lord Bishop of New Zealand and had verbally agreed to give up a certain part of their lands for the establishment of a school, so that their children could be educated. In 1850, without the knowledge or consent of the tribe, a Crown grant was issued to the Bishop on trusts for the establishment and maintenance of a school. No school was, however, established or maintained. The plaintiff argued that the native title to the land granted had never been lawfully extinguished. Although no Crown grant had been issued to the Natives for any portion of the land, it was alleged that at the time of the grant to the Bishop, the land formed   See ch 3 text to nn 35, 51; generally ch 4.   See discussion below n 269ff. 245   Lester (n 12) 789. See also JW Tate, ‘Pre-Wi Parata: Early Native Title Cases in New Zealand’ (2003) 11 Waikato Law Review 112. 246   Above n 189. 247   Above n 126. This case was referred to in Mabo (n 1) 48 in the context of discussing the concept of radical title. See also JW Tate, ‘The Privy Council and Native Title: A Requiem for Wi Parata?’ (2004) 12 Waikato Law Review 101; JW Tate, ‘Hohepa Wi Neera: Native Title and the Privy Council Challenge’ (2004) 35 Victoria University of Wellington Law Review 73. 243 244

68  The Meaning of Radical Title Pre-Mabo part of a reserve set apart by the government for the exclusive use and purposes of the Ngatitoa tribe, which had never been permitted to sell or dispose of any portion of the reserve. In 1877, when the plaintiff’s action was heard, the Ngatitoa tribe had greatly reduced in numbers; from approximately 1000 in 1848 to between 30 and 40. Any school would, therefore, be useless. It was contended that, since the trusts upon which the land was given by the native donors were no longer capable of being carried out, the land ought to revert to the surviving donors. The crucial question raised by Wi Parata was whether the Crown could legally make a grant of land subject to pre-existing native title without first obtaining a surrender of that native title? And, if the Crown could not, did a native titleholder have sufficient title to sue? The plaintiff’s major argument was that, by the Regulations under the Colonial Charter of 1840: [N]o Crown grant could be issued for any land in the actual occupation of the natives; . . . Up to the date of [the 1850] grant, the Crown had not given the Governor any power to issue a grant of land not purchased from the natives, for the reason that the natives must first convey to the Crown. The Crown was to be the sole purchaser in the first instance.248

In response to this contention, Richmond J, in arguendo, said: The Court of Appeal [in Reg v Macandrew] has decided that the fee simple is in the Crown, subject to the rights of the aboriginal tribes, and of course subject to such Crown grants as have been executed. The natives were to have a right of occupancy which, if we were left to the common law, this Court could know nothing about.249

His Honour then referred to the Native Rights Act 1865, which he interpreted as declaring that the Supreme Court ‘shall take cognizance of Maori custom, but the Legislature requires [the Court] to send any question of Maori title to the Native Lands Court. It is as much as to say, it is a jurisdiction we are incapable of exercising’.250 In this context, Richmond J expressly rejected the Supreme Court’s common law jurisdiction to inquire into extinguishment.251 The judgment of the Court was delivered by Prendergast CJ. There were two strands to the Chief Justice’s decision against the plaintiff: one relating to the voidability of the 1850 grant, the other to the Court’s jurisdiction to entertain suits based on native title. The second strand is relevant for present purposes. Prendergast CJ declared that the Court had no jurisdiction to avoid a Crown grant: [O]n the pretence that the Crown has not conformed in its grant to the terms on which aboriginal owners have ceded their rights in the land, or that the native title has not been extinguished – except perhaps in a proceeding by scire facias or otherwise, on the prosecution of the Crown itself.252

In reaching this conclusion, the Chief Justice was clearly of the view that the Crown had the fee simple to land subject to an Aboriginal entitlement. This was essentially because he found that the acquisition of sovereignty over New Zealand determined the   Wi Parata (n 189) 74.   ibid 74–75. 250   ibid 75. 251   His Honour stated (at 75): ‘This Court cannot enquire whether the Crown had properly extinguished the native title’. Thus, for Richmond J, it was clear that in order to impeach the 1850 grant the plaintiff must proceed by scire facias at the suit of the Crown, rather than the native titleholders. 252   Wi Parata (n 189) 77. 248 249



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common law position with respect to title to land (which it also did in Australia preMabo). Inherent in this analysis, Prendergast CJ returned to an international law focus. Prendergast CJ examined the general position on the foundation of the colony – a combination (and confusion) of international law, common law and statute – and then whether this position had been altered by subsequent statutory enactments. In the context of the general law position, Prendergast CJ observed: On the foundation of [the colony of New Zealand], the aborigines were found without any kind of civil government, or any settled system of law. There is no doubt that during a series of years the British Government desired and endeavoured to recognize the independent nationality of New Zealand. But the thing neither existed nor at that time could be established. The Maori tribes were incapable of performing the duties, and therefore of assuming the rights, of a civilised community.253

As a result of these findings, Prendergast CJ held that both the New South Wales Act of 1840 (Governor Gipps’ Act) and the 1841 Land Claims Ordinance, which replaced the 1840 Act, were merely declaratory of the common law, namely, that there was no ‘body of law or custom, capable of being understood and administered by’ a court of common law:254 native title was, therefore, not recognised by the common law. He continued: On the cession of territory by one civilised power to another, the rights of private property are invariably respected, and the old law of the country is administered, to such extent as may be necessary, by the Courts of the new sovereign. . . . But in the case of primitive barbarians, the supreme executive Government must acquit itself, as best it may, of its obligations to respect native proprietary rights, and of necessity must be the sole arbiter of its own justice. Its acts in this particular cannot be examined or called in question by any tribunal, because there exist no known principles whereon a regular adjudication can be based. Here, then, is one sufficient reason why this Court must disclaim the jurisdiction which the plaintiff is seeking to assume. In this country the issue of a Crown grant undoubtedly implies a declaration by the Crown that the native title over the land which it comprises has been extinguished.255

Thus, Prendergast CJ expressly stated that the law which governed the newly acquired territory of New Zealand depended upon the manner of the Crown’s acquisition of sovereignty over the territory; namely, cession.256 Although he correctly applied the common law doctrine determining the law in force in a newly ceded territory, Prendergast CJ failed to apply the second, and more specific limb, of the common law determining the law which was to govern a new possession; namely, the doctrine prescribing the effect of a change in sovereignty on pre-existing rights to land (at the time of Wi Parata, the doctrine of continuity or the recognition doctrine).257 Furthermore, his classification of New Zealand as a ceded colony contradicts his earlier observation that ‘[o]n the foundation of [the colony of New Zealand], the aborigines were found without any kind of civil government, or any settled system of law’.258 By definition, ‘cession’ requires one  ibid.   ibid 77–78. 255   ibid 78. 256   In terms of the law which governed the newly ceded territory, the law in force at the time of the cession remained in force unless and until it was altered by the authority of the new sovereign: see ch 1 text to n 209; ch 3 text to n 212. 257   See ch 3 text to n 112ff. 258   Wi Parata (n 189) 77. Prendergast CJ’s confusion between cession and occupation/settlement is also evid­ ent in his explanation at 78–79. 253 254

70  The Meaning of Radical Title Pre-Mabo sovereign power ceding sovereignty to another. Where a territory was inhabited yet ‘[n]o body politic existed capable of making cession of sovereignty’, international law regarded (and still does regard) the territory as terra nullius (in the extended legal sense).259 Sovereignty over such territory was acquired by occupation, not cession. Importantly, the common law which governed a settled colony was the law of England in so far as it was applicable to colonial conditions. Prendergast CJ, however, failed to draw this distinction. For the Chief Justice it followed from the assumption that native title was not recognised by the common law that the Treaty of Waitangi, so far as it purported to cede sovereignty, was a nullity at international law.260 So far as the proprietary rights of the natives were concerned, therefore, ‘the so-called treaty merely affirm[ed] the rights and obligations which, jure gentium, vested in and devolved upon the Crown under the circumstances of the case’.261 Prendergast CJ insisted that the Court’s view of the subject was in accordance with Symonds: both Chapman J and Martin CJ apprehended that the case of the Maoris, like that of the Indian tribes of North America, fell within ‘those rules of the law of nations to which we have adverted’.262 Because of his international law focus, Prendergast CJ held that the question of native title was not justiciable. Prendergast CJ also found that this position had not been altered by the Native Rights Act 1865. The decision in Wi Parata is clear authority for three principles: first, the Crown had the fee simple in land subject to the rights of the native titleholders. Secondly, the common law courts knew nothing about this native right of occupancy and, thus, there was no common law jurisdiction to inquire into extinguishment of native title. And, thirdly, because there was no body of customary law on which the Native Rights Act could operate, it did not confer any jurisdiction on the courts. All these conclusions stand in marked contrast to those of Chapman J in Symonds and, it will be seen, with the Judicial Committee’s views in Nireaha Tamaki. Furthermore, there had been a series of Land Acts which were passed prior to 1892 for the purpose of enabling the government to sell and dispose of Crown lands discharged from native claims. The Act in force at the commencement of the action in Nireaha Tamaki263 was the Land Act 1892.264 By section 3 of that Act, Crown lands were defined to mean and include, inter alia: All native lands which have been ceded to Her Majesty by the natives, or have been purchased or otherwise acquired in freehold from the natives on behalf of Her Majesty, or have become vested in Her Majesty by right of Her prerogative.265

In Nireaha Tamaki, Lord Davey reviewed the course of legislation on the rights of the Aboriginal subjects of the Crown, from The Treaty of Waitangi (6 February 1840) to the

259   See chs 1 and 3 text to nn 200 and 98 respectively. The quoted words are Prendergast CJ’s (see below n 260). 260   Wi Parata (n 189) 78: ‘No body politic existed capable of making cession of sovereignty, nor could the thing itself exist’. 261  ibid. 262  ibid. 263   See discussion below n 270ff. 264   Nireaha Tamaki (n 126) 570. 265   Cited in ibid.



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Land Act 1892.266 In his view, the whole legislative regime established during the nineteenth century was established on the assumption that there was ‘such a creature as Maori custom and usage, and that lands were actually held pursuant to such custom and usage’.267 Furthermore, in the context of the statutory regime regulating the Crown’s power to alienate Crown lands, the relationship between lands subject to native title and other lands open to be granted by the Crown was defined. Thus, the Crown did not, pursuant to statute, automatically have the right to dispose of land before any native title in respect of that land had been extinguished or surrendered. No doubt this statutory principle reflected the then understanding of the common law position: the Crown had to actually acquire plenary title to any land before it could grant the land.268 If the statutory regime relating to Maori land rights was based on the common law, what was the legal effect of the declaration, in section 2 of the Land Claims Ordinance 1841, that all unappropriated lands in New Zealand are and remain Crown or domain lands subject however to the Aboriginal occupiers rights under their native law?269 The Judicial Committee in Nireaha Tamaki expressly denied that this declaration conferred title on the Crown. C  Nireaha Tamaki v Baker The appellant, a member of the Rangitane tribe of Maoris, claimed title to certain land based on native ownership under his tribe’s customs and usages or, alternatively, an order of the Native Land Court for the issue of a certificate of title when a proper survey had been furnished to the satisfaction of the Chief Judge. The land in dispute was, however, included in a block of land which the respondent, the Commissioner of Crown Lands in the provincial district of Wellington, had advertised for sale or selection as being Crown land. Claiming title to the land the respondent was about to sell, the appellant sought declarations that the land continued to be owned by the natives and an injunction to restrain the respondent from selling the land or advertising the land for sale. By his defence, the respondent raised, inter alia, objections to the jurisdiction of the Supreme Court to try the matter. By consent, certain issues of law were formulated and submitted for decision. The third and fourth issues are of particular relevance for present purposes, and provided as follows: (3) Can the interest of the Crown in the subject matter of this suit be attacked by this proceeding? (4) Has the Supreme Court jurisdiction to inquire whether as a matter of fact that land in dispute herein has been ceded by the native owners to the Crown?270 These issues of law were ordered to be argued before the Court of Appeal.

266   ibid 566–71. That is, Treaty of Waitangi (6 February 1840), Land Claims Ordinance 1841 (titled ‘New South Wales Act 4 Vict No 7 Repealed’), New Zealand Constitution Act 1852 (15 & 16 Vic c 72), Native Rights Act 1865 (29 Vic c 11), Native Lands Act 1865 (29 Vic c 71), Native Land Act 1873 (37 Vic c 56), Native Land Act 1877 (41 Vic c 91), Land Act 1892 (56 Vic c 37). 267   Lester (n 12) 761–62. See also Nireaha Tamaki (n 126) 577. 268   It will be seen that there is no such distinction in Australia – upon acquisition of sovereignty, the Crown had power to grant land, including land subject to native title, before the native title was surrendered or otherwise extinguished: ch 3 text to nn 145, 273ff; ch 4 text to n 223ff. 269   For the full text of s 2 see above n 194. 270   Nireaha Tamaki (n 126) 563.

72  The Meaning of Radical Title Pre-Mabo The Court of Appeal held that the appellant could not rely on a title based on the order of the Native Land Court because the required survey had never been deposited in compliance with the order. Since the only other title which the appellant could assert was a pure Maori title, the case fell within the direct authority of Wi Parata. Speaking for the Court, Richmond J observed: We see no reason to doubt the soundness of that decision [Wi Parata v Bishop of Wellington] . . . According to what is laid down in the case cited, the mere assertion of the claim of the Crown is in itself sufficient to oust the jurisdiction of this or any other Court in the colony. There can be no known rule of law by which the validity of dealings in the name and under the authority of the Sovereign with the Native tribes of this country for the extinction of their territorial rights can be tested. Such transactions began with the settlement of these Islands; so that Native custom is inapplicable to them. The Crown is under a solemn engagement to observe strict justice in the matter, but of necessity it must be left to the conscience of the Crown to determine what is justice. The security of all titles in this country depends on the maintenance of this principle.271

As a result of Wi Parata and the Court of Appeal’s decision in Nireaha Tamaki, the Maori were left with no rights in their traditional lands; accordingly, the interest of the Crown was considered to be a present, plenary proprietary interest. This interest could not be attacked in proceedings at common law; the acts of the Crown were conclusive that any Aboriginal title had been extinguished. On appeal to the Judicial Committee, however, this reasoning was rejected. Lord Davey, speaking for the Board,272 opened his advice by observing that the appeal raised ‘questions of great moment affecting the status and civil rights of the aboriginal subjects of the Crown’.273 The Judicial Committee found that the order of the Lands Court did not confer any title on the appellant because it was not completed by a certific­ ate. Nevertheless, they thought it was evidence of his title and the Native Land Act did not appear to make obtaining the certificate a condition precedent to the assertion of a native title. Thus, the appeal proceeded on the assumption that the plaintiff was asserting a pure Maori title.274 In relation to the Crown’s title, the Judicial Committee considered the implications of section 2 of the 1841 Land Claims Ordinance. What did this mean? Was it merely declaratory, or did it create some new right in the Crown? Did it vest title in the Crown?275 Lord Davey explained: No doubt this Act of the Legislature did not confer title on the Crown, but it declares the title of the Crown to be subject to the ‘rightful and necessary occupation’ of the aboriginal inhabitants, and was to that extent a legislative recognition of the rights confirmed and guaranteed by the Crown by the second article of the Treaty of Waitangi. It would not of itself, however, be sufficient to create a right in the native occupiers cognizable in a Court of Law.276

  Nireaha Tamaki v Baker (1894) 12 NZLR 483 (NZCA) 488.   The Lord Chancellor, Lord Macnaughten, Lord Davey, Lord Robertson, Sir Henry de Villiers. 273   Nireaha Tamaki (n 126) 566. 274   ibid 573. 275   It is important to note that, even if such legislation does vest a full proprietary title in the Crown, this does not deny that radical title is a bare legal title at common law. That is, a full plenary title would vest in the Crown by virtue of the statute rather than the common law. 276   Nireaha Tamaki (n 126) 567. 271 272



New Zealand Authority 73

Thus, the question was: what title did the Crown have that the legislation was recognising? What title did the Crown have at common law? Speaking of the two preliminary questions of law that were under appeal, Lord Davey said: Their Lordships are somewhat embarrassed by the form in which the third question is stated [namely: Can the interest of the Crown in the subject-matter of this suit be attacked by this proceeding?]. If it refers to the prerogative title of the Crown, the answer seems to be that that title is not attacked, the native title of possession and occupancy not being inconsistent with the seisin in fee of the Crown. Indeed, by asserting his native title, the appellant impliedly asserts and relies on the radical title of the Crown as the basis of his own title of occupancy or possession. If, on the other hand, the unincumbered [sic] title alleged by the respondent to have been acquired by the Crown by extinguishment of the native title be referred to, it is the same question as No. 4 [namely: Has the Court jurisdiction to inquire whether, as a matter of fact, the land in dispute has been ceded by the native owners to the Crown?], and the answer to it must depend on a consideration of the character of the action and the nature of the relief prayed against the defendant [sic].277

Lord Davey used three expressions in connection with the Crown’s title: the ‘prerogative title of the Crown’, ‘the seisin in fee of the Crown’ and ‘the radical title of the Crown’.278 If Lord Davey used these expressions as interchangeable terms, it would appear that the Crown’s title to land at common law amounted to a present proprietary interest. But are they interchangeable terms? Or do the terms refer to the Crown’s rights to land in different senses?279 It will be seen that Lord Davey’s language does in fact refer to the Crown’s rights in different senses and, consequently, does not mean that the Crown is seised in fee against the Aboriginal occupiers. In this context, therefore, his position is identical to Chapman J’s in Symonds and the Privy Council in Southern Rhodesia.280 Although an estate in fee simple is for most practical purposes absolute ownership, in theory a person with a fee simple estate is merely a tenant of the King. In contrast, only the sovereign has the radical or ultimate title to land. This title is evidenced by the sovereign’s right to escheat, forfeiture and bona vacantia, which are all part of the sovereign’s jura regalia and thus part of the King’s prerogative title.281 There is, therefore, a distinction between the Crown’s radical (including prerogative) title and the Crown’s seisin in fee. In addition, there is the distinction which Chapman J drew between ‘actual seisin’ and ‘technical seisin’ (that is, a mere possibility of seisin).282 Of course, this is not a novel concept: the law has long recognised the distinction between seisin in deed and seisin in law. Seisin in law was attributed to those who had an immediate right to enter upon land, but had not exercised it.283 The purpose of this doctrine of ‘constructive seisin’ was merely to allow some of the advantages of seisin to be conferred upon such a person   ibid 574.  ibid. 279   See also Lester (n 12) 1044–45. 280  However, compare the Privy Council’s and Chapman J’s views on the power to grant: Chapman J regarded the power to grant land as an incident of beneficial ownership (above text to n 244) while the Privy Council’s analysis is consistent with the power to grant land being an incident of radical title: below text in para following n 292. 281   Attorney-General of Ontario v Mercer (1883) 8 App Cas 767 (PC) 778. See also Lester (n 12) 1045. 282   Lord Davey specifically referred to aspects of Chapman J’s judgment in Symonds (n 186) 579. 283   eg an heir who had not entered after the death of his father, the land remaining vacant. 277 278

74  The Meaning of Radical Title Pre-Mabo without minimising the importance of seisin.284 This was contrasted with seisin in deed, which could only be acquired by entering on the land.285 Thus, the common law title which the Crown acquires upon acquisition of sovereignty is a radical title to all land. As a concomitant of sovereignty, this title is a right to acquire a seisin in fee and hold in demesne (a possibility of seisin)286 and a right to grant title (a right of control).287 This title encompasses, but is not limited to, the well known prerogative rights to escheat and forfeiture. The Crown is thus seised of these rights (seised of a seignory), but it is not seised in fee of the land itself. Thus, when Lord Davey said that the native title of possession and occupancy is not inconsistent with the Crown’s seisin in fee, what is meant is that unless the Crown has actual seisin (by validly exercising its right of pre-emption or its sovereign power to appropriate the land to itself) the Crown’s technical seisin is compatible with the native title. Consequently, when Lord Davey referred to the ‘unencumbered title’ of the Crown acquired by extinguishment of native title, his Lordship was citing an example of the Crown’s technical seisin having being converted to actual seisin.288 Where the Crown has granted land to a subject, the subject does not rely on the Crown’s seisin in fee; indeed, the subject claims to be seised in fee. Nevertheless, the subject does assert and rely on the Crown’s radical title: to use the words of Brennan J in Mabo, it is the Crown’s radical title, ‘as the postulate of the doctrine of tenure’, that enables the Crown to become Paramount Lord of a tenure created by grant.289 Similarly, although the Crown’s radical or prerogative title is not a present proprietary estate vested in possession, the Crown’s radical title, ‘as a concomitant of sovereignty’, encompasses a right of pre-emption in respect of land subject to native title (which in Australia is effectively another way of saying that the Crown has power to extinguish native title): in asserting a native title, therefore, the claimant impliedly asserts and relies upon the Crown’s radical title.290 Thus, while all the unappropriated lands in New Zealand were declared to be and remain domain lands, they were not held in demesne. The statutory regime merely regulated the Crown’s power of disposition over all land. The appellant argued that the respondent had exceeded his statutory authority by notifying and advertising for sale the land in suit since the native title to that land had not been extinguished. It was further argued that the respondent had no prerogative power to extinguish any native title. The Privy Council refrained from ruling on either of these issues. Indeed, no opinion was expressed on the question whether the appellant’s native title could be extinguished by exercise of the prerogative power, since this question did ‘not arise in the present case’.291 In respect of the argument that the conditions of the statutory authority for the sale of the land had not been complied with, Lord Davey acknowledged that the Court had   AWB Simpson, A History of the Land Law, 2nd edn (Oxford, Clarendon Press, 1986) 43.   F Pollock and FW Maitland, The History of English Law Before the Time of Edward I, vol 2, 2nd edn (Cambridge, CUP, 1911) 60. The law of Bracton’s day spoke of vacant seisin. 286   Symonds (n 186) 391, 392 (Chapman J). 287   ibid 395 (Martin CJ). 288   However, simply because the Crown has power to extinguish native title does not mean that the Crown automatically owns the land as a result of extinguishing such title: see ch 4, section IIff. 289   Mabo (n 1) 48. 290   That is, that the Crown has not exercised its sovereign power to extinguish the native title. 291   Nireaha Tamaki (n 126) 580. On the issue of the Crown’s prerogative powers in a newly acquired territory see ch 3 text to n 209ff. 284 285



Conclusion 75

jurisdiction to inquire whether as a matter of fact the land had been ceded by the native owners to the Crown in accordance with law, but simply said: [I]f the appellant can succeed in proving that he and the members of his tribe are in possession and occupation of the lands in dispute under a native title which has not been lawfully extinguished, he can maintain this action to restrain an unauthorised invasion of his title.292 (emphasis added)

Although not expressly stating that the Crown’s ‘title’ enabled it to validly dispose of any land over which it had sovereignty even though it was not necessarily owner of the land, as the Privy Council had done in Southern Rhodesia, Lord Davey’s treatment of the Crown’s power of disposition over all unappropriated land is not inconsistent with the proposition that the Crown’s power of alienation (which is regulated by statute) is independent of ownership. It is clear that, on the basis of the Privy Council’s decision in Nireaha Tamaki, acquisition by settlement of an inhabited colony does not logically entail the consequence that the Crown acquired full plenary rights of property; rather the Crown was attributed as having a right to acquire plenary rights of property and, in the case of land subject to native title, this right took the form of an exclusive right of pre-emption.293 IV CONCLUSION

Since New Zealand is, contrary to the conventional view, relevant authority in the context of an inhabited settled colony, the Judicial Committee’s advice in Nireaha Tamaki should not be overlooked when examining the legal nature of the Crown’s title to land which is subject to pre-existing Aboriginal title. This case effectively overruled the decision in Wi Parata, which had been authority for the proposition that the Crown had the fee simple in land subject to the rights of the Aboriginal titleholders. Nireaha Tamaki is, therefore, in line with Symonds and the older Privy Council authorities of Amodu and Southern Rhodesia: all of these decisions are open to an interpretation which, contrary to the conventional view, supports the proposition that the Crown does not have a present proprietary estate underlying Aboriginal title. Indeed, while the   Nireaha Tamaki (n 126) 578.   The New Zealand Court of Appeal’s decision in Attorney-General v Ngati Apa [2003] 3 NZCA 117 conclusively overruled the Wi Parata approach. In one of the key judgments, Elias CJ confirmed that ‘[t]he radical title of the Crown is a technical and notional concept. It is not inconsistent with common law recognition of native property, as R v Symonds . . . and Nireaha Tamaki v Baker make clear’: Ngati Apa [30]. She also referred to Brennan J’s description of radical title in Mabo as ‘merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory)’: Ngati Apa [30]. Brennan J’s analysis of radical title in Mabo is discussed in chs 3 and 4. In the context of a claim to land below high-water mark, the Ngati Apa Court confirmed the possible existence in New Zealand of a customary title equivalent to full ownership. The controversial legislative response to the decision – the Foreshore and Seabed Act 2004 (NZ) – is discussed in P McHugh, ‘Setting the Statutory Compass: The Foreshore and Seabed Act 2004’ (2005) 3 New Zealand Journal of Public and International Law 255; cf K McNeil, ‘Legal Rights and Legislative Wrongs: Maori Claims to the Foreshore and Seabed’ in A Erueti and C Charters (eds), Maori Property Rights and the Foreshore and Seabed: The Last Frontier (Wellington, Victoria University Press, 2007) 83; S Dorsett, ‘An Australian Comparison on Native Title to the Foreshore and Seabed’ in A Erueti and C Charters (eds), Maori Property Rights and the Foreshore and Seabed: The Last Frontier (Wellington, Victoria University Press, 2007) 59 who provide alternative perspectives to that offered by McHugh. 292 293

76  The Meaning of Radical Title Pre-Mabo Crown’s title amounted to a present proprietary estate underlying Indian title as defined by the Royal Proclamation on the facts of St Catherine’s, St Catherine’s did not decide (and is thus not authority for the view) that the Crown’s radical title is necessarily a full proprietary estate underlying any pre-existing title which is recognised by the common law. An alternative reading of the cases is also consistent with the proposition that radical title does not automatically confer absolute beneficial ownership of any land, irrespective of the presence of pre-existing rights, in a newly acquired territory. The cases positively delimit the Crown’s rights to land upon acquisition of sovereignty in five ways: first, the acquiring sovereign takes beneficially only what the former sovereign has beneficially (St Catherine’s; Amodu). Secondly, and following from the first, an acquiring sovereign does not acquire a beneficial estate to that part of a former sovereign’s territory which is held beneficially by subjects (Amodu). Thirdly, the acquiring sovereign has a right to validly acquire plenary rights of property and, in the case of land subject to Aboriginal title, this right takes the form of an exclusive right of pre-emption (Nireaha Tamaki). Fourthly, statutory regimes declaring all the unappropriated/unalienated lands to be domain lands merely regulate the Crown’s power of disposition over all land (Nireaha Tamaki). Fifthly, where sovereignty is acquired over territory where there is no issue of pre-existing title, there is no legal presumption in favour of the Crown’s title to the unalienated lands (Southern Rhodesia). It will be seen in the next chapter that Southern Rhodesia is particularly relevant in the context of the Crown’s title to an inhabited settled colony because, in such a colony, although the Crown acquires a radical title to all land, this title is not acquired from a former sovereign. Furthermore, the principles on which the decision in Southern Rhodesia is based turn on the distinction between sovereignty and property rights and are, therefore, of universal application. Indeed, the American authority examined in this chapter makes it clear that the confusion of international law and municipal law, sovereignty and property, has been the reason for concluding the Crown holds the unalienated lands of an inhabited settled colony in demesne. Despite the foregoing analysis of the Privy Council decisions, it has generally been accepted that these decisions were based upon the assumption that, although radical title is equivalent to absolute ownership of land, it is an elastic concept, capable of expanding or contracting depending on the scope of property rights remaining after native title has been taken into account.294 According to this interpretation of the Privy Council decisions, the Crown’s absolute beneficial ownership of all land in a settled territory, subject to the qualification, or burden, of native title, vested upon settlement. This interpretation was no doubt a direct result of the pre-Mabo acceptance of the twofold fictional justification for the universal application of the feudal doctrine of tenure: that the Crown originally owned all lands and all privately held land was originally granted from the Crown. Indeed, in 1971, when the matter of rights in land which did not owe their existence to a Crown grant was considered for the first time by an Australian Court in Milirrpum v Nabalco Pty Ltd,295 Justice Blackburn affirmed the view that ‘the Crown is the source of 294  N Rogers, ‘The Emerging Concept of “Radical Title” in Australia; Implications for Environmental Management’ (1995) 12 Environmental and Planning Law Journal 183, 185. See also Bartlett, ‘The Wik Decision’ (n 25) 34. 295   Above n 9 (also known as the Gove Land Rights Case).



Conclusion 77

title to all land’; that all land is held mediately or immediately of the Crown.296 ‘On the foundation of New South Wales, therefore, . . . every square inch of territory in the colony became the property of the Crown’.297 The contradiction in Justice Blackburn’s298 decision was, however, that while accepting the feudal theory that the Crown originally owned all land underlay the Privy Council’s conception of radical title, he used this theory to deny, rather than to accept common law recognition of native title: a conclusion inconsistent with Privy Council authority which, even on the erroneous view that radical title was equivalent to absolute ownership, had regarded native title as burdening the Crown’s otherwise absolute title. Nonetheless, until 1992, Blackburn J’s decision stood as authority that, at common law, the traditional understanding of the doctrine of tenure prevented common law recognition of native title in Australia. Significantly, however, even before the landmark decision in Mabo, the High Court of Australia appears to have understood the real import of the earlier Privy Council decisions. In 1972, in Administration of Papua and New Guinea v Daera Guba,299 Barwick CJ300 identified the traditional result of the establishment of British sovereignty by ‘occupation and settlement’ as being that though the indigenous people were secure in their usufructuary title to land, the land came from the inception of the colony into the dominion of Her Majesty. That is to say, the ultimate title subject to the usufructuary title was vested in the Crown.301

Although these obiter remarks suggest that the acquisition of sovereignty did confer full beneficial ownership on the Crown, the Chief Justice had ‘assumed, without deciding that . . . the annexation by the British Government did not vest in the Crown the ultimate title to all the land in Papua subject only to any usufructuary or other rights of the Papuans’ (emphasis added).302 Indeed, Barwick CJ contrasted this assumption with the ‘traditional view’ as expressed in Milirrpum.303 Thus, while suggesting the nature of the title acquired by the Crown upon settlement to all land was something less than a present proprietary estate vested in possession, the exact nature of the title was not elucidated. Furthermore, in the earlier High Court decision of Geita Sebea v Territory of Papua,304 Williams J,305 relying on Amodu, described the Papuan’s ‘communal usufructuary title’ as ‘equivalent to full ownership of land’.306 This proposition is inconsistent with the Crown having a present proprietary estate or a substantial and paramount estate underlying any pre-existing title.   Milirrpum (n 9) 245.  ibid. 298   A single judge of the Supreme Court of the Northern Territory. 299   Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 (HCA). See also JT Mugambwa and HA Amankwah, Cases and Materials on Papua New Guinea Land Law and Policy (Hobart, Pacific Law Press, 1996) 128–29. 300   In a judgment in which McTiernan and Menzies JJ concurred. 301   Daera Guba (n 299) 397. 302   ibid 396–97. His Honour’s further observation (at 397) that ‘[a]lienation of that usufructuary title to the Crown completed the absolute fee simple in the Crown’ is also consistent with the argument advanced in this work: although initially only acquiring a radical title to the land, the Crown can acquire absolute ownership by exercising its sovereign power to appropriate land to itself or by a conveyance from the beneficial owner: see generally chs 3, 4. 303   Daera Guba (n 299) 397. 304   Geita Sebea v Territory of Papua (1941) 67 CLR 544 (HCA). 305   With whom Rich ACJ agreed: Geita Sebea (n 304) 550. 306   ibid 557. 296 297

78  The Meaning of Radical Title Pre-Mabo These decisions were, however, rendered prior to the High Court’s fundamental restatement of the common law as it applies to Australia, an inhabited settled colony, as will be seen in the next chapter. This chapter has shown that although the pre-Mabo authorities support the proposition that the Crown has no present proprietary estate in land simply by virtue of its acquisition of sovereignty over the land, there are two lines of authority on the question of the scope of the Crown’s power of disposition over land. One line of authority, represented by Symonds, Johnson and Worcester, regards the Crown’s power of disposition as an incident of beneficial title. Thus, although the Crown does not automatically have title to land, it must acquire title before it can grant the land. The other line of authority, represented by Southern Rhodesia and Nireaha Tamaki, treats the Crown’s power of disposition as an incident of radical, rather than beneficial, title. It follows that the Crown can grant land before it actually owns the land. It has been suggested that the latter line of authority is more persuasive and should be followed. The question is: does the High Court agree? The meaning of the concept of radical title in Australian jurisprudence since Mabo is examined in the next two chapters.

3 The Doctrine of Tenure and the Common Law Consequences of the Classification of an ‘Inhabited’ Colony as ‘Settled’ Post-Mabo: Emergence of the Doctrine of Tenure ad Veritatem and the Doctrine of Continuity Pro-Tempore

I

N CHAPTER ONE it was seen that, pre-Mabo,1 the universal acceptance and application of the English, feudal, doctrine of tenure in Australia precluded recognition of rights in land which were not derived from Crown grant. It was also seen, however, that within strict feudal theory title to land can and does exist both independently of any grant (as in the case of allodial landholding, title by occupancy of a vacant pur autre vie estate and title by adverse possession) and independently of the present sovereign’s grant (as in the case of tenure in ancient demesne and ecclesiastical tenures). Nevertheless, because the fictional explanation of the universality of feudal tenure encompasses Crown grants as well as original Crown ownership, the relevant grant is deemed in law to have been made. Because the very essence of allodial landholding is that land is held of no superior, allodial title and the concept of Lord Paramount are, by definition, mutually exclusive. Allodial title is, therefore, the only true exception to the feudal doctrine of tenure. The designation of Australia as ‘settled’ for the purpose of the common law doctrine of reception meant that the feudal doctrine of tenure was regarded as applicable to describe the legal nature of landholding in Australia. It followed that the concept of radical title was simply regarded as inapplicable in the Australian land law context: upon settlement, the Crown acquired absolute beneficial ownership of all land. Since the Crown was regarded as absolute owner of all land in Australia, there was no room for any concept of non-derivative Aboriginal title. It was seen in chapter two, however, that the Crown’s radical title had been recognised in cases decided in other colonial jurisdictions and, significantly, by the Australian High Court when considering the legal effect of the British annexation of Papua New Guinea. Crucially, it will be seen in this chapter that, post-Mabo, the Australian doctrine of tenure with radical title as its postulate is very different from the English doctrine of tenure. This chapter examines how the Mabo High Court redefined the English doctrine   Mabo v Queensland (No 2) (1992) 175 CLR 1 (HCA).

1

82 ‘Inhabited’ Settled Colonies Post-Mabo of tenure, or, more accurately, defined the doctrine of tenure ad veritatem,2 by developing the concept of radical title. It will be seen that in order to achieve this redefinition, the Court had to clarify two interrelated aspects of the common law: the applicability of the English (feudal) doctrine of tenure in Australia and the legal effect of the classification of Australia as settled. It is in this context that the High Court identified two limbs of radical title: as the ‘postulate of the doctrine of tenure’ and ‘a concomitant of sovereignty’. Under the common law pre-Mabo, the necessary result of the categorisation of a colony as settled was that English law, including the feudal doctrine of tenure, applied ipso jure throughout the colony. This chapter begins by focusing on ‘the postulate of the doctrine of tenure’ limb of radical title and shows that, in the context of this limb, the effect of radical title is that the doctrine of tenure ad veritatem no longer embraces the ubiquitous dual feudal fiction of original Crown ownership and original Crown grant. Indeed, it will be seen that it necessarily follows from the postulate of the doctrine of tenure limb of radical title that Kent McNeil’s original common law Aboriginal title theory can no longer apply in the Australian real property law context without appropriate qualification.3 The redefinition of the doctrine of tenure was, however, only possible because the High Court reexamined the constitutional status of Australia in light of the fact that it was inhabited at the time of settlement. In doing so, the Court considered the relevance of the doctrines of continuity and recognition and the scope of the Crown’s prerogative powers in a settled, yet inhabited, colony. It will be seen that, as a result of the High Court’s restatement of the common law, there is a new doctrine prescribing the system of law that applies upon settlement of an inhabited colony: a modified doctrine of reception, which includes the doctrine of continuity pro-tempore (a merged version of the continuity and recognition doctrines). It will also be seen that despite re-classifying Australia as an inhabited settled colony for the purpose of its new rule, the High Court failed to accord the inhabitants the same protection as the inhabitants of conquered and ceded colonies in respect of their preexisting rights to land: the Crown’s power of extinguishment was greater in inhabited settled colonies; native title was vulnerable to unilateral extinguishment by inconsistent Crown grant per se. Although extinguishment of native title based on the Crown’s prerogative powers relating to land is an incident of the ‘concomitant of sovereignty’ limb of radical title, it will be seen that this discriminatory treatment of inhabitants of settled colonies sanctioned by the High Court’s new rule is not supported by pre-Mabo authority or legal principle. Indeed, it will be seen that the preferable rule reconciles the effect of colonisation on pre-existing property rights in all inhabited colonies and does 2   Indicating that the doctrine of tenure which applies in Australia, an inhabited settled colony, is closer ‘toward the truth’ than its feudal counterpart. The author would like to thank Lindsay Watson for providing the Latin translation. The phrases ‘Australian doctrine of tenure’, ‘redefined doctrine of tenure’ and ‘doctrine of tenure ad veritatem’ are used interchangeably. 3   K McNeil, Common Law Aboriginal Title (Oxford, Clarendon Press, 1989) esp ch 7. It will be seen that, while remaining an important contribution to the doctrine of Aboriginal title in its own right, McNeil’s theory could also apply in post-Mabo Australia if qualified so as to no longer rely on the effect of the English doctrine of tenure as creating a tenurial relationship between the Crown and the Aboriginal occupiers: below text to n 326ff. Furthermore, McNeil’s theory would apply without qualification in the context of the preferable rule that the Crown cannot, by exercise of its prerogative to grant land, interfere with the pre-existing property rights of the inhabitants of any colonial acquisition: see below text in para immediately following n 333. Moreover, McNeil’s analysis of the sources and content of conventional Aboriginal title is significant in the context of recognising Aboriginal customary law as a source of common law title: see below n 119, text to n 124. See also ch 7.



Doctrine of Tenure ad Veritatem  83

not preclude unqualified application of McNeil’s original common law Aboriginal title theory. Although the Mabo High Court did not adopt the preferable rule, it will be seen in chapter seven that its restatement of the common law provides a further and potentially more important basis for recognising Aboriginal rights to land as a source of common law title. The effect of post-Mabo developments, common law and statutory, on the Australian doctrine of tenure are also considered. Although the analysis in this chapter raises the issue of the juridical nature of the Crown’s radical title, this issue requires consideration of both limbs of radical title before it can be conclusively determined. Thus, chapter four comprehensively examines the juridical nature of the Crown’s radical title as ‘a concomitant of sovereignty’ and explores how the two limbs of radical title interact.4 For present purposes, however, the question is three-fold: first, how and why the doctrine of tenure ad veritatem, with radical title as its postulate, diverges from the doctrine of tenure in English land law. Secondly, the implications for common law Aboriginal rights to land of the conceptual content of radical title as defined by ‘the postulate of the doctrine of tenure’ limb. That is, whether radical title as ‘the postulate of the doctrine of tenure’ confers upon the Crown a bare legal title sufficient to support the doctrine of tenure or a full and unfettered beneficial title except to the extent of native title. Although it will be seen in chapter seven that the same land may support both native title and common law Aboriginal customary title claims, if the Crown did not automatically acquire beneficial ownership of any land upon acquisition of sovereignty there is greater scope for recognising Aboriginal customary law as a source of common law title to land. Indeed, the import­ ance of establishing common law Aboriginal rights to land, as opposed to native title, is emphasised in the context of the third question considered in this chapter: the signific­ ance of the High Court’s re-examination of the constitutional status of Australia for titles originating in the common law versus titles not originating in the common law. I  RADICAL TITLE AS THE POSTULATE OF THE DOCTRINE OF TENURE AD VERITATEM5

A  Mabo: The Decision The proceedings which culminated in the 1992 Mabo decision6 commenced 10 years earlier when Eddie Mabo and four co-plaintiffs7 brought an action in the original jurisdiction of the High Court seeking declaratory remedies in respect of land to which they claimed legal rights. The plaintiffs, who were Murray Islanders and members of the Meriam people, conceded that upon annexation of the Murray Islands to the colony of Queensland in 1879,8 the Crown acquired sovereignty over the islands and the islands 4   Ch 4 specifically addresses the implications for the legal nature of the Crown’s title of the grant of a common law leasehold interest. 5   See also U Secher, ‘The Doctrine of Tenure in Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction” – Part 2’ (2006) 13 Australian Property Law Journal 140. 6   Handed down on 3 June 1992. 7   Eddie Koiki Mabo, James Rice, Reverend Davis Passi, Sam Passi, Celia Salee. 8   See UK Letters Patent dated 10 October 1878; Queensland Coast Islands Proclamation dated 18 July 1879; Queensland Government Gazette (Brisbane, 21 July 1879); Queensland Coast Islands Act 1879 (Qld). The Murray Islands are a group of three islands (Mer, Dauar and Waier) situated in the north-eastern part of the Torres Strait which separates Australia and New Guinea.

84 ‘Inhabited’ Settled Colonies Post-Mabo became subject to the laws of Queensland, including the common law. It was also not disputed that, by the common law, the Crown acquired a radical title to the islands. What was in dispute was the further legal effect of the annexation: whether the Crown’s acquisition of sovereignty over the islands had the effect, at common law, of vesting in the Crown not only a radical title to the islands but absolute beneficial ownership of all island lands, or whether the Crown’s acquisition of sovereignty (and radical title) was subject to the continuing traditional land rights of the Meriam people.9 Arguing the latter effect of annexation, the plaintiffs ‘asserted 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’.10 They based their claim to their traditional lands upon three alternative grounds: that they held the land under traditional native title which had survived annexation and acquisition of sovereignty by the Crown; that they possessed usufructuary rights over the land because of their actual possession, use and enjoyment of the islands; and that they owned the land by way of customary title.11 The defendant, arguing the former effect of annexation, denied that there was any legal foundation for the plaintiffs’ claim: any previous interests in land had not survived the effect of annexation and, if this view was incorrect, any rights asserted by the plaintiffs would have been abrogated by the enactment of the Land Act 1910 (Qld). By a majority of six to one, the High Court upheld the plaintiffs’ claim. Six members of the Court12 agreed that the common law of Australia recognises ‘a form of native title which, in cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands’.13 B  The Feudal Basis of Land Law Revisited Since the plaintiffs in Mabo did not deny the Crown’s sovereignty over the Murray Islands nor the Crown’s radical title to the land, the principal question in Mabo was whether the annexation of the Murray Islands to the colony of Queensland in 1879 vested ‘absolute ownership of, legal possession of and exclusive power to confer title to, all land in the Murray Islands’ in the Crown.14 The defendant claimed that several common law doctrines which supported exclusive Crown ownership of all land in the Australian colonies were inconsistent with the recognition of native title; the most important, the doctrine of 9   F Wheeler, ‘Common Law Native Title in Australia – An Analysis of Mabo v Queensland [No 2]’ (1993) 21 Federal Law Review 271, 272. 10   RH Bartlett, The Mabo Decision (Sydney, Butterworths, 1993) vi. 11  See Mabo (n 1) 121 (Dawson J), 176–77 (Toohey J). 12   Mason CJ, Brennan, McHugh, Deane, Gaudron and Toohey JJ, Dawson J dissenting. The leading judgment was that of Brennan J, with whom Mason CJ and McHugh J concurred. Deane and Gaudron JJ delivered a joint judgment. Although Dawson J delivered a dissenting judgment, see Western Australia v The Commonwealth (1995) 183 CLR 373 (HCA) 492, 493 (Dawson J). 13   Mabo (n 1) 15 (Mason CJ and McHugh J summarising the outcome of the case with the express consent of all members of the Court). It should be noted that although the High Court need not have gone beyond the immediate facts affecting the Meriam people, the majority proceeded on a wider basis and regarded the legal issues in Mabo as governed by general propositions of law not confined in their operation to the Murray Islands or the Meriam people: Mabo (n 1) 25–26, 69 (Brennan J), 77 (Deane and Gaudron JJ), 179 (Toohey J). See also Western Australia v Cth (n 12). 14   Mabo (n 1) 25 (Brennan J).



Doctrine of Tenure ad Veritatem  85

tenure.15 It was argued that because the doctrine of tenure was the basis of all legal title to land in Australia, the ultimate owner of all land in Australia was the Crown. Accordingly, anyone holding land in Australia was holding land of the Crown.16 Since the plaintiffs’ native title did not derive from any Crown grant, its recognition was inconsistent with the common law.17 Although the Court was unanimous in confirming that the doctrine of tenure is an essential principle of Australian land law,18 the majority rejected the argument that recognition of native title was inconsistent with the Crown’s radical title and the doctrine of tenure. It will be seen that, in reaching this decision, the majority judges defined the doctrine of tenure ad veritatem and, consequently, retrospectively modified the doctrine of tenure as understood in English law. The six majority justices agreed that the Australian doctrine of tenure is fundamentally different from its English counterpart. Nevertheless, the judgments reveal two distinct approaches vis-a-vis the circumstances in which the Australian doctrine operates: four justices, Brennan J (as he then was), with whom Mason CJ and McHugh J agreed, and Toohey J, attributed a narrow sphere of operation to the Australian doctrine of tenure, while two justices, Deane and Gaudron JJ, suggested a broader application. Consequently, it will be seen that Brennan and Toohey JJ’s version of the Australian doctrine of tenure represents a more radical departure from the English doctrine of tenure than Deane and Gaudron JJ’s version. Furthermore, notwithstanding the similar approaches adopted by Brennan and Toohey JJ, there is an important difference between their judgments: while Brennan J’s conclusion on the role of the doctrine of tenure in Australia is explicit, Toohey J’s is implicit. As Brennan J’s reasons were adopted by Mason CJ and McHugh J, his leading judgment represents a fundamental restatement of the doctrine of tenure as it applies in Australia.19 Accepting that the doctrine of tenure is a basic doctrine of Australian land law20 and that Crown grants are the foundation of that doctrine,21 Brennan J considered it ‘an essential prerequisite that the Crown have such a title to land as would invest the Sovereign with the character of Paramount Lord in respect of a tenure created by grant and would attract the incidents appropriate to the tenure’.22 Accordingly, the ‘Crown was treated as having the radical [ultimate or final] title to all land in the territory over which the Crown acquired sovereignty’.23 This radical title, adapted from feudal theory, had two limbs: it was both ‘a postulate of the doctrine of tenure and a concomitant of sovereignty’.24 Brennan J reasoned that as a postulate of the doctrine of tenure, the 15   ibid 31–32, 59–60 (Brennan J). The three other bases for ownership asserted by the defendant were: the expanded doctrine of terra nullius pursuant to which absolute beneficial ownership flowed automatically from sovereignty because there was ‘no other proprietor’ (which is discussed in ch 4); the patrimony of the nation basis; and the royal prerogative basis (which are both considered below text to n 36ff). The Court examined and rejected all three. 16   For discussion of the development of this basic tenet of the feudal doctrine of tenure see ch 1 text to n 101ff. 17   This position was supported by the decision in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (NTSC) discussed in ch 1 text to n 231ff. 18   Mabo (n 1) 45–52 (Brennan J, Mason CJ and McHugh J concurring), 80, 81, 102–04 (Deane and Gaudron JJ), 122–23 (Dawson J), 180 (Toohey J). 19   See also below text to n 334ff. 20   Mabo (n 1) 45. See also Commonwealth v Yarmirr [2001] HCA 56, (2001) 208 CLR 1 [178] (McHugh J). 21   Mabo (n 1) 47, see also 46. 22   ibid 47–48. 23   ibid 48. 24  ibid.

86 ‘Inhabited’ Settled Colonies Post-Mabo notion of radical title ‘enabled the Crown to become Paramount Lord of all who hold a tenure granted by the Crown’. As a concomitant of sovereignty, the notion of radical title enabled the Crown ‘to become absolute beneficial owner of unalienated land required for the Crown’s purposes’ (emphasis added).25 According to Brennan J, therefore, the two limbs of the Crown’s radical title simply enabled the doctrine of tenure to be applied, and the Crown’s plenary title to be acquired, in colonial Australia. Consequently, Brennan J emphasised that ‘it is not a corollary of the Crown’s acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants’.26 By drawing a distinction between the title to land which the Crown acquired upon acquisition of sovereignty and the rights to the use and benefit of that land which might be vested in some person or entity other than the Crown, Brennan J concluded that ‘[t]he doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant’.27 In this way, Brennan J articulated the limited role of the doctrine of tenure in Australian land law. Only when the Crown exercises its power to grant an estate in land is such land brought within the regime governed by the doctrine of tenure.28 This is critical and represents the essential point of divergence between the Australian and English versions of the doctrine of tenure. Under the Australian doctrine of tenure (ad veritatem), the two-fold feudal fiction of original Crown ownership of all land and original Crown grant no longer applies.29 The fiction of original Crown grant has been rendered otiose and the fiction of original Crown ownership has been replaced with the ‘fiction of original Crown ownership of land which has actually been granted by the Crown’. On the basis of his examination of the doctrine of tenure as it applies in Australia, Brennan J found nothing to compel the conclusion that the Crown acquired more than radical title upon acquisition of sovereignty.30 Recognition of radical title was consistent with the recognition of native title to land: [F]or the radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory).31

 ibid.  ibid. 27   ibid 48–49. 28   See also AJ Bradbrook, SV MacCallum and AP Moore, Australian Real Property Law, 4th edn (Sydney, Lawbook Co, 2007) 35 fn 4, 40 fn 31 citing U Secher, ‘The Doctrine of Tenure in Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction” – Part 1’ (2006) 13 Australian Property Law Journal 107 and Secher (n 5); below text to n 65 and immediately before n 86; Wik Peoples v Queensland (1996) 187 CLR 1 (HCA) 91; ch 4 n 186. cf S Hepburn, ‘Disinterested Truth: Legitimation of the Doctrine of Tenure Post-Mabo’ (2005) 29 Melbourne University Law Review 1, 15 (text in para following fn 71), 16 (text to fn 77). 29   The two-fold fiction accompanying the English (feudal) doctrine of tenure is discussed in ch 1 text to n 101ff. 30   Mabo (n 1) 45–52, esp 48. Brennan J also thought that the ‘English legal system accommodated the recognition of rights and interests derived from occupation of land in a territory over which sovereignty was acquired by conquest without the necessity of a Crown grant’: ibid 49. He relied on Case of Tanistry (1608) Davis 28, 80 ER 516 (IrKB) and Witrong v Blany (1674) 3 Keb 401, 84 ER 789 (KB) as precedent for this view. This is signific­ ant and will be discussed below text to n 227 and n 247ff. 31   Mabo (n 1) 50. 25 26



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Thus, rather than holding that ‘the dispossession of the indigenous inhabitants of Australia’ was worked by ‘a transfer of beneficial ownership when sovereignty was acquired by the Crown’, Brennan J reasoned that this dispossession was achieved ‘by the recurrent exercise of a paramount power to exclude the indigenous inhabitants from their traditional lands as colonial settlement expanded and land was granted to colonists’.32 Brennan J concluded that it was only the fallacy of equating sovereignty and beneficial ownership of land that had given rise to the notion that native title was extinguished by the acquisition of sovereignty;33 the ‘notion that feudal principle dictates that the land in a settled colony be taken to be a royal demesne upon the Crown’s acquisition of sovereignty is mistaken’.34 This aspect of Brennan J’s reasoning clearly supports the proposition that radical title is merely a bare legal title to land, investiture of which creates no automatic beneficial entitlement to the land to which it relates. Radical title merely supports the doctrine of tenure and the Crown’s acquisition of a plenary title to particular land. On this analysis, radical title is a power of alienation which enables the Crown to invest persons, including itself, with beneficial ownership of land. That is, as ‘a concomitant of sovereignty’, radical title confers power on the Crown to validly grant land in every part of Australia so that the doctrine of tenure (with radical title as its ‘postulate’) may apply to that land. Until the Crown validly exercises its sovereign power to create interests in land in itself or others, neither the Crown nor any person claiming a derivative title from the Crown, has any interest in the land.35 Support for this interpretation of radical title is also evident in Brennan J’s treatment of two of the three alternative bases advanced by the defendant in Mabo to establish the proposition of absolute Crown ownership: the patrimony of the nation basis and the royal prerogative basis.36 Considering the ‘royal prerogative’ basis, Brennan J observed that the passing of the management and control of the waste lands of the Crown to the colonial governments, by Imperial legislation, was not a transfer of title, but rather a transfer of political power or governmental function.37 Importantly, Brennan J expressly confirmed that the requirement that the Crown take further steps to become owner of land is not limited to land in respect of which pre-existing native title exists, for: [I]f the Crown’s title is merely a radical title – no more than a postulate to support the exercise of sovereign power within the familiar feudal framework of the common law – the problem of the vesting of the absolute beneficial ownership of colonial land does not arise: absolute and 32   ibid 58. See also ibid 103–09 (Deane and Gaudron JJ); Western Australia v Cth (n 12) 433–34 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). 33   Accordingly, Brennan J concluded that the native title of the indigenous inhabitants was to be treated as a burden on the radical title which the Crown acquired. 34   Mabo (n 1) 52. See also ibid 45. It will be seen that the High Court recognised a new class of settled colony at common law (for the purpose of determining the system of law applicable upon settlement): below text immediately after n 107 and to n 181. 35   Thereby securing the Crown as the original source of all derivative title to land for the purpose of the Australian doctrine of tenure. See Bradbrook, MacCallum and Moore (n 28) 41 fn 35 and text (citing Secher, ‘The Doctrine of Tenure in Australia Post-Mabo – Part 1’ (n 28) and Secher (n 5)), 39 fn 27 and text (citing U Secher, ‘The Meaning of Radical Title: The Pre-Mabo Authorities Explained – Part 1’ (2005) 11 Australian Property Law Journal 179, 181–83 and Secher, ‘The Doctrine of Tenure in Australia Post-Mabo – Part 1’ (n 28) 107–12) . See also Bradbrook, MacCallum and Moore (n 28) 36 fn 6; Mabo (n 1) 47 (Brennan J). 36   The other basis for ownership asserted by the defendant was the ‘no other proprietor’ basis: see above n 15; below text to n 47. 37   Mabo (n 1) 53 citing Williams v Attorney-General for New South Wales (1913) 16 CLR 404 (HCA) 453, 456.

88 ‘Inhabited’ Settled Colonies Post-Mabo beneficial Crown ownership can be acquired, if at all, by an exercise of the appropriate sovereign power.38 (emphasis added)

Brennan J’s analysis of the ‘patrimony of the nation’ basis for attributing to the Crown absolute ownership of all land also indicates that radical title is merely in the nature of a governmental power, enabling the Crown to create interests in land in itself and others, rather than a proprietary right.39 Although Brennan J agreed that ‘it is right to describe the powers which the Crown . . . exercised with respect to colonial lands as powers conferred for the benefit of the nation as a whole’,40 he did not agree that it followed that those powers were proprietary as distinct from political powers.41 Furthermore, despite acknowledging that the ‘nation obtained its patrimony by sales and dedications of land’,42 he observed that this did not mean ‘that the patrimony was realised by sales and dedications of land owned absolutely by the Crown’.43 He clarified that what the Crown acquired was ‘a radical title to land and a sovereign political power over land, the sum of which is not tantamount to absolute ownership of land’.44 In addition to the above aspects of Brennan J’s judgment which clearly support an interpretation of radical title as no more than a bare legal title to land, Brennan J adopted the Privy Council’s treatment of radical title in Amodu Tijani v Secretary, Southern Nigeria;45 a decision which, as shown in chapter two, is authority for the proposition that there is no necessary equivalence between the Crown’s radical title and a full beneficial estate.46 Nevertheless, there are four aspects of Brennan J’s decision which, prima facie, suggested a more generous interpretation of radical title. Not only did Brennan J suggest that in the case of unoccupied lands at settlement, the Crown would be the absolute beneficial owner of the land because ‘there would be no other proprietor’,47 he also attributed to the Crown an ‘automatic expansion of radical title’ in three other situations: where native title expires, where native title is surrendered to the Crown and on the expiration of the term of a lease which has been granted by the Crown (the ‘reversion expectant’ argument).48 Thus, it was not unequivocally clear whether Brennan J regarded radical title as a bare title sufficient merely to support the doctrine of tenure and the Crown’s acquisition of a plenary title, or as conferring full and unfettered beneficial rights except to the extent of native title.49 However, since the issues of property in uninhabited unalienated land and residuary rights to land which had previously been alienated did not arise directly for determination in Mabo, Brennan J’s comments in this context were merely obiter. Moreover, the crucial point is that Brennan J expounded the ‘no other proprietor’ and ‘automatic expansion of radical title’ rationales for attributing absolute beneficial owner  ibid 54.   ibid 52–53. 40   ibid 52 citing R v Symonds (1847) [1840–1932] NZPCC 387 (NZSC) 395. 41   Mabo (n 1) 52. 42   ibid 52–53. 43   ibid 53. 44  ibid. 45   Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 (PC): Mabo (n 1) 49–50. 46   See ch 2 text to n 52ff. 47   Mabo (n 1) 48 referring to the reason given by Stephen CJ in Attorney-General (NSW) v Brown (1847) 1 Legge 312 (NSWSC) 317–18. cf above text to n 38. The Crown would, therefore, have an allodial title to the land. 48   Mabo (n 1) 60, 68. 49   cf Mabo (n 1) 48 and 50. 38 39



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ship of land to the Crown in the context of ‘unalienated land’, that is, land which has not been brought within the regime governed by the doctrine of tenure or which, having been brought within the tenurial regime by Crown grant, has ceased to be within it because the relevant Crown grant has expired. This is important in terms of Brennan J’s articulation of the two limbs of radical title: although radical title, as a concomitant of sovereignty, enables the Crown to grant an interest in land, until a tenure is actually created by Crown grant radical title does not support the doctrine of tenure or its fictional explanation. Thus, since the ‘postulate of the doctrine of tenure’ limb of radical title only applies to ‘alienated land’, it is not an incident of that limb whereby the Crown acquires beneficial ownership of land in the four circumstances suggested by Brennan J.50 As ‘a concomitant of sovereignty’, however, radical title confers power on the Crown to validly grant unalienated land in every part of Australia (even if subject to native title) so that the doctrine of tenure (with radical title as its ‘postulate’) may apply to that land.51 Thus, the issue, which is examined in chapter four, is whether radical title as a concomitant of sovereignty automatically confers beneficial title to land except to the extent of native title. For present purposes, however, it will be seen that the other majority judges in Mabo were also able to redefine the English doctrine of tenure as a result of their treatment of the origin and meaning of the concept of radical title. Indeed, it will be seen that Toohey J’s analysis, like Brennan J’s, indicates that the question of beneficial ownership of unalienated land depends upon the juridical nature of radical title as a concomitant of sovereignty, whereas Deane and Gaudron JJ’s analysis, although equivocal, appears to suggest that the question depends upon the juridical nature of radical title as the ‘postulate of the doctrine of tenure’. Like Brennan J, Toohey J thought that the distinction between sovereignty and title to land was crucial when considering the consequences of the annexation of the Murray Islands.52 Noting that the position of the Crown as the holder of radical title had always been accepted and was not in issue, Toohey J stressed that what was in issue was the consequences that flowed from radical title.53 He considered that the ‘blurring of the distinction between sovereignty and title to land’54 obscured the fact that the acquisition

50   That is, although radical title is the postulate of the doctrine of tenure, the fiction of original Crown ownership no longer applies to land which has not been brought within the doctrine of tenure by appropriate Crown grant (unalienated land, even if unoccupied at settlement). Indeed, even if this fiction was excluded only in respect of land which is both subject to pre-existing native title and which has not been brought within the doctrine of tenure (unalienated and occupied land), the effect of the fiction (in the context of unalienated and unoccupied land) is not to give the Crown title to land: see ch 1 text to n 117ff. Furthermore, although Brennan J’s dictum concerning the Crown’s ‘reversion expectant’ on a lease granted by the Crown suggests that when previously unalienated land is brought within the regime governed by the doctrine of tenure by the Crown grant of a lease the effect of the fiction of original Crown ownership is to confer a beneficial reversionary interest, this argument was rejected by the High Court, in the context of the statutory grant of a pastoral lease, in Wik (n 28): see below text to n 356; ch 4. For the purposes of those aspects of Brennan J’s judgment which suggest that radical title confers a full and unfettered beneficial interest except to the extent of native title, therefore, it is the concomitant of sovereignty limb of radical title either per se or in conjunction with the postulate of the doctrine of tenure limb of radical title that is relevant. This argument is developed in ch 4. 51   It is because this power must be validly exercised that the High Court distinguished between common law and non-common law titles in the context of inhabited settled colonies: see below text to nn 195ff, 276–81, 285–89. cf conquered/ceded colonies, where this distinction has no significance: below text to n 242. cf also the preferable rule which removes the distinction in all inhabited colonies: below text before/after n 303ff. 52   Mabo (n 1) 180 citing McNeil, Common Law Aboriginal Title (n 3) 108. 53  ibid. 54  ibid.

90 ‘Inhabited’ Settled Colonies Post-Mabo of sovereignty did not necessarily involve acquisition of title.55 He explained that the distinction between sovereignty and title was blurred in English law because the sovereignty of the Crown over England derived from the feudal notion that the King owned the land of that country.56 It was the legal fiction ‘that all land was, at one time, in the possession of the King who had granted some of it to subjects in return for services’57 that produced the theory of tenures.58 However, Toohey J also observed that ‘fictions in law are only acknowledged “for some special purpose.”’59 Thus, because the effect of the fiction of past possession was to secure the ‘paramount lordship or radical title of the Crown which [was] necessary for the operation of [the doctrine of tenure]’,60 the fiction should be given no wider application than is necessary for the doctrine to operate.61 For Toohey J, therefore, there was no foundation for concluding that by annexation the Crown acquired a proprietary title or freehold possession of occupied land in Australia. It acquired a radical title only.62 Since the acquisition of sovereignty was effected, at common law, by the Crown’s acquisition of radical title, Toohey J observed that no more was required and, with respect to occupied land, no more was possible.63 Accordingly, the Crown did not acquire a proprietary title to any territory which was in fact inhabited. As a result of Toohey J’s recognition of interests in land which do not owe their existence to a Crown grant, so far as the doctrine of tenure is concerned, the fiction of original Crown ownership required no more than to enable the Crown to become Paramount Lord of all who hold a tenure granted by the Crown. On this approach, although the fiction that land was originally owned by the Crown still operates in Australia, it does so in a limited way: it applies only to land which has, in fact, been granted or alienated by the Crown;64 it does not apply to land which remains unalienated. Although Toohey J’s conclusion is not as explicit as Brennan J’s, the result is the same: the doctrine of tenure ad veritatem applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant.65 Thus, like Brennan J, Toohey J’s judgment supports the proposition that, as a postulate of the doctrine of tenure, radical title does not confer an automatic beneficial entitlement to the land to which it relates. Although it enables the Crown to become Paramount Lord of all who hold a tenure created by Crown grant, it is not required to support the doctrine of tenure unless the Crown has exercised its sovereign power to grant an interest in land. Nevertheless, Toohey J’s obiter comment that ‘[t]he Crown did not acquire a proprietary title to any territory except that truly uninhabited’ (emphasis added),66  ibid.  ibid. 57   ibid 212. 58  ibid. 59   ibid quoting Needler v Bishop of Winchester (1614) Hob 220, 222; 80 ER 367, 369 (CP). See also Mostyn v Fabrigas (1774) 1 Cowp 161, 177; 98 ER 1021, 1030 (KB); Anon, Considerations on the Law of Forfeitures for High Treason, 4th edn (London, J Williams, 1775) 64–65. 60   Mabo (n 1) 212. 61  ibid. 62   ibid 182, 211. 63   ibid 182. 64   In line with Brennan J’s approach: see above text to nn 28–30. 65   Mabo (n 1) 48–49 (Brennan J). Toohey J adopted Brennan J’s reasoning relating to both the postulate of doctrine of tenure and concomitant of sovereignty limbs of radical title in Wik (n 28) 127. 66   Mabo (n 1) 182. See also ibid 211–12. 55 56



Doctrine of Tenure ad Veritatem  91

suggests a more generous interpretation of radical title: as conferring full beneficial ownership except to the extent of native title. This dictum is, however, analogous to Brennan J’s suggestion that the Crown acquired absolute beneficial ownership of all unoccupied land because there was ‘no other proprietor’. Both dicta refer to unalienated land and both justices made it clear that the postulate of the doctrine of tenure limb of radical title is irrelevant to the question of beneficial ownership of unalienated land. Thus, rather than perpetuating the unnecessary use of the fiction of original Crown ownership, Toohey J’s dictum (like Brennan J’s) suggesting that radical title confers a full and unfettered beneficial estate except to the extent of native title, merely indicates that any Crown acquisition of beneficial title to unoccupied and unalienated land is an incident of the concomitant of sovereignty limb of radical title. Although Toohey J’s conclusion on the Australian doctrine of tenure was sufficient to dispose of the defendant’s arguments,67 he nevertheless considered what the legal position would be if the English (feudal) doctrine of tenure applied; that is, if the Crown was deemed to have acquired full beneficial ownership rather than a mere radical title upon acquisition of sovereignty. He indicated that if the fictitious possession of all land by the Crown was to be applied, it may be that it could not operate without also according fictitious lost grants to the present possessors. This would protect people in possession of land where no grant had been made, as the grant would be deemed in law to have been made.68 Indeed, in this context, Toohey J adopted McNeil’s ‘common law aboriginal title’ theory.69 Nevertheless, since the other members of the majority in Mabo did not fully consider this theory, it does not represent the law.70 Furthermore, it will be seen that the aspect of McNeil’s theory which relies on the effect of the feudal doctrine of tenure as creating a tenurial relationship between the Crown and the Aboriginal occupiers, while no doubt correctly stating the law pre-Mabo, requires qualification in the context of post-Mabo Australian land law.71 Significantly, both Brennan and Toohey JJ’s analysis of ‘radical title’ as a postulate of the Australian doctrine of tenure has the consequence that native title is sourced outside the doctrine of tenure. While recognition of native title is a result of the common law doctrine of tenure ad veritatem which applied upon settlement of Australia, native title is neither a ‘common law tenure’72 nor an institution of the common law. Rather, native title exists independently of the doctrine of tenure: indeed, its existence is possible only because of the limited role of the doctrine of tenure in Australia.73 Although Deane and Gaudron JJ also viewed the recognition of native title as a consequence of the received   ibid 211.   ibid 212. 69   For a discussion of McNeil’s theory see below text to n 326ff. 70   B Edgeworth, ‘Tenure, Allodialism and Indigenous Rights at Common Law: English, United States and Australian Land Law Compared after Mabo v Queensland’ (1994) 23 Anglo-American Law Review 397, 422, see also 420–22. Nevertheless, since the Mabo High Court based native title on pre-existing Aboriginal laws and customs, the Court accepted McNeil’s alternative basis for Aboriginal land rights: see below text to nn 326–27. 71   See below text to n 326ff. cf text in para immediately following n 333. 72   Indeed, Brennan J expressly stated that native title is not a ‘common law tenure’: Mabo (n 1) 61. See also Fejo v Northern Territory [1998] HCA 58, (1998) 195 CLR 96 [46] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ): ‘Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law’. 73   The Australian doctrine of tenure and native title are not, however, mutually exclusive because of the concept of co-existence: see below text to n 354; ch 4, section IIff. 67 68

92 ‘Inhabited’ Settled Colonies Post-Mabo doctrine of tenure, which is different from the English version, their conception of the Australian doctrine of tenure, while narrower than the English doctrine, is nevertheless broader than Brennan and Toohey JJ’s. Like the other members of the majority, Deane and Gaudron JJ recognised that the ‘basic tenet’ of English common law principles relating to real property is that all land was owned by the Crown.74 Noting that by 1788 the practical effect of the doctrine of tenure was confined to the Crown’s ownership of escheat and forfeiture rights, their Honours nevertheless emphasised that the underlying thesis of the English law of real property remained that the radical title to (or ultimate ownership of) all land was in the Crown and that the maximum interest which a subject could have in the land was ownership not of the land itself but of an estate in fee in it.75

They did not, however, consider that the existence of radical title in the Crown precluded the ‘preservation and protection, by domestic law of the new Colony, of any traditional native interests in land’ existing under native law or custom at the time the Colony was established.76 For Deane and Gaudron JJ, the consequence of radical title to all land in Australia vesting in the Crown was that: If there were lands . . . in relation to which no pre-existing native interest existed, the radical title of the Crown carried with it a full and unfettered proprietary estate. Put differently, the radical title and the legal and beneficial estate were undivided and vested in the Crown. . . . On the other hand, if there were lands . . . in relation to which there was some pre-existing native interest, the effect . . . would not be to preclude the vesting of radical title in the Crown. It would be to reduce, qualify, or burden the proprietary estate in land which would otherwise have vested in the Crown, to the extent which was necessary to recognize and protect the preexisting native interest.77

Although Deane and Gaudron JJ adopted the view that, upon settlement, radical title conferred rights of beneficial ownership except to the extent of native title, they acknow­ ledged (in conformity with the other members of the majority) that there is a distinction between radical title and beneficial title and that the practical effect of the vesting of radical title in the Crown ‘was merely to enable the English system of private ownership of estates held of the Crown to be observed in the Colony’.78 Deane and Gaudron JJ’s departure from the reasoning of the other majority justices begins with their explanation of the rationale underlying the Australian doctrine of tenure. Rather than focusing on the distinction between sovereignty and title to land as Brennan and Toohey JJ did, they emphasised a strong common law assumption that the act of State establishing a new colony did not extinguish the pre-existing native interests in lands in the colony but that such interests were preserved and protected by the domestic law of the colony after its establishment.79 The effect of this assumption was not ‘to preclude the vesting of radical title in the Crown’80 but to ‘reduce, qualify or burden the   Mabo (n 1) 80.  ibid. 76  ibid. 77   ibid 86–87. 78   ibid 81. 79   ibid 82. As to acts of State see below nn 209, 214 and text immediately following n 242. 80   ibid 86. 74 75



Doctrine of Tenure ad Veritatem  93

proprietary estate in land which would otherwise have vested in the Crown, to the extent necessary to recognise and protect the pre-existing native interest’.81 Thus, rather than concluding that the Australian doctrine of tenure does not apply to rights and interests in land which do not owe their existence to a Crown grant (as Brennan and Toohey JJ did), Deane and Gaudron JJ suggested that the doctrine of tenure applies, prima facie, to all land in Australia but yields to a specific common law assumption vis-a-vis native title. According to this analysis, native title appears to be no more than another exception to the doctrine of tenure as understood in English law. However, since the justices did not refer to any deemed grant in favour of native titleholders in these circumstances, it appears that native title is analogous to the allodial title exception to the doctrine of tenure: a true exception rather than a circumstance giving rise to a deemed grant.82 A significant implication of such an interpretation is that native title is sourced within the common law and is thus a creature of the common law rather than merely being recognised by it. Indeed, Deane and Gaudron JJ used the term ‘common law native title’ to designate respected and protected pre-existing native interests.83 Nevertheless, like the other majority justices, they distinguished between the radical title to and the beneficial ownership of land in circumstances where the relevant assumption applies. Consequently, they too redefined the doctrine of tenure that was received as part of the law of the Australian colonies upon settlement. Deane and Gaudron JJ’s redefinition is not, however, as narrow as Brennan and Toohey JJ’s redefinition.84 Although it appears that Deane and Gaudron JJ attributed beneficial ownership of unalienated and unoccupied land to the Crown as an incident of the postulate of the doctrine of tenure limb of radical title, their judgment is equivocal. Having acknowledged that the practical effect of radical title being vested in the Crown is to enable the Crown to become Paramount Lord of all who hold a tenure created by Crown grant, their conclusion in respect of land that has not been brought within the doctrine of tenure and is not, therefore, held of the Crown, unnecessarily perpetuates the fiction of absolute Crown ownership upon settlement. Mere radical title, as a bare legal title, a power to create interests in land, is sufficient to invest the Crown with the character of Paramount Lord in respect of a tenure created by grant. Alternatively, if Deane and Gaudron JJ’s suggestion that radical title carried with it a full and unfettered proprietary estate where land was not subject to pre-existing native title is correct, then their Honours’ observation that it was ‘conceivably’ the whole of the lands of Australia that were affected by native title,85 would deny automatic acquisition of beneficial ownership of any land in Australia upon settlement.

  ibid 86–87. See also ibid 102–04.   See ch 1 text to n 126ff. 83  eg Mabo (n 1) 86, 88. It will be seen that such a common law classification would accord native title protection from the Crown’s prerogative powers: below text to nn 281–95. 84   Although Deane and Gaudron JJ’s modified doctrine of tenure does not go as far as Brennan and Toohey JJ’s, their approach is not as restrictive as that of the dissenting judgment of Dawson J – ie annexation brought with it a radical title which amounted to an absolute title: Mabo (n 1) 122. 85   Mabo (n 1) 101. However, their Honours considered it ‘unnecessary for the purposes of [their] judgment, and probably now impracticable, to seek to ascertain what proportion of the lands of the continent were affected by such common law native title’: ibid. 81 82

94 ‘Inhabited’ Settled Colonies Post-Mabo C Summary Each substantive judgment in Mabo dealt with the question of the effect of annexation upon the feudal basis of land law differently. Nevertheless, all majority judges viewed the recognition of native title as a consequence of the Australian doctrine of tenure which was received as part of the law of the Australian colonies upon settlement. Mason CJ and McHugh J agreed with Brennan J that the operation of the Australian doctrine of tenure was limited to land that had been granted by the Crown. The tenor of Toohey J’s judgment supports Brennan J’s approach. While Deane and Gaudron JJ appeared to suggest that the doctrine of tenure applies universally in Australia,86 they concluded that the Australian doctrine of tenure is subject to a common law assumption in favour of native titleholders. Essentially, all the majority justices agreed that the doctrine of tenure, which applied upon settlement of Australia, is different from the English feudal counterpart: the Australian doctrine of tenure ad veritatem does not apply automatically to all land. The main point of divergence between the majority justices relates to the extent to which this Australian doctrine of tenure applies to land which has not been granted by the Crown. Nevertheless, all the majority justices were able to redefine the doctrine of tenure because they drew a distinction between the title to land which the Crown acquires upon acquisition of sovereignty, and the rights to the use and benefit of that land which might be vested in some person or entity other than the Crown.87 As a result, the orthodox assumption that sovereignty conferred on the Crown not only radical title to, but also absolute beneficial ownership of, all land was rejected: the Crown acquired only a radical title to all land.88 The separation of radical title to, and beneficial ownership of, land allows the doctrine of tenure, whether based on a narrow or a broad interpretation, to apply to land in Australia without precluding the existence of interests in land, such as native title, that do not owe their existence to a Crown grant. Thus, the Crown’s radical title simply enabled the doctrine of tenure to be applied in colonial Australia. Significantly, however, four members of the majority agreed that the Australian doctrine of tenure, and its subsequent recognition of land title, applies only to land that has been granted or alienated by the Crown.89 This conclusion represents a fundamental departure from the English doctrine of tenure: the two-fold feudal fiction underlying the English doctrine of tenure no longer applies in the Australian context; instead, the ‘fiction of original Crown ownership of land which has actually been granted by the Crown’ applies. Nevertheless, and despite the High Court’s acknowledgment and analysis of the concept of radical title in Mabo, there was no clear majority view as to the meaning of the concept. Radical title had two possible interpretations: either a bare legal title suf  And, thus, prima facie appear to agree with Dawson J: see above n 84.   Thus, the majority distinguished between Crown title to colonies and Crown ownership of land. 88   For almost 150 years Australian courts had held that on acquisition of sovereignty over the Australian colonies, the Crown acquired absolute beneficial ownership of ‘every square inch’ of land: Milirrpum (n 17) 245 (Blackburn J). In Milirrpum, Blackburn J was referring to A-G v Brown (n 47); Williams v A-G (NSW) (n 37); Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 (HCA). In none of these cases except Milirrpum, however, did the issue of the Crown’s title arise in a context involving claims by Aboriginal people. 89   Mabo (n 1) 48 (Brennan J, Mason CJ and McHugh J concurring), 212 (Toohey J). 86 87



Doctrine of Tenure ad Veritatem  95

ficient merely to support the doctrine of tenure and the Crown’s acquisition of a plenary title, or as conferring rights of beneficial ownership except to the extent of native title. Although there was no member of the High Court whose judgment was unequivocally consistent with the former interpretation, many aspects of Brennan J’s analysis, as author of the principal judgment, support this interpretation. Furthermore, and notwithstanding obiter comments by all the justices denying such an interpretation, their explanation of the legal origins and purpose of radical title supports such an approach. What is clear is that at least four of the six majority judges regarded the postulate of the doctrine of tenure limb of radical title as conferring a bare legal title, rather than automatic beneficial entitlement, to the land to which it relates. Although it enables the Crown to become Paramount Lord of all who hold a tenure created by Crown grant, it is not required to support the doctrine of tenure unless the Crown has exercised its sovereign power to grant an interest in land. This limb of radical title is, therefore, irrelevant when considering the question of the Crown’s beneficial ownership of unalienated land (whether occupied or unoccupied). Instead, this question depends upon the juridical nature of radical title as a concomitant of sovereignty. The crucial point is that those elements of the majority’s decision which suggest a more generous interpretation of radical title relate to unalienated land. It will be seen in the next chapter that such elements merely represent new legal fictions created as the counterbalance to the rejection of the fictional explanation of the universality of the feudal doctrine of tenure. Indeed, the first historic aspect of the decision in Mabo lies in the overruling90 of previous decisions which had held that, as a consequence of its acquisition of sovereignty, the Crown acquired absolute beneficial ownership of all land in Australia and that no rights or interests in any land could thereafter be possessed unless granted by the Crown. This development provided the basis for the High Court’s redefinition of the English doctrine of tenure; for the definition of the doctrine of tenure ad veritatem. Nevertheless, all the judgments indicate the enduring importance of the historical foundations of law. In particular, the possibilities suggested by the idea of feudalism, namely radical title enabling the Crown to become Paramount Lord of all who hold a tenure granted by the Crown, demonstrates that the High Court’s approach to legal development in the context of Australian real property law is based upon an appreciation of the influences that have moulded it. The applicability of the redefined doctrine of tenure and its supporting postulate, radical title, was only possible because the High Court rejected the common law concept of ‘desert and uncultivated’91 territory for the purpose of the common law doctrine of reception.

  ibid 58 (Brennan J).   Blackstone uses this term: 1 Bl Comm 104. After citing the relevant passage from Blackstone, Brennan J adopts the phrase ‘desert uninhabited’: Mabo (n 1) 35. 90 91

96 ‘Inhabited’ Settled Colonies Post-Mabo

II  THE RECEPTION OF LAND LAW INTO THE AUSTRALIAN COLONIES REVISITED92

A  Constitutional Status of Australia: An Inhabited Settled Colony It was explained in chapter one that although the manner in which a sovereign acquires a new territory is a matter of international law, the system of law applicable in a newly acquired territory is determined by the common law.93 Thus, the doctrine of terra nullius is relevant at international law in deciding whether a state has acquired sovereignty by purported occupation,94 but it is not relevant at common law in determining the law which is to govern the new possession.95 The doctrine of terra nullius is, however, broadly analogous to the common law concept of colonial acquisition by ‘settlement’ of a ‘desert and uncultivated’96 country pursuant to which the common law of England became the law of the colony in so far as it was applicable to colonial conditions.97 Until Mabo, therefore, when sovereignty of a territory was acquired under the enlarged notion of terra nullius for the purpose of international law, the territory was treated as ‘desert and uncultivated’ country for the purpose of the common law because there was an absence of ‘settled inhabitants’ and ‘settled law’.98 According to pre-Mabo orthodoxy, if an inhabited territory was terra nullius for the purpose of acquisition of sovereignty, it was assumed that there could be no sufficiently organised system of native law and tenure to admit of recognition by the common law. In such circumstances, since the Aboriginal inhabitants and their occupancy of land were ignored when considering title to land in the settled colony, the Crown’s sovereignty over the territory was equated with Crown ownership of the lands therein because there was ‘no other proprietor of such lands’.99 Accordingly, the classification of territory as ‘desert and uncultivated’ has been a basis for attributing absolute beneficial ownership of all land in Australia to the Crown. In this respect, the ‘occupation of’ and the ‘settlement of’ an inhabited territory were equated with the ‘occupation of’ and the ‘settlement of’ an uninhabited territory for the purpose of legitimising the 92   This section is adapted from, and further develops, the author’s article: U Secher, ‘The Reception of Land Law into the Australian Colonies Post-Mabo: The Continuity and Recognition Doctrines Revisited and the Emergence of the Doctrine of Continuity Pro-Tempore’ (2004) 27 University of New South Wales Law Journal 703. 93   See ch 1 text to n 194ff. 94   The Commonwealth Government acknowledged this in its written response to the Draft United Nations Declaration on the Rights of Indigenous Peoples in 1989, stating that ‘[t]erra nullius is a concept of public international law; it would be inappropriate to use it in the context of domestic land claims’: cited by G Simpson ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence’ (1993) 19 Melbourne University Law Review 195, 210. 95   H Gibbs, former Chief Justice of the High Court of Australia, has observed that the ‘expression “terra nullius” seems to have been unknown to the common law’: ‘Foreword’ in MA Stephenson and S Ratnapala (eds), Mabo: A Judicial Revolution – The Aboriginal Land Rights Decision and Its Impact on Australian Law (St Lucia, University of Queensland Press, 1993) xiv. 96   See ch 1 text to 205ff. 97   Mabo (n 1) 35 (Brennan J); 1 Bl Comm 104–05; accord Forbes v Cochrane (1824) 2 B & C 448, 463; 107 ER 450, 456 (KB). 98   Cooper v Stuart (1889) 14 App Cas 286 (PC) 291 (Lord Watson). 99   A-G v Brown (n 47) 319 (Stephen CJ). See also Mabo (n 1) 40 (Brennan J).



The Reception of Land Law into the Australian Colonies Revisited 97

acquisition of sovereignty in international law and in ascertaining the law of the territory on colonisation at common law respectively.100 In Mabo, it was conceded by all parties and accepted by the Court that, under international law, the Crown had acquired sovereignty of Australia by occupancy. Furthermore, all members of the High Court concluded that, at common law, irrespective of the original presence of the Aboriginal inhabitants, Australia was a territory acquired by settlement.101 Accordingly, the question before the Court was whether or not native title was part of the common law of a settled territory.102 However, notwithstanding that the classification of inhabited territory as uninhabited for legal purposes served different functions in inter­ national law and at common law, in rejecting the proposition that the common law of a settled colony did not recognise native title, one of the most contentious aspects of the High Court’s decision has been its treatment of the international law doctrine of terra nullius.103 Accepting that Australia was not, in fact, terra nullius in 1788, yet legally unoccupied for the purpose of acquisition of sovereignty, the High Court equated occupation of an inhabited territory with occupation of an uninhabited territory. Sovereignty was, therefore, acquired under the enlarged doctrine of terra nullius. Despite this conclusion, however, the majority of the High Court expressly disapproved of the application of the concept of terra nullius to an inhabited country and recognised that the notion that inhabited land may be classed as terra nullius no longer commanded general support in international law.104 Although the Court challenged the classification of Australia as a territory acquired by occupation and, therefore, the legal foundation for the Crown’s assertion of sovereignty, the Court’s unanimous view that the acquisition of sovereignty is not justiciable before municipal courts105 precluded any review of this classification.106 100   ‘Occupation’ and ‘settlement’ are used interchangeably in respect of both the common law and the international law doctrines relating to the classification of inhabited land as uninhabited. However, and notwithstanding that the term ‘settlement’ has often been preferred by Australian judges and writers when referring to the international law method of acquisition known as ‘occupation’ (see, eg, Coe v Commonwealth (1979) 24 ALR 118 (HCA) 129), as the common law term is ‘settlement’ (see Mabo (n 1) 33), ‘occupation’ is employed to refer to the international law doctrine. 101   Mabo (n 1) 37–38, 57 (Brennan J), 79–80 (Deane and Gaudron JJ), 138–39 (Dawson J), 182 (Toohey J). Terra Nullius was not mentioned in any of the plaintiffs’ submissions and was not referred to at all during the four days of substantive argument before the High Court of Australia: Mabo v Queensland (No 2) [1991] HCATrans 23 (28 May 1991); Mabo v Queensland (No 2) [1991] HCATrans 24 (29 May 1991); Mabo v Queensland (No 2) [1991] HCATrans 25 (30 May 1991); Mabo v Queensland (No 2) [1991] HCATrans 26 (31 May 1991). 102   Counsel for the plaintiffs made it clear that their submissions were not directed towards arguing that Australia had not been ‘settled’: Mabo v Queensland (No 2) [1991] HCATrans 24 (29 May 1991) 146. Counsel merely argued that, irrespective of the mode of acquisition of a colony, native interests inland were preserved as a burden upon the title of the Crown: Mabo v Queensland (No 2) [1991] HCATrans 23 (28 May 1991) 3. 103   See, eg, the authorities cited by Secher (n 5) n 127. 104   Four of the majority judges expressly relied upon the critical examination of the theory of terra nullius by the International Court of Justice in its Advisory Opinion on Western Sahara [1975] 1 ICJR 12 to reject the doctrine of terra nullius as a basis for the acquisition of inhabited territories by occupation: Mabo (n 1) 40–41 (Brennan J, Mason CJ and McHugh J concurring); 181–82 (Toohey J). The International Court of Justice applied the inter-temporal rule: see below n 106; ch 7 text to nn 472–76. 105   This principle was stated by Gibbs J in New South Wales v The Commonwealth (1975) 135 CLR 337 (HCA) 388: see Mabo (n 1) 31 (Brennan J). See also Post Office v Estuary Radio Ltd [1968] 2 QB 740 (CA) 753; Wacando v Commonwealth (1981) 148 CLR 11 (HCA) 21. 106   Any review of the assertion of sovereignty over Australia by occupation would require the International Court of Justice to apply the inter-temporal rule to determine whether Australia was terra nullius in 1788 when it was colonised. The inter-temporal rule is an established rule of international law and provides that where ‘the rights of parties to a dispute derive from legally significant acts . . . very long ago . . . the situation in question must

98 ‘Inhabited’ Settled Colonies Post-Mabo Municipal courts have, however, jurisdiction to determine the consequences of an acquisition of sovereignty: thus, it was open to the High Court to determine the body of law that applied in the newly acquired territory of Australia. Since the enlarged doctrine of terra nullius had ceased to command acceptance under international law,107 the Court found that its broadly analogous application in the common law of property was brought into question. In contradistinction to their conclusion on the issue of acquisition of sovereignty, the majority refused to follow the ‘orthodox’ approach which equated the settlement of an inhabited territory with settlement of an uninhabited territory in ascertaining the law of a territory on colonisation. The rejection of this approach was, substantially, on three grounds. In addition to the fact that its analogue in international law no longer commanded general support,108 the factual premise underpinning the colonial reception of the common law of England was not only false109 but manifestly unjust.110 Accordingly, six justices of the High Court agreed that the Australian common law should be changed to acknowledge that Australia was not uninhabited for the purpose of determining the system of law applicable upon settlement. Pre-Mabo, however, the common law determining the law which was to govern a new possession had two limbs, one general and one specific. The general limb consisted of a doctrine prescribing the law (whether English or local) that applied in the newly acquired territory (in the case of settlements, the doctrine of reception). The specific limb consisted of a doctrine prescribing the effect of a change in sovereignty on pre-existing rights to land (the doctrine of continuity or the recognition doctrine). Although the English common law, as it was understood in Australia pre-Mabo, appeared certain with respect to determining whether a colony was deemed to be settled, conquered or ceded and whether English law was automatically introduced or local laws retained,111 the common law with respect to the effect of Crown acquisition of territory on pre-existing rights to land was not so clear. B  The Continuity and Recognition Doctrines Revisited According to Brian Slattery’s pioneering work, ‘The Land Rights of Indigenous Canadian Peoples, as Affected by the Crown’s Acquisition of Their Territories’,112 notwithstanding the constitutional status of a colony (whether conquered, ceded or settled), pre-existing

be appraised . . . in the light of the rules of international law as they existed at the time, and not as they exist today’: DJ Harris, Cases and Materials on International Law, 3rd edn (London, Sweet and Maxwell, 1983) 165– 67. In the Island of Palmas Case (United States v The Netherlands) (1928) 2 RIAA 829, the rule was stated thus: ‘judicial fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be determined’. 107   Mabo (n 1) 41 (Brennan J). 108   ibid 40–41 (Brennan J) relying on the International Court of Justice’s Advisory Opinion on Western Sahara (n 104) 39. See also ibid 182 (Toohey J). 109   ibid 17–18, 21–22 (Brennan J), 99–100 (Deane and Gaudron JJ), 182 (Toohey J). 110   ibid 42 (Brennan J), 109 (Deane and Gaudron JJ). 111   See ch 1 text to n 207ff. 112   B Slattery, The Land Rights of Indigenous Canadian Peoples, as Affected by the Crown’s Acquisition of Their Territories (DPhil thesis, Oxford University, 1979) reprinted as B Slattery, The Land Rights of Indigenous Canadian Peoples (Saskatoon, University of Saskatchewan Native Title Centre, 1979).



The Reception of Land Law into the Australian Colonies Revisited 99

private property rights continue by virtue of the ‘doctrine of continuity’113 and cannot normally be unilaterally terminated by the sovereign without recourse to Parliament.114 In contradistinction, Geoffrey S Lester identified two theories in his thesis ‘The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument’.115 The first, which he also refers to as the doctrine of continuity is, however, narrower than the theory suggested by Slattery.116 It applies only where the constitutional situation is one of settlement. For Lester, however, the concept of settlement properly applies to uninhabited or inhabited land, and in the latter case, the existing rights of the Aboriginal inhabitants not only continue, but cannot be terminated by the sovereign without the consent of the owners of those rights.117 The second theory identified by Lester, the recognition theory, applies where the constitutional situation is one of conquest or cession and in such a case, enforceability of the rights of Aboriginal inhabitants depends exclusively on what has or has not been recognised by the sovereign.118 Importantly, both Slattery and Lester conclude, by quite different reasoning, that Aboriginal rights in a settlement are capable of being enforced against the Crown, without any prior requirement of executive or legislative recognition.

113   ibid 50–59, 350–57. In the absence of seizure of privately held lands by act of State during the course of acquisition of territorial sovereignty by the Crown or subsequent confiscation by legislation there is a presumption that private property rights continue after a change in sovereignty. Slattery rejects the distinction between settled and conquered colonies. Slattery initially treated the ‘doctrine of aboriginal rights’ as a colonial law (or Imperial constitutional law) doctrine, which, like other doctrines of colonial law applied automatically to a new colony when the colony was acquired. Thus, the doctrine of continuity automatically applied to inhabited colonies ensuring local indigenous customary laws presumptively continued in force: B Slattery, ‘Understanding Aboriginal Rights’ (1987) 66 The Canadian Bar Review 727, 738; B Slattery, ‘Making Sense of Aboriginal and Treaty Rights’ (2000) 79 The Canadian Bar Review 196, 198–206, esp 201. Slattery has, however, modified his views on the fundamental nature of Aboriginal title in light of the transformation it has undergone since the colonial era as a result of subsequent judicial interpretation. Slattery treats Aboriginal title as the creature of a distinctive body of law known as the ‘common law of aboriginal rights’. This body of law was generated by the policies and practices of the British Crown in its relations with Indigenous American nations during the 17th and 18th centuries and became part of the colonial law governing the Crown’s relations with all of its overseas colonies. Because this body of law provided for the interaction between English and indigenous legal systems, Aboriginal title was neither a right known to any Indigenous system of law nor the English common law. Furthermore, this historical right has evolved into a generative right governed by principles of reconciliation: B Slattery, ‘The Metamorphosis of Aboriginal Title’ (2006) 85 The Canadian Bar Review 255, esp 258, 282 (reprinted in a slightly different form in M Morellato (ed), Aboriginal Law Since Delgamuukw (Aurora, Ont, Canada Law Book, 2009) 145–73). It will be seen in ch 7 that Slattery’s modified conception of Aboriginal title as a generative right governed by principles of reconciliation is important in the context of recognising Aboriginal customary law as a source of common law title. 114  Slattery, The Land Rights of Indigenous Canadian Peoples (n 112) 49, 50, 141–48, 356–57; Slattery, ‘Understanding Aboriginal Rights’ (n 113) 748. See also below text to n 222ff. cf the Mabo High Court’s position below text to n 281. In a conquered or ceded colony the Crown retains prerogative legislative powers by which it could extinguish pre-existing property rights before a representative assembly was summoned or before English law was introduced: Campbell v Hall (1774) Lofft 655, 98 ER 848 (KB); Oyekan v Adele [1957] 2 All ER 785 (PC) 788. 115   GS Lester, The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument (DJuris thesis, York University, 1981). Lester’s thesis was cited by Brennan J in Mabo (n 1) 39. It is summarised by DW Elliott, ‘Aboriginal Title’ in BW Morse (ed), Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada (Ottawa, Carleton University Press, 1991) 48, 100, 110–11. 116   Lester supports this theory as being the more correct approach. 117  Lester, The Territorial Rights of the Inuit of the Canadian Northwest Territories (n 115) 1412–45. 118   ibid 75–81. Slattery refers to this approach as the ‘doctrine of radical discontinuity’: B Slattery, Ancestral Lands, Alien Laws: Judicial Perspectives on Aboriginal Title (Saskatoon, University of Saskatchewan Native Law Centre, 1983) 8–9.

100 ‘Inhabited’ Settled Colonies Post-Mabo This conclusion is also shared by Kent McNeil.119 In his seminal work, ‘Common Law Aboriginal Title’, McNeil argues that the doctrine of continuity as articulated by Slattery is historically correct and that the recognition doctrine arose from the ‘unfortunate misinterpretation of a few isolated decisions’.120 McNeil agrees with Slattery that whatever the constitutional status of a colony, pre-existing private property rights continue as a result of the doctrine of continuity. Although McNeil agrees with Lester’s conclusion that the Crown could not, in its executive capacity and simply by virtue of acquiring sovereignty over a settlement, acquire title to land then occupied by Aboriginal people under their own customary systems of law,121 he disagrees with Lester’s view that in conquered and ceded territories land rights must have been recognised legislatively or execu­tively to be enforceable against the Crown.122 It will be seen that in Mabo, Deane, Gaudron and Toohey JJ applied the doctrine of continuity as articulated by Slattery and adopted by McNeil, whereas Brennan J’s reasoning, which was adopted by Mason CJ and McHugh J, involved elements of both the doctrine of continuity and the recognition doctrine.123 Before considering the judgments in Mabo, it is important to emphasise that McNeil and Slattery have modified their views on the sources and nature of Aboriginal title.124 Indeed, it will be seen in chapter seven that the principles which emerge from their respective reassessments are significant in the context of recognising Aboriginal customary law as a common law source of title. Nevertheless, understanding the Mabo High Court’s new rule for the effect of a change in sovereignty on pre-existing rights in an inhabited settled colony requires an analysis of the majority judgments. Deane and Gaudron JJ interpreted statements in the authorities which support a general proposition to the effect that interests in property which existed under the previous law or custom of a new British colony availed nothing unless recognised by the Crown, as merely acknowledging that the act of State establishing a colony is itself outside the domestic law of the colony and beyond the reach of the domestic courts.125 The act of State doctrine does not, however, preclude domestic court proceedings in which, rather than seeking to challenge the validity of the act of State establishing the colony, ‘it is sought to vindicate domestic rights arising under the common law consequent upon that act of State’.126 Accordingly, it was open to domestic courts to consider the question 119   McNeil has, however, modified his views on the sources and nature of Aboriginal title to reflect its sui generis and jurisdictional aspects: K McNeil, ‘Aboriginal Title and the Supreme Court: What’s Happening?’ (2006) 69 Saskatchewan Law Review 281; K McNeil, ‘Judicial Approaches to Self-Government since Calder: Searching for Doctrinal Coherence’ in H Foster, H Raven and J Webber (eds), Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver, UBC Press, 2007) 129–52; K McNeil, ‘The Post-Delgamuukw Nature and Content of Aboriginal Title’ in Emerging Justice? Essays on Indigenous Rights in Canada and Australia (Saskatoon, University of Saskatchewan Native Law Centre, 2001) 102–35. It will be seen in ch 7 that McNeil’s most recent analysis is important in the context of recognising Aboriginal customary law as a source of common law title. 120   McNeil (n 3) 162ff. McNeil has, however, argued that the constitutionalisation of Aboriginal rights in Canada has been a reason for defining Aboriginal rights narrowly: K McNeil and D Yarrow, ‘Has Constitutional Recognition of Aboriginal Rights Adversely Affected Their Definition?’ (2007) 37 Supreme Court Law Review (2nd) 177. 121   ibid 4. 122   See generally, McNeil (n 3) ch 6. 123   For a different interpretation of the approaches of the majority judges on the effect of Crown acquisition of territory on Aboriginal rights to land see: B Selway, ‘The Role of Policy in the Development of Native Title’ (2000) 28 Federal Law Review 403, 414–16. 124   See above nn 119, 113 respectively. See also ch 7. 125   Mabo (n 1) 81. See also below n 209. 126   Mabo (n 1) 81–82.



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whether the act of State of a particular colony had the effect of negativing the strong assumption of the common law that pre-existing native interests in land in the colony were respected and protected.127 Their Honours relied on the Privy Council decision in in Oyekan v Adele128 which held that the assumption that pre-existing rights are recognised and protected under the law of a British Colony is a ‘guiding principle’. Although noting that this case concerned a colony established by cession, their Honours stated that the ‘guiding principle’ was clearly capable of general application to British Colonies in which Aboriginal inhabitants had rights in relation to land under the pre-existing native law or custom and that it should be accepted as a correct general statement of the common law for two reasons.129 First, because it accords with fundamental notions of justice130 and, secondly, because it is supported by convincing authority, including the New Zealand case of R v Symonds,131 Canadian decisions132 and the majority of the Australian High Court in Administration of Papua and New Guinea v Daera Guba.133 Toohey J also held that the doctrine of continuity is more persuasive than the recognition doctrine and should be followed.134 His Honour relied, however, on Lord Sumner’s statement of principle in the Privy Council in Re Southern Rhodesia135 in the context of conquests, and the Privy Council’s subsequent confirmation of this principle in Amodu Tijani v Secretary, Southern Nigeria136 without limiting it to colonies acquired by conquest.137 Toohey J also considered that the recognition doctrine was at odds with basic values of the common law.138 Accepting the continuity doctrine as the correct approach, Deane, Gaudron and Toohey JJ all concluded, in accordance with the reasoning in R v Symonds,139 that the Crown was not lawfully entitled to effect unilateral extinguishment of native title against the wishes of the native occupants.140 Brennan J used a different approach. Like the other majority justices, he approached the recognition of native title on the basis of the doctrine of continuity.141 Relying essentially on the same authorities as Toohey J,142 Brennan J concluded that a mere change in   ibid 95.   Oyekan v Adele (n 114) 788. 129   Mabo (n 1) 82. 130   ibid 82–83. 131   Above n 40. 132   Calder v Attorney-General of British Columbia [1973] SCR 313 (SCC) 322–23, 328, 380–93; Guerin v R [1984] 2 SCR 335 (SCC) 376–78. 133   Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 (HCA) 557. For a discussion of this case see ch 2 text to n 299ff. 134   Mabo (n 1) 183. 135   Re Southern Rhodesia [1919] AC 211 (PC) cited in Mabo (n 1) 183. For a discussion of this case see ch 2 text to n 81ff. 136   Above n 45. 137   Mabo (n 1) 184. 138  ibid. 139   Symonds (n 40) 391–92. 140   Mabo (n 1) 90–92 (Deane and Gaudron JJ): the Crown’s prerogative to acquire native title required the consent of the owners of those rights. See also ibid 199–205 (Toohey J). 141   Mabo (n 1) 54–57. Brennan J observed that Lord Dunedin’s view to the contrary, in Vajesingji Joravarsingji v Secretary of State for India (1924) LR 51 Ind App 357 (PC), is not in accord with the weight of authority: ibid 55. 142   Brennan J referred to Lord Sumner in Southern Rhodesia (n 135) 233, Case of Tanistry (1608) Davis 28, 80 ER 516 (IrKB) and Witrong and Blany (1674) 3 Keb 401, 402; 84 ER 789, 789 (KB): Mabo (n 1) 55–56. In particular, he interpreted Viscount Haldane’s statement in Amodu Tijani (n 45) 407 in the context of a cession 127 128

102 ‘Inhabited’ Settled Colonies Post-Mabo sovereignty does not extinguish native title to land.143 This conclusion is consistent with the Court’s finding, which undermined the two-fold feudal fiction accompanying the English doctrine of tenure, that the Crown acquired a radical, rather than beneficial, title to all land upon acquisition of sovereignty. Thus, preservation of native title is an incid­ ent of radical title as the postulate of the Australian doctrine of tenure. In contradistinction to the other majority justices, however, Brennan J’s approach to extinguishment of native title involved elements of the recognition doctrine. In this context, he agreed with Lester’s conclusion that: [T]he Recognition Doctrine addresses the question, not of the Crown’s proprietary rights, but of its prerogative power. It is through the election to exercise or to refrain from exercising that prerogative power accorded to the sovereign in territories beyond the realm that antecedent rights may be respected or abrogated.144

Like the recognition doctrine, therefore, Brennan J’s approach to extinguishment is based upon the sovereignty of the Crown: extinguishment of native title is an incident of the Crown’s radical title as a concomitant of sovereignty. The Crown through exercise of its sovereign powers can extinguish native title by its own unilateral act, whether or not the native titleholders have consented.145 On this analysis, native title survived the acquisition of sovereignty and in the absence of express confiscation or subsequent expropriatory legislation it was presumed that the new sovereign had respected the preexisting rights to land.146 Brennan J’s reasoning is crucial. What he was doing was developing a new Australian common law rule for the recognition and extinguishment of native title.147 It will be seen, however, that because the High Court acknowledged Australia’s inhabited status at colonisation, the Court had the opportunity to reconcile the effect of colonisation on as construing the terms of a cession in the light of the general principle by which private property rights survive a change in sovereignty by whatever means: Mabo (n 1) 56. 143   Mabo (n 1) 57. 144   Lester (n 115) 95. See also ibid 881 where Lester states that the ‘Recognition Doctrine addresses the question of the enforceability against the Crown’. Although Lester concludes that the recognition doctrine does not apply to inhabited settled colonies, this is because he applied the received view of the doctrine of reception to such colonies: ibid 961. Accordingly, there was no prerogative power to unilaterally abrogate the property rights of the Crown’s subjects. cf Brennan J’s analysis below text to n 273ff. 145   Mabo (n 1) 63. cf Selway, ‘The Role of Policy in the Development of Native Title’ (n 123) 415; below text to nn 283–95. Although this approach might appear to suggest that the concept of ‘radical title’ is superfluous, it must be remembered that radical title has two limbs: not only is it a concomitant of sovereignty, it is also the postulate of the doctrine of tenure. Thus, as ‘a concomitant of sovereignty’, radical title confers power on the Crown to grant land in every part of Australia, including land subject to non-common law interests such as native title, so that the doctrine of tenure may apply to that land. Contrary to the received view, however, the Crown’s undoubted power of alienation is divorced from the assumption that the Crown holds all lands absolutely. In this way, radical title enables the Crown (to use Brennan J’s words at 48) ‘to become Paramount Lord of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown’s purposes’. Although the concomitant of sovereignty limb of radical title facilitates the Crown’s acquisition of property rights, it will be seen that such acquisition is not entirely unrestrained (below text accompanying n 273ff). It will also be seen in chs 4, 5 and 6, that such acquisition is not automatic: the Crown must have (in Brennan J’s words at 50) ‘exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory’. 146   Mabo (n 1) 54–57 citing Southern Rhodesia (n 135) 233 and Oyekan v Adele (n 114) 788. 147   A new rule which differs from the rules in different jurisdictions: see Fejo (n 72) [51]–[54] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), [101]–[103] (Kirby J). See also Wik (n 28) 182–84 (Gummow J), 214 (Kirby J); Yanner v Eaton [1999] HCA 53, (1999) 201 CLR 351 [132] fn 139 (Callinan J); Western Australia v Ward [2000] FCA 191, (2000) 99 FCR 316 (FCAFC) [93] (Beaumont and von Doussa JJ).



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pre-existing land rights in all inhabited colonies.148 The effect of Crown acquisition of territory on Aboriginal land rights was, nevertheless, only one aspect of the broader common law basis for determining the system of law which was to govern a new territory. The other more general aspect was the doctrine that prescribed the general law that applied in the newly acquired territory (in the case of settlements, the doctrine of reception). In this context, the High Court expressly maintained the conventional distinction between settled and conquered/ceded colonies. There were three different approaches from the six judges: one from Brennan J, one from Deane and Gaudron JJ and one from Toohey J. Significantly, it will be seen that the respective approaches of Brennan J and Deane/ Gaudron JJ correspond with the approaches adopted by these judges when redefining the doctrine of tenure. Since Brennan J’s definition of the Australian doctrine of tenure departs significantly from its English counterpart, so too does his treatment of the doctrine of reception. In light of Deane and Gaudron JJ’s more conservative conception of the Australian doctrine of tenure their treatment of the doctrine of reception accords more with the received view. Although Toohey J’s judgment, like Brennan J’s, appears to depart from the conventional view of the doctrine of reception, Toohey J’s treatment of this doctrine is equivocal. While he examined the effect of the law that applied in Australia upon settlement, he failed to explain why, in light of the doctrine of reception, this particular law applied. This equivocality is perhaps the source of his implicit agreement with Brennan J on the redefinition of the doctrine of tenure on the one hand, and his agreement with Deane and Gaudron JJ on the effect of Crown acquisition of territory on Aboriginal rights to land on the other. For Deane and Gaudron JJ, the fact that New South Wales was validly established as a ‘settled colony’, meant that so much of the common law of England as was ‘reasonably applicable to the circumstances of the colony’ was introduced.149 Although suggesting that ‘[i]f the slate were clean, there would be something to be said for the view that the English system of land law was not, in 1788, appropriate for application to the circumstances of a British penal colony’,150 their Honours accepted as ‘incontrovertible’ that the common law applicable upon establishment of the colony of New South Wales included that general system of land law.151 Nevertheless, the principle that only so much of the common law was introduced as was ‘“reasonably applicable to the circumstances of the Colony”’152 ‘left room for the continued operation of some local laws or customs among the native people and even the incorporation of some of those laws and customs as part of the common law’.153 Deane and Gaudron JJ suggested that if Crown officers had been aware of the numbers of Aboriginal inhabitants in Australia and the sophistication of their laws and customs, they would not have considered Australia unoccupied.154 Furthermore, they distinguished the line of Australian cases155 which supported one or both of the broad propositions that   See discussion below text to nn 302ff.   Mabo (n 1) 79. 150   ibid 81. 151   ibid citing Delohery v Permanent Trustee Co of NSW (1904) 1 CLR 283 (HCA) 299–300; Williams v A-G (NSW) (n 37). 152   Mabo (n 1) 79 quoting Cooper v Stuart (n 98) 291. 153  ibid. 154   ibid 99–100. 155   ibid 102–03. 148 149

104 ‘Inhabited’ Settled Colonies Post-Mabo New South Wales had been unoccupied for practical purposes and that the unqualified legal and beneficial ownership of all land in the colony vested in the Crown as obiter.156 Accordingly, they concluded that the application of settled principle to current understanding of the facts compelled the result that ‘the common law applicable to the colony in 1788, and thereafter until altered by valid legislation, preserved and protected the preexisting claims of Aboriginal tribes . . . to particular areas of land’.157 Thus, although applying the received view of the doctrine of reception, the new element introduced by Deane and Gaudron JJ was the express adjustment of the applicable common law to include a strong assumption that native title interests were respected and protected by the domestic law of the colony after its establishment. In this way, the common law acknowledged that Australia, while settled, was not legally uninhabited. For Deane and Gaudron JJ, the colonial law determining that a colony was settled and that English law was automatically introduced (the doctrine of reception) included the doctrine of continuity. Although Brennan and Toohey JJ also reconciled the two limbs of the common law determining the system of law applicable upon colonisation, their reasoning is fundamentally different.158 According to Justice Toohey, while the Murray Islands were ‘settled’159 by Britain for the purpose of acquisition of sovereignty, ‘it did not follow that [common law] principles of land law relevant to the acquisition of vacant land [were] applicable’.160 He emphasised that the ‘idea that land which is in regular occupation’ should be regarded as terra nullius is unacceptable in law as well as fact.161 Applying current information regarding Aboriginal people to show that the land was in fact occupied on settlement, he observed that upon acquisition of sovereignty, Aboriginal inhabitants became British subjects and, in the case of a settled colony like Australia, their interests were protected by the immediate operation of the common law. Toohey J explained that because the real question was whether the rights of the Meriam people to the Islands survived acquisition of sovereignty, common law dicta which, although acknowledging that on settlement land vested in the Crown, was not made in the context of the question of Aboriginal entitlement to land was irrelevant. It is clear that Toohey J considered the received view of the doctrine of reception as inapplicable to the Australian situation.162 Rather than English law applying as though the territory was uninhabited, the doctrine of continuity applied automatically to protect native rights to land. Although Toohey J stated the result of a different rule for prescribing the law that applied upon settlement of Australia, he failed to explicate this alternative rule: an explication comprehensively proffered by Brennan J. Brennan J observed that the common law had had to ‘march in step with international law in order to provide the body of law to apply in a territory newly acquired by the

  ibid 101–04.   ibid 100. 158   It is suggested that it is because Deane and Gaudron JJ’s analysis preserves the distinction between the doctrine of reception and the doctrine of continuity, that their Honour’s conception of radical title (unlike Brennan and Toohey JJ’s) confers beneficial ownership to land not subject to native title (as was the view under the conventional doctrine of reception). 159   Or ‘occupied’, to use the term of international law. 160   Mabo (n 1) 182. 161  ibid. 162   And thus accords with Brennan J’s approach. 156 157



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Crown’.163 However, he found that the acquisition of territory by way of the enlarged doctrine of terra nullius raised difficulties in determining what law was to be applied when inhabited territories were acquired by occupation (or ‘settlement’, to use the term of the common law).164 He thus transposed the concept of terra nullius into the Australian common law by suggesting that the operation of international law principles governing acquisition of territory had created an anomaly for the domestic law. Although the enlarged doctrine of terra nullius allowed Australia to be acquired by occupation notwithstanding it was inhabited, Brennan J noted that Blackstone165 was unable to expound any rule by which the common law of England became the law of a territory which was not uninhabited when the Crown acquired sovereignty over the territory by occupation.166 Notwithstanding the well-established legal doctrine determining the law that applied in inhabited conquered/ceded colonies, Brennan J was of the view that the common law had to prescribe a doctrine relating to the law to be applied in inhabited settled colonies. Pre-Mabo: The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of municipal law that territory (though inhabited) could be treated as ‘desert uninhabited’ country. The hypothesis being that there was no local law already in existence in the territory, the law of England became the law of the territory (and not merely the personal law of the colonists).167

Thus, the theory advanced to support the application of English law to colonial New South Wales was that because the Aboriginal inhabitants were regarded as ‘barbarous or unsettled and without a settled law’, the law of England, including the common law, became the law of the colony as though it was an uninhabited colony.168 The result was that ‘the settlement of an inhabited territory [was] equated with settlement of an uninhabited territory in ascertaining the law of the territory on colonisation’.169 Although contemporary law accepted that the laws of England, so far as applicable, became the laws of New South Wales and of the other Australian colonies, Brennan J considered that the theory advanced to support the introduction of the common law could be abandoned. Because the present understanding and appreciation of the facts170 ‘[did] not fit the “absence of law” or “barbarian” theory underpinning the colonial reception of the common law of England’,171 Brennan J found that there was no warrant for contemporary law to continue to apply English legal propositions which were the product of that theory.172 163   Mabo (n 1) 32. This was because the manner in which a sovereign acquires new territory is a matter of international law and, by the common law, the law in force in a newly acquired territory depends upon the manner of its acquisition by the Crown. 164   ibid 33. 165   Blackstone’s doctrine only refers to ‘uninhabited’ countries: Bl Comm 104. 166   Mabo (n 1) 33–34. But see below text to n 302ff. 167   ibid 36. 168   ibid 37–38. 169   ibid 37. Moreover, because the indigenous inhabitants of a settled colony and their occupancy of colonial land were ignored in considering title to land, the ‘Crown’s sovereignty over a territory which had been acquired under the enlarged notion of terra nullius was equated with Crown ownership of the lands therein’ Mabo (n 1) 40. 170   The findings of Moynihan J in Mabo v Queensland (No 1) (1988) 166 CLR 186 (HCA) are summarised in Mabo (n 1) 17–18, 21–22, 24. See also Blackburn J’s findings on the evidence presented in Milirrpum (n 17) 267. 171   Mabo (n 1) 39. 172   ibid 38, 39.

106 ‘Inhabited’ Settled Colonies Post-Mabo Brennan J also considered that the theory advanced to justify depriving Aboriginal inhabitants of a proprietary interest in land was unacceptable as it was ‘unjust’173 and ‘depended on a discriminatory denigration of indigenous inhabitants, their social organisation and customs’.174 He strongly criticised the discriminatory doctrine formulated by the Privy Council in Re Southern Rhodesia175 which had been applied to the detriment of the plaintiffs in Milirrpum v Nabalco Pty Ltd.176 In classifying systems of native law for the purpose of determining whether rights under it are to be recognised at common law, the Privy Council implied the existence of a natural hierarchy of societies, some being ‘so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of a civilised society’.177 Accordingly, if the inhabitants of a colony had no meaningful or recognisable system of land tenure, the colony was considered ‘desert uninhabited’ territory for legal purposes.178 For Brennan J, the Court was faced with two options: the Court could either ‘apply the existing authorities and proceed to inquire whether the Meriam people [were] higher ‘in the scale of social organisation’179 than the Australian Aborigines whose claims were ‘utterly disregarded’ by the existing authorities, or the Court [could] overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those that were not.180

Brennan J chose his second option. Since the classification of inhabited land as terra nullius no longer commanded general support in international law,181 and Australia was in fact inhabited at the time of colonisation, Australia could not be considered uninhabited for legal purposes at common law. Consequently, the conventional doctrine of reception could not apply to the colony. Effectively, therefore, Brennan J (and thus the majority) identified Australia as a new class of settled colony at common law: one over which sovereignty had been acquired via occupation of territory that was terra nullius; yet one acquired, at common law, by settlement of territory that was legally inhabited.182 Consequently, Brennan J was of the view that he had to ‘resort to some new and different rule’183 to determine the law that applied in the colony. This allowed him to find,   ibid 42.   ibid 40. See also ibid 42. 175   Above n 135. 176   Above n 17. 177   Southern Rhodesia (n 135) 233–34. 178   This theory suggested a possible ground of distinction in the case of settled territories and led to detailed analysis of the legal and social systems of the plaintiffs in Milirrpum and in Mabo. Brennan J clearly repudiated the Southern Rhodesia doctrine to the extent that it dismissed a priori the claims of native inhabitants of settled colonies: see Mabo (n 1) 40ff. 179   With respect, this was the theory advanced to justify the extension of the doctrine of terra nullius to the acquisition of inhabited territories by occupation under international law, and not to determine what system of law would be applied and what proprietary rights would be recognised in settled colonies: see Southern Rhodesia (n 135) 233–34. 180   Mabo (n 1) 40. His Honour’s reference to terra nullius merely acknowledged that when sovereignty of a territory was acquired under the enlarged doctrine of terra nullius, it followed that for the purpose of the common law that such territory was treated as ‘desert and uninhabited’ although it was inhabited: ibid 36. 181   Relying on the International Court of Justice’s Advisory Opinion on Western Sahara (n 104) 39, 85–86. 182   A division of ceded territories into two classes, those acquired by an act of cession from some sovereign power and those ceded by the general consent of the inhabitants, suggested by the respondent in Sammut v Strickland [1938] AC 678 (PC) 699–701 was rejected by the Privy Council at 700. 183   The words are Marshall CJ’s: Johnson v M’Intosh 21 US 543, 591, 599 (1823) (USSC). cf discussion below text to nn 302ff, above text to n 148. 173 174



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retrospectively, that the common law that applies in inhabited settled colonies presumptively recognises native title rights to land.184 In doing so, he followed Blackstone185 and regarded occupation as the natural law basis of ownership rather than the attainment of any particular degree of civilisation.186 Although Brennan J claimed to have equated ‘the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land’,187 it will be seen that a crucial difference remains in terms of extinguishment of such rights. Nevertheless, Brennan J’s comparison has two significant implications. First, it reinforces Brennan J’s view that, in inhabited settled colonies, elements of both the continuity and recognition doctrines determine the legal status of pre-existing property rights after a change in sovereignty. Secondly, it limits the practical consequences of Brennan J’s reasoning to rights to land.188 According to Brennan J’s analysis, the effect of a change in sovereignty in the context of the inhabited settled colony of Australia was not that English land law immediately applied (as would have been the case in a settled uninhabited territory), but that the local land law continued until replaced by the new sovereign (like the legal position in a conquered territory). In this way, Brennan J incorporated elements of the continuity theory within his new rule for prescribing the law that applied upon settlement of Australia. However, the conclusion that in an inhabited settled colony the new sovereign retained powers by virtue of which it could extinguish local property rights meant that aspects of the recognition theory were also accommodated within this new doctrine.189 It will be seen that the scope of the new sovereign’s power of extinguishment in an inhabited settled colony represents the point of departure from the position in conquered/ ceded colonies.190 By combining aspects of the continuity and recognition doctrines, Brennan J’s conclusion on the effect of a change in sovereignty on pre-existing land rights in Australia effectively reconciled these two formerly distinct doctrines and replaced them with a singular doctrine: ‘continuity pro-tempore’.191 This is a singular doctrine which is an 184   It will be seen that this finding reconciled the two strands of the common law that, pre-Mabo, determined the system of law applicable upon colonisation: see above text immediately following n 110; below text to n 264ff. 185   2 Bl Comm 8. 186   Mabo (n 1) 45. cf the new basis purporting to deny recognition of exclusive native title rights to the territorial sea and intertidal zone introduced by the High Court in Yarmirr (n 20) [94]–[100] (territorial sea) and Western Australia v Ward [2002] HCA 28, (2002) 213 CLR 1 [388] (intertidal zone) and followed by the Federal Court in Lardil Peoples v Queensland [2004] FCA 298, [164]–[167]; Gumana v Northern Territory [2005] FCA 50, (2005) 141 FCR 457 [3], [87], [231]: see generally ch 5. 187   Mabo (n 1) 57. See also ch 7. 188   See below text to nn 305-10; U Secher, ‘The Mabo Decision – Preserving the Distinction between “Settled” and “Conquered or Ceded” Territories’ (2005) 24 University of Queensland Law Journal 35. 189   In this context, Brennan J’s approach accords with Lester’s conclusion that ‘the Recognition Doctrine addresses the question, not of the Crown’s proprietary rights, but of its prerogative power. It is through the election to exercise or to refrain from exercising that prerogative power accorded to the sovereign in territories beyond the realm that antecedent rights may be respected or abrogated’: Lester (n 115) 959. cf McNeil (n 3) 162 fn 6. Lester concluded that the recognition doctrine does not apply to inhabited settled colonies because he applied the received view of the doctrine of reception to such colonies: Lester (n 115) 961. 190   See below text to n 223ff, esp nn 276–81, 285–89. 191   The term ‘continuity pro-tempore’, indicating that continuity is for the time being only, is suggested as a useful alternative for the new assimilated doctrine: see Secher, ‘The Reception of Land Law into the Australian Colonies Post-Mabo’ (n 92) 720 cited with approval in the context of the inhabited settled colony of Australia by the Federal Court of Australia in Gumana (n 186) [121] (Selway J). It will be seen that, irrespective of the colonial classification of a colony, the doctrine of continuity pro-tempore automatically applies as part of the

108 ‘Inhabited’ Settled Colonies Post-Mabo incident of both limbs of radical title. Indeed, Brennan J’s reconciliatory approach bears a striking resemblance to that adopted by the Privy Council in Oyekan v Adele,192 a case involving the cession of land to the British Crown in the former colony of Lagos. In that case, Lord Denning, delivering the judgment of the Judicial Committee of the Privy Council, expounded two propositions. The first was that in inquiring what rights are recognised after a change in sovereignty there is one guiding principle, namely that ‘[t]he courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected’.193 The second proposition was that [w]hilst . . . the British Crown, as Sovereign, can make laws enabling it compulsorily to acquire land for public purposes, it will see that proper compensation is awarded to every one of the inhabitants who has by native law an interest in it: and the courts will declare the inhabitants entitled to compensation according to their interests, even though those interests are of a kind unknown to English law.194

Thus, for both Brennan J and the Privy Council the test for determining whether preexisting rights survive a change in sovereignty has two limbs: the continuity limb and the recognition limb. According to the continuity limb, there is a presumption that preexisting rights survive a change in sovereignty. According to the recognition limb, however, the sovereign has power to unilaterally extinguish these surviving pre-existing rights: a power which, regardless of the constitutional status of a colony, must nevertheless be validly exercised.195 Consequently, in both ‘inhabited settled’ and ceded territories (and, a fortiori, conquered territories) there is a rebuttable presumption of fact that the antecedent rights of the inhabitants survive a change of sovereignty.196 Thus, the continuity limb is a general guiding principle that applies irrespective of the colonial classification of a colony. For Brennan J, however, it is in the context of the recognition limb that the constitutional status of a particular colony is relevant: the scope of the sovereign’s power of unilateral extinguishment varies according to whether a colony is classified as settled or ceded/conquered.197 It will be seen that this aspect of the High Court’s decision is based on the misapplication of the law regarding conventional settled colonial law determining the law which is to govern the new possession. Because the doctrine presumes that pre-existing rights survive a change in sovereignty, it overcomes the difficulty identified by McNeil inherent in the context of the conventional recognition doctrine: because the ‘[recognition doctrine] treats the Crown as presumptively seizing all private property upon acquisition of a territory’, ‘[the recognition doctrine] is difficult to reconcile with the British colonial law rule that local laws remain in force in a conquest or cession until altered or replaced, for local laws involving property would be of little use to the inhabitants if everything had passed to the Crown’: McNeil (n 3) 176. It will also be seen that under the preferable rule, the effect of the doctrine of continuity pro-tempore is the same as the conventional doctrine of continuity in all inhabited colonial acquisitions: see below text to nn 245, 303ff. The preferable rule is, therefore, consistent with McNeil’s conclusion that rather than trying to reconcile the two doctrines, the doctrine of continuity is the correct approach regardless of the constitutional status of a colony: ibid 175–76. 192   See above n 114. 193   Oyekan v Adele (n 114) 788. 194  ibid. 195   It will be seen that it is in this context that the distinction between common law and non-common law titles assumes a key role for inhabited settled colonies according to the Australian High Court: see below text to nn 276–81, 285–89. cf conquered/ceded colonies where this distinction has no significance: below text to n 242. cf also the preferable rule which removes the distinction in all inhabited colonies: below text before/after n 303ff. 196   cf Lester (n 115) 933. 197   Although Lester agrees with this proposition, his conclusion on the scope of the sovereign’s power in a settled colony is in stark contrast to that of Brennan J: ibid 961–62, 933.



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colonies which, by definition, are uninhabited (whether factually or legally) to the reclassified inhabited settled colony of Australia.198 A critical aspect of Brennan J’s treatment of the recognition limb is his agreement with Lester that the recognition doctrine addresses the question of the Crown’s prerogative power rather than the Crown’s proprietary rights.199 Thus, it is through the election to exercise, or to refrain from exercising, the Crown’s prerogative power that antecedent rights may be respected or abrogated.200 Contrary to Lester, however, rather than focusing on what amounts to recognition, Brennan J focused on what amounts to extinguishment.201 As a result, Brennan J’s approach affords no basis for a general presumption for recognition by the new sovereign of pre-existing rights. Rather, recognition is a relative concept. Recognition is not concerned with extinguishment at the time sovereignty is assumed. Nevertheless, it is only possible to draw an inference of recognition of preexisting rights to land in circumstances where the Crown has not validly extinguished those rights. Only when the Crown has, at any given point in time, refrained from exercising its power to validly extinguish pre-existing rights are the rights recognised and thus enforceable. Accordingly, although the new sovereign allows native occupation and use of the land to continue undisturbed, this does not prevent the sovereign from subsequently exercising its power to abrogate those rights. This interpretation of the recognition limb laid the foundation for Brennan J’s (and thus the majority’s) unique conclusion on the scope of the sovereign’s power to unilaterally extinguish native title in Australia: in contradistinction to the generally accepted position in other common law jurisdictions which recognise pre-existing rights to land,202 the sovereign has a power to extinguish native title by inconsistent executive grant per se (without the need for legislative authority to extinguish).203 Crucially, although the Crown has power to unilaterally extinguish pre-existing property rights in conquered,   See below text to nn 276–95, 303ff.   See above text to n 144. 200   Lester (n 115) 959. 201   cf Lester (n 115) 959. 202   Although noting that other common law countries have recognised that there can be grants of interests in land that are inconsistent with the continued existence of native title, the High Court dismissed such cases as providing direct assistance on the ground that they may have been affected by the existence of treaty or other like obligations: see authorities cited in Fejo (n 72) [54] fn 70 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). 203   Mabo (n 1) 68–69 (Brennan J). While Deane and Gaudron JJ also indicated that native title might be extinguished executively by inconsistent Crown grant or appropriation, they concluded that such executive extinguishment would be wrongful and would create a valid claim for compensatory damages in appropriate circumstances: ibid 88–90, 94, 110. See also ibid 192–97 (Toohey J) but note Toohey J concluded that since the plaintiffs claimed no relief in respect of the two leases granted on the Murray Islands, the question whether the leases were effective to extinguish any traditional title (as he called native title) must remain unanswered: ibid 197. See also Western Australia v Cth (n 12) 422, 439 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ); Wik (n 28) 90–92 (Brennan CJ), 124–25 (Toohey J), 176 (Gummow J), 250 (Kirby J). cf Nullagine Investments Pty Ltd v Western Australia Club Inc (1993) 177 CLR 635 (HCA) 656. A clear and plain legislative intention to extinguish is not required provided that the act of the executive reveals a clear and plain intention to extinguish: Fejo (n 72) [47]–[50], [58] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), [95]–[100], [106] (Kirby J). See also Wik (n 28) 185–86 (Gummow J); Ward (n 186) [78], [79] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). cf Ward (n 186) [619], [625] (Callinan J); Wilson v Anderson [2002] HCA 29, (2002) 213 CLR 401 [194] (Callinan J). For the legal position in other jurisdictions see Elliott, ‘Aboriginal Title’ (n 115) 111–20 (Canada), K McNeil, ‘Extinguishment of Native Title: The High Court and American Law’ (1997) 2 Australian Indigenous Law Reporter 365, esp 369; RH Bartlett, Native Title in Australia, 2nd edn (Australia, LexisNexis Butterworths, 2004) 280–81, 284–85; Selway (n 123) esp 424–29; PG McHugh, Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (New York, OUP, 2011) 173ff. See also chs 7 and 8. 198 199

110 ‘Inhabited’ Settled Colonies Post-Mabo ceded and inhabited settled colonies, this power is more ample in the case of an inhabited settled colony. The Crown’s power to acquire land in a conquered/ceded territory after it has accepted the territory into its dominions requires either confiscatory leg­ islation or an agreement to purchase.204 In an inhabited settled colony, the Crown has power to extinguish native title rights and interests in land205 in the absence of legislation, without consent206 and without compensation.207 Although the foregoing analysis suggests that the classification of a colony as either conquered, ceded or ‘inhabited settled’ determines the scope of the sovereign’s power to extinguish pre-existing rights, it does not explain the legal basis for such a distinction. Why did Brennan J treat the sovereign’s power of extinguishment in an inhabited settled colony as greater than the sovereign’s power of extinguishment in conquered or ceded colonies? Why are the Aboriginal inhabitants of settled colonies more vulnerable in this respect than the Aboriginal inhabitants of conquered/ceded colonies? For the High Court, the explanation is found in the traditional distinction between the scope of the Crown’s prerogative powers in settled colonies, on the one hand, and in conquered/ ceded colonies, on the other: a distinction which itself turns on the distinction between extinguishment of common law and non-common law titles.208 However, since the High Court identified Australia as a new class of settled colony, an inhabited settled colony, the question is whether the traditional distinctions determining the scope of the Crown’s prerogative powers are supported by authority and legal principle in this new context. 204   See below text to nn 226ff, 242. The Crown does, however, have power at the time of conquest to seize, and thus acquire title to, both lands and chattels: see authorities referred to by McNeil (n 3) 162 fn 10. Such seizure would be an act of State and thus outside the jurisdiction of the courts: see below n 206 and text. cf Lester (n 115) 933. 205   cf the position with respect to rights held under a common law Aboriginal customary title discussed in ch 7. 206  The High Court accepted Brennan J’s approach to extinguishment by inconsistent grant in Western Australia v Cth (n 12) 439 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). See also below text to n 335ff. 207   Mabo (n 1) 15–16 (Mason CJ and McHugh J summarising the outcome of the case with the express consent of all members of the Court). Since Dawson J also did not think that the extinguishment of native title required the payment of compensation, a majority of four judges were in support of this proposition. cf Lester (n 115) 946, 961–62. In Mabo, Deane, Gaudron and Toohey JJ dissented on the question of compensation: Mabo (n 1) 111, 112 (Deane and Gaudron JJ), 203 (Toohey J). In Wik (n 28), the majority of a differently constituted High Court accepted the ruling of the court in Mabo that native title could be unilaterally extinguished without compensation. The United States Supreme Court has held that there is no presumption that compensation is payable upon extinguishment of Aboriginal title: Johnson (n 183); Tee-Hit-Ton Indians v United States 348 US 272, 279 (1954) (USSC). New Zealand authorities have also accepted the same principles of denying compensation: Symonds (n 40); Te Runanga o Muriwhenua Inc v Attorney-General (1990) 2 NZLR 641 (NZCA). The Canadian position is summarised in Delgamuukw v British Columbia [1997] 3 SCR 1010 (SCC) [169] (Lamer CJ). See also McHugh, Aboriginal Title (n 203) esp 180–83. There is, of course, no need for compensation in the context of legislative extinguishment because being derived from British constitutional law, the legislative power of extinguishment in theory contains no protection against interference with rights by the British Parliaments. Provided a legislative body has the requisite constitutional authority, it can confiscate property by legislative act and vest it in the Crown without compensation if the intention to deny compensation is unequivocally expressed: see K McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (1996) 1 Australian Indigenous Law Reporter 181, 182–83 and authorities cited in fns 12, 13 (reprinted in K McNeil, Emerging Justice? Essays on Indigenous Rights in Canada and Australia (Saskatoon, University of Saskatchewan Native Law Centre, 2001) 357–408). 208   It will be seen that, in contradistinction to the position in conquered/ceded colonies, the Australian High Court held that the scope of the Crown’s prerogative powers in inhabited settled colonies is different for titles derived from the common law and titles not derived from the common law (such as native title): see below text to n 224ff, esp nn 275–81, 285–95. cf McNeil, ‘Extinguishment of Native Title: The High Court and American Law’ (n 203) 369.



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C  Royal Prerogative Powers in the Colonies i  Conquered/Ceded Colonies In the course of acquiring sovereignty by conquest or cession, the acquiring sovereign may unilaterally abrogate antecedent rights by act of State.209 When a territory has been acquired by conquest or cession, the acquiring sovereign also possesses a supreme prerogative executive and legislative power over it, and may change the whole or part of its laws and political form of government.210 Nevertheless, the laws of the conquered or ceded territory remain in force unless and until they are altered by the acquiring sovereign.211 Until altered, therefore, all local laws continue to apply; that is, the doctrine of continuity pro-tempore applies (post-act of State) not only to land rights but to all legal rights.212 Furthermore, after the Crown has accepted the conquered or ceded territory into its dominions, the subjects of the former sovereign are the Crown’s subjects213 with the result that the Crown’s power to deal with them and their property by act of State is at an end.214 Thereafter, the Crown would have to have lawful authority to interfere 209   Cook v Sprigg [1899] AC 572 (PC) 578; Vajesingji Joravarsingji (n 141) 360; NSW v Commonwealth (n 105) 388 and cases there cited; Coe (n 100); Mabo (n 1) 78–79, 95 (Deane and Gaudron JJ), 184 (Toohey J). See also authorities cited by McNeil (n 3) 162 fns 10, 11. 210   Calvin’s Case (1609) 7 Co Rep 1a, 17b; 77 ER 377, 389 (KB); Blankard v Galdy (1693) 2 Salk 411, 411–12; 91 ER 356, 357 (KB); Campbell v Hall (1774) Lofft 655, 741, 742; 98 ER 848, 895, 896 (KB); Milirrpum (n 17) 201–04, cf 223–25. See also 1 Bl Comm 105; J Chitty, A Treatise on the Law of the Prerogatives of the Crown; and the Relative Duties and Rights of the Subject (London, Joseph Butterworth and Son, 1820) 29, see also 25; below n 214 and text. 211   The Crown’s prerogative to legislate in conquered/ceded colonies was, however, subject to two important limitations: (i) it was limited to the life of the conquering sovereign, not devolving on his heirs and successors: Calvin’s Case (1609) 7 Co Rep 1a, 17b; 77 ER 377, 389 (KB); Campbell v Hall (1774) Lofft 655, 744; 98 ER 848, 897 (KB); (ii) it was restricted to the period before a local legislative assembly was established: Campbell v Hall (1774) Lofft 655, 746–48; 98 ER 848, 898–99 (KB). From the moment a constitution embodying a legislative assembly was established (R v Earl of Crewe, ex p Sekgome [1910] 2 KB 576 (CA) 606) or even promised (as it was by the Royal Proclamation of 1763 considered in Campbell v Hall), the Crown’s legislative power ceased, or was at least suspended, unless power to resume it was expressly reserved to the Crown in the grant: Campbell v Hall (1774) Lofft 655, 747; 98 ER 848, 899 (KB); Abeyesekera v Jayatilake [1932] AC 260 (PC); Sammut v Strickland (n 182) 704–09. Once a ‘complete system of laws’ was established (R v Earl of Crewe, ex p Sekgome at 606 in which Roman-Dutch, rather than English, law was introduced), the Crown could not unilaterally alter it and the authority of the local assembly, once established, was irrevocable without the consent of Parliament. 212   See below text to nn 245, 265. See also Mabo (n 1) 34–35 (Brennan J, Mason CJ and McHugh J concurring). This was, however, subject to the qualification that where the English colonists formed their own separate community, that community was governed by English law: see Advocate-General of Bengal v Ranee Surnomoye Dossee (1863) 2 Moo NS 22, 60; 15 ER 811, 824–25 (PC); see also below n 228. The effect of this qualification was the creation of pluralism within the legal regime: HA Amankwah, ‘Post-Mabo: The Prospects of the Recognition of a Regime of Customary (Indigenous) Law in Australia’ (1994) 18 University of Queensland Law Review 15, 17. See also Selway (n 123) 404 fn 3. It will be seen that if the acquiring sovereign introduced English law in toto, holders of land rights under the former regime obtained good title according to the rules of the introduced law: below text to n 227ff. It will be seen that British acquisition of a colony which had been previously colonised by another nation is in an especial position: the doctrine of continuity protempore ensures that the land rights of the original inhabitants are protected under the doctrine of Aboriginal customary title: ch 7 text to n 448ff; ch 8 text to n 597ff. 213   Calvin’s Case (1609) 7 Co Rep 1a, 6a; 77 ER 377, 384 (KB); Campbell v Hall (1774) Lofft 655, 741; 98 ER 848, 895 (KB). See also authorities cited by McNeil, Common Law Aboriginal Title (n 3) 163 fn 12. 214   This is because the ‘act of State’ doctrine falls within the Crown’s prerogative in external affairs: to make war and peace and to conclude treaties and other international agreements: WS Holdsworth, A History of English Law, vol 14, 1st edn (London, Methuen & Co Ltd, 1964) 33ff, esp 34; K Roberts-Wray, Commonwealth and Colonial Laws (London, Stevens & Sons Ltd, 1966) 150, 380. See also Slattery (n 112) 46 fn 4 and text. Although the prerogative to annex territory by act of State is, like all the Crown’s prerogatives, part of the common law (Roberts-Wray, Commonwealth and Colonial Laws, 381), this conclusion does not tell us the effect of

112 ‘Inhabited’ Settled Colonies Post-Mabo with the rights of its subjects. As a general proposition, and irrespective of the colonial classification of a colony, a legislature acting within its constitutional restraints has power to enact legislation which unambiguously extinguishes pre-existing rights or confers authority on the executive to extinguish such rights.215 In the absence of such unequivocal statutory authority, however, any power of the Crown to abrogate preexisting rights would have to be found in the royal prerogative. Although the Crown’s prerogative conferred both legislative and executive powers in conquered/ceded colonies,216 the prerogative was not so extensive in conventional settled colonies where it conferred only executive powers. This was the result of the reception of English law in settled colonies: because the settlers carried with them ‘the rights and immunities of British subjects’, the received laws could not be changed without the consent of Parliament.217 Although there was no legislative authority apart from statute in settled colonies, the Crown did have power to establish courts of justice and constitute a representative assembly.218 The important point is that, legislative expropriation apart, the Crown’s power to abrogate pre-existing rights in conquered, ceded or settled colonies after the act of State establishing the colony has ended must be found in the royal prerogative. This raises the critical question: what prerogatives apply in a newly acquired territory? In this context it is important to distinguish between the two categories into which Chitty divides the royal prerogatives: major prerogatives and minor prerogatives. This distinction is relevant because Chitty attached colonial significance to it: minor prerogatives apply only in a territory where the common law runs; whereas major prerogatives extend to all the the exercise of the prerogative. Importantly, because ‘the rules of international law are matters that fall within the prerogative in relation to external affairs’ (NSW v Commonwealth (n 105) 377), the prerogative in external affairs provides the common law/international law nexus necessary to support the Crown’s acquisition of sovereignty over new territory. The exercise of the prerogative to acquire new territory by act of State is, therefore, chiefly the province of international law. It follows that the question whether a territory has been acquired by the Crown is not justiciable before municipal courts: Mabo (n 1) 32 (Brennan J), 78–79 (Deane and Gaudron JJ); NSW v Commonwealth (n 105) 388. Because of the common law/international law nexus in this context, however, municipal courts have jurisdiction to determine the consequences of an acquisition of sovereignty under municipal law: Mabo (n 1) 32 (Brennan J). cf McNeil (n 3) 164 and fn 13, 160 fn 124. It will also be seen that, although the Crown has full legislative power over conquered/ceded colonies, the Crown cannot make any change to existing laws which are contrary to fundamental principles: Campbell v Hall (1774) Lofft 655, 741– 42; 98 ER 848, 896 (KB); Chitty, A Treatise on the Law of the Prerogatives of the Crown (n 210) 29; McNeil (n 3) 164 fn 14; below n 236. 215   Mabo (n 1) 63ff, esp 75–76 (Brennan J), 110–12 (Deane and Gaudron JJ), 184 (Toohey J). See also 1 Bl Comm 134ff; discussion and authorities cited by McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (n 207) fns 33–50 and text. Such legislative power of extinguishment is, however, subject to a presumption in favour of compensation: see below n 246. 216   See above authorities in n 210. See also 1 Bl Comm 242–44; WS Holdsworth, A History of English Law, vol 11, 1st edn (London, Methuen & Co Ltd, 1938) 234; HV Evatt, The Royal Prerogative (Sydney, Law Book Co Ltd, 1987) 35, where Evatt makes it clear that: ‘If the Legislature makes new rules of conduct which are turned into a workable scheme it is the executive which is impressed with the power to carry out the scheme’ (citing 26 Law Quarterly Review 247). On the difficulty of distinguishing between the Crown’s prerogative power to enact laws from its prerogative executive authority to administer government in conquered/ceded colonies see BH McPherson, The Reception of English Law Abroad (Brisbane, Supreme Court of Queensland Library, 2007) 117. 217   Kielley v Carson (1843) 4 Moo 63, 84–85; 13 ER 225, 233 (PC). See also Blankard v Galdy (1693) 2 Salk 411; 91 ER 357 (KB); Case 15–Anonymous (1722) 2 P Wms 75, 24 ER 646 (Ch); Campbell v Hall (1774) Lofft 655, 744; 98 ER 848, 897 (KB); Sammut v Strickland (n 182) 701; 1 Bl Comm 104–05. This principle questions the validity of the exercise of legislative power in the Australian colonies before a Legislative Council was established: Mabo (n 1) 37 (Brennan J). 218   Kielley v Carson (1843) 4 Moo 63, 84–85; 13 ER 225, 233 (PC); Phillips v Eyre (1870) LR 6 QB 1 (Ex) 18–19. See also McPherson, The Reception of English Law Abroad (n 216) 106–08.



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Crown’s dominions, whether the common law is in operation or not.219 Chitty distinguishes between the two categories of prerogatives in general terms. Minor prerogatives ‘are merely local to England, and do not fundamentally sustain the existence of the Crown, or form the pillars on which it is supported’.220 Major prerogatives, on the other hand, are ‘those fundamental rights and principles on which the King’s authority rests, and which are necessary to maintain it’, the attributes of the King which are inherent in and constitute the King’s political capacity.221 Since the prerogative power to grant land is a major prerogative,222 it applies to all the Crown’s dominions whatever the general system of law and, thus, whatever the nature of the title acquired by the Crown. Moreover, a major prerogative operates as ‘a pure question of English common law’ in a territory where the common law is not in force.223 Accordingly, in the context of the Crown’s major prerogatives, there are the same restraints on the Crown’s prerogative powers that are found in the realm itself.224 Thus, although English law does not run ipso vigore into a conquest or cession, the Crown is restrained in the exercise of its major prerogative powers pro tanto: in accordance with the law of the realm; by the right of the subject not to have property rights taken without consent in the absence of statutory authority.225 Although it will be seen that the Mabo High Court limited the restraints on the Crown’s prerogative to grant land to interests derived from a Crown grant,226 if the Crown permitted conquered or ceded people to remain in possession of land, they obtained good title to it under the laws designated by the Crown ‘without grant or confirmation’ of the Crown.227 This fundamental principle has three limbs: two specific and one general. First, and specifically, if English land law is introduced in toto, the conquered/ceded people acquire a common law title to their land and concomitant protection from the Crown’s prerogative.228 Secondly, and also specifically, if the Crown agrees 219  Chitty (n 210) 25–26. See also Roberts-Wray, Commonwealth and Colonial Laws (n 214) 558–59. Blackstone in a similar classification divides prerogatives into those which are ‘direct’ and those which are ‘incidental’: 1 Bl Comm 232ff. See also Evatt’s analysis of the various schemes that have been offered for the classification of the prerogatives by the leading authorities: Evatt, The Royal Prerogative (n 216) 29–31. 220   Chitty (n 210) 25. 221   ibid. Although Chitty does not refer to these prerogatives as ‘major’, Roberts-Wray considers the expression an apt abbreviation: Roberts-Wray (n 214) 557. 222   Chitty (n 210) 25, 384–89. 223   Sammut v Strickland (n 182) 697. See also Roberts-Wray (n 214) 559. 224   See above n 219, below nn 285, 293–95 and text. cf Lester (n 115) 933. 225   Or indeed any pre-existing rights which the Crown has elected not to confiscate by act of State: this is because, in conquered and ceded colonies, the doctrine of continuity pro-tempore applies to all legal rights: see above text to n 212, below n 265. The acquiring sovereign can import his own domestic law, but, even in the absence of the introduction of English law, the major royal prerogatives apply, the scope of which are defined by law: see above n 223; McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (n 207) 187, see also 185 fn 34. Further to this see E Campbell, ‘Prerogative Rule in New South Wales, 1788–1823’ (1964) 50 Royal Australian Historical Society Journal and Proceedings 161, 161–90. 226   See below text to nn 275–81, cf text to nn 283–95 (the restraints on the Crown’s prerogatives found in the realm apply to all property rights of subjects irrespective of their source). 227   This principle was originally stated in Case of Tanistry (1608) Davis 28, 41; 80 ER 516, 528 (IrKB). This case, which will be discussed in a moment (below text to n 247), was referred to in Mabo (n 1) 49 (Brennan J), 162 (Dawson J). See also below authorities referred to in nn 228 and 229. 228   This principle was originally stated and applied in Case of Tanistry (1608) Davis 28, 80 ER 516 (IrKB): see below n 259. As to the reception of English law in Ireland see Campbell v Hall (1774) Lofft 655, 743, 744; 98 ER 848, 896, 897 (KB); Ruding v Smith (1821) 2 Hag Con 371, 388; 161 ER 774, 780 (Con Ct); cf Evatt (n 216) 265. It was subsequently confirmed in the context of the conquest of Wales in Witrong v Blany (1674) 3 Keb 401, 402; 84 ER 789, 789 (KB): ‘by conquest . . . [the Crown] might alter laws or dispose the lands . . . but there needs no new grant for admitting parties to continue in possession [as] this of it self is a sufficient title

114 ‘Inhabited’ Settled Colonies Post-Mabo that the system of land law prevailing in the conquered/ceded colony shall continue in force, the rights of the Crown with regard to the acquisition, alienation and disposition of pre-existing property are regulated by the legal principles which the Crown expressly sanctions.229 Although this principle accounts for the variety of laws which prevail in different conquered/ceded territories, it also means that the decisions in such territories are not easy to reconcile because they depend upon the extent to which English law superseded the . . . [the words ‘to Christians’ are omitted from this sentence as the distinction between Christian and infidel countries was repudiated in later cases: Campbell v Hall (1774) Lofft 655, 741; 98 ER 848, 896 (KB)]. And all lands by conquest are held mediately or immediately of him, but need no new conveyance from the Crown’. See also Freeman v Fairlie (1828) 1 Moo IA 305, esp 320; 18 ER 117, esp 126 (Ch) where the Court of Chancery cited with approval Justice Buller’s comments in Joseph v Ronald: that if English law has been introduced in a newly acquired colony and the ‘inhabitants hold land of perpetual inheritance, such land, is by that law, deemed to be real property’. Although the issue of pre-existing land rights in inhabited settled colonies is complicated by the Australian High Court’s interpretation of the scope of the Crown’s prerogative powers in such colonies (see below text to nn 276–81, 285–89), it will be seen in ch 7 that the Aboriginal inhabitants can nevertheless acquire similar common law title to their land. It will be seen that the point of divergence between ‘conquered/ceded’ and ‘inhabited settled’ colonies is that, while all pre-existing rights left undisturbed in a conquered/ceded colony post-act of State automatically assume protection either as a common law property right (if English law is introduced) or under the former prevailing law (if former law continues or if former law is purported to be altered contrary to fundamental principles), holders of pre-existing rights in inhabited settled colonies not only have the onus of proving their claims to particular land, but any established rights may (ie ch 7) or may not (ie native title) be sourced in the common law. Thus, it is only in the context of pre-existing titles not secured by the rules of the common law (ie native title) that the Crown’s prerogative power to extinguish is more ample in inhabited settled colonies. 229   Madzimbamuto v Lardner-Burke [1969] 1 AC 645 (PC) 721 (Lord Reid delivering the judgment of the majority of the Judicial Committee) approving Union Government (Minister of Lands) v Estate Whittaker [1916] AD 194 (SAfr) 203 (property rights continued to be governed by Roman-Dutch law post-conquest). Note, however, that ‘whether the Crown is amenable to the jurisdiction of the courts, and its constitutional position in regard to matters of government stand on a different footing, and no inference affecting them could properly be drawn from the establishment of a system of law differing from that of England’: Madzimbamuto v Lardner-Burke at 721. The second limb is also confirmed by the decision in Amodu (n 45) 404 where Viscount Haldane (delivering the judgment of the Judicial Committee) said: ‘Even when [after a change in sovereignty] machinery has been established for defining as far as possible the rights of individuals by introducing Crown grants as evidence of title, such machinery has apparently not been directed to the modification of substantive rights, but rather to the definition of those already in existence and to the preservation of records of that existence’. The decision in Bakare Ajakaiye v Lieutenant-Governor, Southern Provinces [1929] AC 679 (PC), involving a claim for compensation for land taken by the Crown for public purposes in Southern Nigeria under the Public Lands Acquisition Ordinance 1923, also affirms that at common law private property rights survive a change in sovereignty without the necessity of confirmation by Crown grant. The appellants alleged that they owned the land under a native title pre-dating the Crown’s acquisition of sovereignty over Southern Nigeria. The question turned on the true construction of a local Ordinance made in 1908 (Ikoyi Lands Ordinance No 16 of 1908 of Southern Nigeria, subsequently cap 91 of the Laws of Nigeria 1923) to establish a procedure to ascertain and define boundaries to private and public lands in the region where the disputed land was located. Pursuant to s 2, ‘[a]ll private persons claiming to be possessed of lands situated [in the region] shall within twelve months exhibit their titles’. All lands to which no claim was made within the prescribed time were deemed, by s 7, to be Crown lands. Because the appellants had not made a claim under the Ordinance, they argued that s 7 did not apply to lands held under title not originating from Crown grant. Because s 5 expressly provided for the course to be pursued in demarcating lands held under titles not originating from Crown grant, the Privy Council rejected this argument. The important point, however, is that in doing so, the Privy Council made it clear that ‘[w]here private persons come forward and establish titles otherwise than by an original Crown grant, in which case they would be entitled to the demarcation which their new Crown grants would contain, their lands are finally demarcated for them in situ’: Bakare Ajakaiye at 683, see also 682. ‘[I]f parties concerned fail to assert in time a title which they might otherwise have established, they are divested of their property, but this is thanks to their own inaction. The same would have been the result of a statute of limitations or an ordinance making obligatory and effective a system of land registration and of proof of titles by entries in the register’: ibid 686. See also Sunmonu v Disu Raphael [1927] AC 881 (PC) esp 884; Sakariyawo Oshodi v Moriamo Dakolo [1930] AC 667 (PC) esp 668; Twimahene Adjeibi Kojo II v Opanin Kwadwo Bonsie [1957] 1 WLR 1223 (PC).



The Reception of Land Law into the Australian Colonies Revisited 115

existing system.230 In this context, the extent to which local law was retained and English law introduced depended upon the circumstances of each colony: where local law was considered unsuitable for the colonists or they formed separate communities, the colonists were held to be subject to English law.231 Nevertheless, it is clear that unless English law was introduced in toto, the introduction of the system of Crown grants was regarded as having been brought about ‘mainly, if not exclusively, for conveyancing purposes, and not with a view to altering substantive titles already existing’.232 Indeed, it was ‘uniformly held that [such] government grants do not convey English titles or English rights of ownership. . . . It leaves the interests of the . . . occupiers intact, to be determined, as theretofore, by the local law’.233 This is crucial: where the old laws remain in force, they continue to govern ‘the transactions of the ancient [inhabitants] with each other, and with the new comers’. It is only with respect to the ‘separate transactions’ of the new 230   Kodeeswaran v Attorney-General of Ceylon [1970] AC 1111 (PC) 1116–17. Lord Diplock (delivering the judgment of the Board) held that, in determining the preliminary issue in the case, ‘English law is relevant only to the extent that it has been adopted as part of [the law of Ceylon]’: ibid 1116. In deciding whether English law had been adopted in the context of the preliminary issue (whether a civil servant had a right of action against the Crown for salary due in respect of services which he had rendered), it was held that ‘[t]he words of [the Proclamation of September 23 1799] must be understood in the meaning attaching to them in the closing years of the eighteenth century and in light of the historical circumstances in which the Proclamation was made . . . Read in this historical context, the actual wording of the Proclamation with its references to “police” . . . to “institutions” and to “ministerial officers”, is in their Lordships’ view more apt to indicate an intention to restore in the recently acquired territory the previously existing system of law as respects the civil administration of Ceylon’: ibid 1117. cf Nakkuda Ali v Jayaratne [1951] AC 66 (PC) where Lord Radcliffe (delivering the judgment of the Board) held that because there is nothing in ‘the law of Ceylon that corresponds to the “writs of mandamus, quo warranto, certiorari, procedendo and prohibition” . . . the jurisdiction of the Supreme Court to grant and issue mandates in the nature of such writs is derived exclusively from s 42 [of the Courts Ordinance] . . . Moreover, there can be no alternative to the view that when s 42 gives power to issue these mandates “according to law” it is the relevant rules of English common law that must be resorted to’: 74–75. It appears, therefore, that the extent to which English law superseded the existing system rests largely on the construction of instruments regulating specific aspects of law within the colony. Although the cases cited in this note did not involve principles of property law, it will be seen in a moment that the introduction of the system of Crown grants in a conquered/ceded colony did not affect pre-existing property rights. 231   Ruding v Smith (1821) 2 Hag Con 371, 380–84; 161 ER 774, 777–79 (Con Ct) where Lord Stowell explained the proposition ‘that the laws of a conquered country remain till altered by the new authority’: ‘I have to observe, first, that the word remain has, ex vi termini, a reference to its obligation upon those in whose usage it already existed, and not to those who are entire strangers to it, in the whole of their preceding intercourse with each other. Even with respect to the ancient inhabitants, no small portion of the ancient law is unavoidably superseded by the revolution of government that has taken place. The allegiance of the subjects, and all the law that relates to it – the administration of the law in the sovereign, and appellate jurisdictions – and all the laws connected with the exercise of sovereign authority – must undergo alterations adapted to the change. . . . But, secondly, though the old laws are to remain, it is surely a sufficient application of such terms “that they shall remain in force”, if they continue to govern (so far as they continue) the transactions of the ancient settlers with each other, and with the new comers. To allow that they shall intrude into all the separate transactions of these British conquerors is to give them a validity, which they would otherwise want, in all cases whatever’: ibid 382–83; 778. It was, however, pointed out that it sometimes happens ‘that the conquered are content to adopt for their own use such part of the laws prevailing before the conquest as they may find convenient under the change of authority to retain’: ibid 380–81; 777–78. See also Freeman v Fairlie (1828) 1 Moo IA 305, esp 322–23, 325; 18 ER 117, esp 127, 128 (Ch); Advocate-General of Bengal v Ranee Surnomoye Dossee (1863) 2 Moo NS 22, 59–61; 15 ER 811, 824–25 (PC); Yeap Cheah Neo v Ong Cheng Neo (1874–75) LR 6 PC 381 (PC) 394 which approved a statement of the law by Benson Maxwell CJ in Choa Choon Neoh v Spottiswoode (1869) 1 Ky 216 (HC Straits Settlements); Terrell v Secretary of State for Colonies [1953] 2 All ER 490 (QB) 493; cf Campbell v Hall (1774) Lofft 655, 741; 98 ER 848, 895 (KB) but see Ruding v Smith (1821) 2 Hag Con 371, 383–84; 161 ER 774, 778–79 (Con Ct) ; Mabo (n 1) 37 (Brennan J). See also above n 212. The English common law was incorporated as part of the domestic law of a newly acquired colony by Order in Council, proclamation or otherwise under the prerogative powers of the Crown. 232   Amodu (n 45) 407–08. 233   Oyekan v Adele (n 114) 790.

116 ‘Inhabited’ Settled Colonies Post-Mabo comers that they did not apply (emphasis added).234 It followed that, in the event of inconsistency between a pre-existing title and a title derived from a subsequent Crown grant, the sanctioned former law prevailed.235 Although the first two limbs cover most colonial circumstances in the conquered/ ceded context, the third and general limb applies in any other case (and confirms the first two limbs): although the King ‘has a power to alter the old and to introduce new laws’ in conquered/ceded colonies, he ‘cannot make any change contrary to fundamental principles’.236 Holdsworth has suggested that it is probable that this proposition referred ‘principally’ to ‘the principles of the common law’.237 It is clear that the right to property has always been regarded as a fundamental common law principle.238 Indeed, limb one confirms that the Crown cannot grant land so as to prejudice common law property rights.239 While pre-existing Aboriginal property rights are not common law in nature or origin, the fact that conquered/ceded people had pre-existing rights (including rights of property) at the time of conquest/cession was never disputed. That these rights were accepted as an incident of a territory that was inhabited240 is clear from limb two. There   Ruding v Smith (1821) 2 Hag Con 371, 383; 161 ER 774, 778 (Con Ct). See also above n 231.   In addition to the leading authorities cited above nn 229, 231, 232, there are obiter dicta to the effect that the Crown’s prerogative powers in conquered/ceded territories are subject to the Crown’s agreement to preserve existing laws: Cameron v Kyte (1835) 3 Kn 332, 341–42; 12 ER 678, 682 (PC) (‘The King having the whole legislative authority in a conquered colony, in so far as he may not have parted with it . . . by his own voluntary grant’); Re Adams (1837) 1 Moo 460, 470; 12 ER 889, 893 (PC) (the Privy Council said that, since Mauritius was surrendered on the condition that the inhabitants should preserve their laws, the Board ‘must look to the law of France as established in the colony before that event’); Sammut v Strickland (n 182) 701 (the Crown had legislative power over Malta ‘so far as was consistent with the terms of cession’ to alter the existing system of law); Chitty (n 210) 29, 32. cf Cook v Sprigg (n 209) 578–79; Secretary of State for India v Bai Rajbai (1915) LR 42 IA 229 (PC); Vajesingji Joravarsingji (n 141) 360; Hoani te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 (PC) 324–25; Buck v Attorney-General [1965] Ch 745 (Ch) 759; Winfat Enterprise (HK) Co Ltd v Attorney-General of Hong Kong [1985] AC 733 (PC) 746; Mabo (n 1) 55 (Brennan J) which make it clear that, unless incorporated into municipal law, the terms of a treaty of cession (and a fortiori a capitulation) are not enforceable by the courts and would not, therefore, limit the prerogative powers of the Crown. The point of divergence between the two lines of authority appears to be whether the agreement to preserve existing law was contained only in the terms of a capitulation/treaty of cession or was in fact perpetuated after the cession/conquest. Nevertheless, it is also clear that the Crown cannot fetter its prerogative (Evatt (n 216) 35) and could, therefore, enact confiscatory legislation (by virtue of prerogative legislative powers) or grant land subject to pre-existing rights to another (by virtue of prerogative executive powers). The conclusion that preexisting title (which has been left undisturbed after the act of State establishing the conquered/ceded colony) prevailed in the case of an inconsistent Crown grant is the result of the colonial law doctrine prescribing the system of law that applies in a newly acquired territory (which included the test for determining whether preexisting rights survived a change in sovereignty: the doctrine of continuity pro-tempore). 236   Campbell v Hall (1774) Lofft 655, 742; 98 ER 848, 896 (KB) (Lord Mansfield delivering the unanimous opinion of the Court) referring to the Crown’s prerogative legislative power. 237   WS Holdsworth, A History of English Law, vol 10, 1st edn (London, Methuen & Co Ltd, 1938) 373; cf Holdsworth, 11 History of English Law (n 216) 246; Roberts-Wray (n 214) 214. 238   1 Bl Comm 134; McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ fn 48 and text. 239   See also below n 285. 240   This is, of course, the difficulty with the conventional classification of settled colonies: because they were regarded as ‘uninhabited’ and thus without pre-existing systems of law, there were no laws to alter and no preexisting property rights to protect. It will be seen that in light of the High Court’s reclassification of Australia as an ‘inhabited settled colony’, McNeil has argued that because changes to pre-existing law cannot be contrary to fundamental principles, the fundamental right of property, whatever its origin, cannot be abrogated by inconsistent Crown grant: text to nn 293, 295. Furthermore, Holdsworth’s suggestion that the limitation on the Crown’s power to change the laws of a conquered/ceded colony ‘contrary to fundamental principles’ was equally applicable to settled colonies (Holdsworth (n 216) 238), was made when settled colonies were regarded as legally uninhabited: there was, therefore, no question of pre-existing rights for the limitation to apply to; it only applied to received common law rights. 234 235



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is, therefore, no reason for denying such ‘undisputed’ property rights the same protection from the Crown’s prerogative accorded common law property rights. Whether by the laws which the Crown allowed or established, therefore, the Crown cannot, by exercise of its prerogative to grant land, interfere with the pre-existing property rights of conquered/ceded people.241 The important point is that, in terms of extinguishing pre-existing rights by exercise of the Crown’s prerogative in conquered/ceded colonies, the distinction between common law and non-common law titles has no significance: considered in either form, preexisting rights are protected.242 The Crown’s power to extinguish, and thereby derogate from, pre-existing rights in conquered/ceded territories after the act of State establishing the colony has ended is, therefore, legislative. Where a representative assembly has not been promised or created, or English law has not been introduced, the Crown would nonetheless have prerogative legislative powers by virtue of which it could enact confiscatory legislation.243 The executive could not, however, derogate from pre-existing rights because the executive has no legislative powers which have not been delegated to it by statute.244 Thus, in conquered/ceded colonies, the continuity limb of the doctrine of continuity pro-tempore assumes a primary role for, legislative expropriation apart, the recognition limb has no application.245 That is, the recognition limb merely acknow­ ledges the Crown’s undoubted legislative power to extinguish any private property rights subject to a presumption in favour of compensation unless unequivocally denied by the relevant legislation.246 241   It will be seen that the preferable rule extends the legal position in conquered/ceded colonies post-act of State to all inhabited colonies: below text to n 303ff. Indeed, when McNeil considered whether the Crown’s prerogative provides lawful authority to interfere with private property rights of its subjects at common law, he concluded that the Crown did not have power to extinguish any rights of its subjects, ‘whatever their source’, by grant: see below text to nn 293, 295. 242  In Oyekan v Adele (n 144) 788 the Privy Council confirmed this conclusion vis-a-vis the native inhabitants inter se: ‘if a dispute arises . . . as to the right to occupy a piece of land, it will be determined according to native law and custom . . . except, of course, in those cases . . . where English [common law] conceptions of individual ownership have superseded previous conceptions’. See also ibid 790. It is also clear that where preexisting law remains in force, it governs ‘the transactions of the ancient [inhabitants] with each other, and with the new comers’: see above n 231 and text. In Amodu (n 45) 404–05 the Privy Council cited with approval Rayner CJ’s description in the Report on Land Tenure in West Africa (1898) of the character of the tenure of land among native communities which included ‘individual ownership’ ‘due to the introduction of English ideas’. It appears, therefore, that whether English land law was introduced in toto (and pre-existing title was converted to common law title) or local land law continued despite the introduction of the system of Crown grants (and pre-existing title continued in its original form) is a question of fact to be determined in each case. The conclusion that pre-existing title is protected under the laws established or allowed by the new sovereign also provides the clearest explanation of the Court’s analysis in Case of Tanistry (1608) Davis 28; 80 ER 516 (IrKB): see below text to n 247ff. 243   And thus extinguish existing property rights: Campbell v Hall (1774) Lofft 655, 741, 742; 98 ER 848, 895, 896 (KB). See also McNeil (n 3) 163–64, 164 fns 14 and 15, 113–14. Importantly, however, the presumption against statutory taking of property without compensation (see below n 243 and text) would arguably apply to prerogative legislation purporting to confiscate private property: Campbell v Hall (1774) Lofft 655, 742; 98 ER 848, 896 (KB) (the King ‘cannot make any new change contrary to fundamental principles’); Eastern Rand Exploration Co v Nel [1903] TS 42 (Transvaal SC); cf NZASM v Douglas Colliery [1905] TS 374 (Transvaal SC). See also McNeil (n 3) 164 fn 14. cf the position in a conventional settled colony: above text to n 217. 244   See generally Chitty (n 210) 25–33; McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (n 207) 185. 245   Although McNeil agrees with this conclusion in the context of conquered/ceded colonies, compare his analysis: (n 3) 162ff. 246   The Commonwealth v Hazeldell Ltd (1918) 25 CLR 552 (HCA); Western Counties Railway Co v Windsor and Annapolis Railway Co (1882) 7 App Cas 178 (PC) 188; Commissioner of Public Works (Cape Colony) v Logan [1903] AC 355 (PC) 363–64; Central Control Board (Liquor Traffic) v Cannon Brewery Co Ltd [1919]

118 ‘Inhabited’ Settled Colonies Post-Mabo The only issue from the perspective of the holder of a pre-existing right in a conquered or ceded colony, therefore, is whether their rights will be protected in their original form (non-common law) or as a result of being converted into common law tenure. It is in this limited context that the dichotomy between common law and non-common law titles has any significance. This is illustrated by, and also explains, the decision in the Case of Tanistry:247 the first reported case to consider the interrelationship between custom and the common law in a colonial context. Although the English conquest of Ireland was formally concluded by the Treaty of Mellifont on 4 April 1603, by 1606 it was clear ‘that the Ulster nobles were still relying on the possession of vast tracts of land in order to enforce their power and authority against that of the British Crown’; in particular, they were relying on the customs of tanistry248 and gavelkind.249 Thus, the main legal issue in the Case of Tanistry was the validity of the custom of tanistry in post-conquest Ireland. This main issue required consideration of two interrelated questions: first, whether the custom of tanistry had been abolished by the introduction of the common law and, secondly, whether the custom of tanistry satisfied the requirements for the validity of customs at common law.250 Although the case involved a complicated set of land transfers based upon a complicated family tree, the basic question was which of two competing titles to particular land was better: that of the plaintiff, derived from the title of the heir according to tanist custom, or that of the defendant, derived from the title of the heir at common law. The important point is that both heirs (and thus both plaintiff and defendant) ultimately derived title from the same person: the pre-conquest owner of the land according to the custom of tanistry.251 The title of the pre-conquest owner of the land was, therefore, not AC 744 (HL) 752 (Lord Atkinson). In Australia, this legislative power to take property is limited by s 51(xxxi) of the Constitution which provides that the Commonwealth Parliament has the power to make laws with respect to the ‘acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws’. 247   Case of Tanistry (1608) Davis 28, 80 ER 516 (IrKB). For the English translation see J Davies, A Report of Cases and Matters in Law, Resolved and Adjudged in the King’s Courts in Ireland, 4th edn (Dublin, Printed for Sarah Cotter under Dick’s Coffee-House, 1762) 78–115. As the case was argued several times, the report of the judgment is a synthesis by Davies (who also appeared on behalf of the defendant) of a number of judgments by the Court of King’s Bench. For a different interpretation of the case see S Dorsett, ‘“Since Time Immemorial”: A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry’ (2000) 26 Melbourne University Law Review 3, pt IV. 248   An Irish tenure involving a mode of descent through the male line. 249   ‘The Irish system of individual land tenure was known as gavelkind, so named because it reminded the Norman settlers of a local feudal system in Kent, called gavelkind’: Dorsett, ‘Since Time Immemorial’ (n 247) text to fn 69. 250   Case of Tanistry (1608) Davis 28, 29; 80 ER 516, 517 (IrKB); English Translation (n 247) 80. Note that because the customs of tanistry and gravelkind had been ‘adjudged to be utterly void in law’ by an extra-judicial resolution of the Privy Council in 1606, the Case of Tanistry simply provided the Crown with an opportunity to confirm the abolition of tanistry by a trial before a jury. Extra-judicial resolutions were the collective decisions made by the English or Irish judiciary in conclave to establish policy guidelines and precedents in a variety of constitutionally and politically significant cases: see Dorsett (n 247) text to n 59. 251   The following facts were found by the jury: Donough Mac Teige O Callaghan, chief of his name, was seised of the seignory or chieftainship of Publicallaghan (the subject land) according to the custom and course of tanistry. Being so seised, he had issue a son: Conoghor O Callaghan. Conoghor had issue a son and a daughter: Teige and Eleanor. Teige had issue Donough Mac Teige the younger; Eleanor was married to Art O Kieffe and had issue Manus O Kieffe. Conoghor and his son, Teige, died during the life of Donogh Mac Teige the elder. Subsequently, Donogh Mac Teige the elder by conveyance, according to the rules of the common law, executed an estate to the heirs male of his body, remainder to the right heirs of the feoffer. Following Donogh Mac Teige the elder’s death, Donogh Mac Teige the younger died without issue male. After Donogh Mac Teige the younger’s death, another Conoghor O Callaghan being the ‘eldest and most worthwhile of the blood and



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doubted; the question was simply how that pre-conquest title continued to be recognised post-conquest: according to the rules of tanistry or the common law. The defendant argued that the effect of the introduction of the common law in postconquest Ireland was to abolish tanistry: ‘for this custom of tanistry was the common custom of Ireland before the conquest . . . and therefore it must of necessity be abolished by the establishment of another general law [the common law]’.252 Although the plaintiff conceded this point, he maintained that particular customs might nevertheless stand, just as ‘the custom of Gavelkind in Kent, and other customs in other particular places in England remain’d after the Norman conquest’.253 Thus, the case proceeded on the basis of determining whether the custom of tanistry satisfied the common law requirements for the validity of a custom: if it did, the custom would supersede the common law and become the common law of the local area; it would be recognised as a common law tenure.254 The Court resolved that the custom of tanistry was void, not being a valid custom at common law,255 and that, even if it had been valid, it was abolished when the common law of England was established.256 The meaning of the latter resolution is crucial: if the introduction of the common law had automatically abolished the custom of tanistry ab initio, the original tanist (the pre-conquest holder of the land) would not only have been denied his legal rights to the land so that there would be no question as to which of his heirs was thereafter entitled, but there would also have been no need to consider whether the custom of tanistry satisfied the rules for the validity of customs at common law. The original tanist did, however, remain legal owner of the land; the effect of the introduction of the common law was simply to convert his title, and the title of his heirs, into common law title. It is in this sense that the introduction of the common law ‘abolished’ tanistry. It did not mean that pre-existing rights held in accordance with the tanist custom were not recognised. Indeed, the Court observed that, having received all the natives of Ireland into his royal protection and having established the common law universally throughout Ireland, the King, by special proclamation, declared that: surname of O Callaghan’, entered onto the land and claimed to hold it as lord or chieftain of Publicallaghan according to the custom of tanistry, and was thereof seised (English Translation (n 247) 79–80). The plaintiff’s title derives from Conoghor so seised: after the conquest, Conoghor surrendered the land and all his estate, right and interest in it to Queen Elizabeth and in return the Queen regranted the land to Conoghor and his heirs, who entered and conveyed the land to Fagan, who conveyed the land to Brien Mac Owen, the lessor of the plaintiff, Murrough Mac Bryan (ibid 80). Because the Court found that the purported ‘regrant’ of the land to Conoghor by the Queen was void (ibid 109–10), the plaintiff’s title is derived from the heir according to tanist custom: the title of the tanist being in the lessor of the plaintiff. The defendant’s title is derived from the heir at common law before Conoghor entered as last tanist: following the death of Art O Kieffe and his wife Eleanor, their son, Manus O Kieffe, entered the land pursuant to the estate tail created by Donogh Mac Teige the elder according to the course of the common law and conveyed the land to Cahir O Callaghan, the defendant (ibid 80). The case was an action for ejectment which arose when the defendant entered onto the land and ejected the plaintiff lessee. 252   Case of Tanistry (1608) Davis 28, 37; 80 ER 516, 524 (IrKB); English Translation (n 247) 101. 253   Case of Tanistry (1608) Davis 28, 30; 80 ER 516, 518 (IrKB); English Translation (n 247) 82. 254   See above n 251 and text, below n 260 and text. The Court also held that, even if the tanist custom had been valid, the conveyance of the land according to the course of the common law by Donogh Mac Teige the elder to Donogh Mac Teige the younger destroyed the custom in that land forever: Case of Tanistry (1608) Davis 28, 31, 36; 80 ER 516, 519, 524 (IrKB); English Translation (n 247) 86, 99. For an examination of the requirements for a custom to become the common law of a district: see ch 7 text to nn 63–80; see also Mabo (n 1) 59 (Brennan J). 255   Case of Tanistry (1608) Davis 28, 31, 33ff; 80 ER 516, 519, 521ff (IrKB); English Translation (n 247) 86, 92ff. 256   Case of Tanistry (1608) Davis 28, 31, 37; 80 ER 516, 519, 524 (IrKB); English Translation (n 247) 86, 101.

120 ‘Inhabited’ Settled Colonies Post-Mabo [A]ll persons and possessions within [Ireland] ought to be governed by the rules of [the common law], and that every subject shall inherit his land in Ireland, by the just and honourable law of England, viz. in such manner and by the same law, by which the king inherits the crown of Ireland.257

As a result of the universal introduction of the English common law, therefore, the original tanist acquired a common law title to the disputed land ‘without grant or confirmation of the conqueror’.258 Crucially, in explaining this conclusion, the Court expressly rejected the argument that the Crown had acquired possession of the land against the original tanist by virtue of its conquest of Ireland: For the Kings of England have always claimed and had within their dominions, a royal monarchy and not a despotick monarchy or tyranny; and under a royal monarchy the subjects are freemen, and have a property in their goods, and a freehold and inheritance in their goods, and a freehold and inheritance in their lands. . . . And therefore when such a royal monarch, who will govern his subjects by a just and positive law, hath made a new conquest of a realm, although in fact he hath the lordship paramount of all the lands within such realm, so that these are all held of him, mediate vel immediate, and he hath also the possession of all the lands which he willeth actually to seise and retain in his own hands for his profit or pleasure, and may also by his grants distribute such portions as he pleaseth to his servants and warriors, or to such colonies as he will plant immediately upon the conquest, . . . yet Sir James Ley chiefjustice said, that if the conqueror receiveth any of the natives or ancient inhabitants into his protection and avoweth them for his subjects, and permitted them to continue their possessions, and to remain in his peace and allegiance, their heirs shall be judged in by good title without grant or confirmation of the conqueror, and they shall enjoy their lands according to the rules of the law which the conqueror hath allowed or established.259 (bold emphasis added)

The pre-existing, as opposed to the Crown’s, title to the land was never doubted.260 For the Crown to be possessed of any land it would have to appear of record that the Crown had seised the land at the time of conquest and appropriated it as part of the Crown’s demesne.261 The question was simply which heir of the pre-conquest owner   Case of Tanistry (1608) Davis 28, 39; 80 ER 516, 527 (IrKB); English Translation (n 247) 108.   Case of Tanistry (1608) Davis 28, 41; 80 ER 516, 528 (IrKB); English Translation (n 247) 112. Indeed, the Court distinguished the position with respect to the custom of gravelkind in Kent, which continued after the Norman Conquest, on the basis that ‘the common law of England was not introduced by the conqueror, as hath been observed and proved very learnedly by Lord Coke in his preface to the third part of his reports’: Case of Tanistry (1608) Davis 28, 40; 80 ER 516, 527 (IrKB); English Translation (n 247) 109. 259   Case of Tanistry (1608) Davis 28, 40–41; 80 ER 516, 528 (IrKB); English Translation (n 247) 111–12. 260   Although both the plaintiff and the defendant derived title from the original tanist, because the original tanist enjoyed his land post-conquest according to the rules of the common law, the heir at common law should have prevailed. Owing to the unusual facts of the case, however, application of this simple proposition to resolve the dispute between the parties proved problematic: although the defendant clearly claimed a common law title, because the plaintiff derived title from the heir according to tanist custom, the plaintiff’s title (although later in time than the defendant’s) would also be considered a common law title ‘without grant or confirmation of the conqueror’. The plaintiff’s position was, however, complicated by the original tanist’s conveyance of the land according to the course of the common law which created and limited an estate tail in the land. The Court held that this conveyance destroying the custom in the land forever: Case of Tanistry (1608) Davis 28, 31; 80 ER 516, 519 (IrKB); English Translation (n 247) 86. Since this conveyance occurred before the last tanist entered and claimed the land, the plaintiff, purporting to derive title from the last tanist, did not have a valid title. The case should, therefore, have been resolved in favour of the defendant. The Court did not, however, hand down a verdict on this matter; rather, after the case had been argued several times before the Kings Bench over a period of 3 or 4 years, the parties came to an agreement and divided the land: Case of Tanistry (1608) Davis 28, 42; 80 ER 516, 529 (IrKB); English Translation (n 247) 115. 261   Case of Tanistry (1608) Davis 28, 40; 80 ER 516, 528 (IrKB); English Translation (n 247) 110–11. 257 258



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(original tanist) prevailed: the heir deriving title from tanist custom or the heir deriving title under the rules of the common law. The important point is that, post-conquest, the pre-conquest title continued. Post-conquest, title was simply enjoyed according to the rules of the common law. Moreover, the rules of the introduced common law could also accommodate the custom in its pre-conquest form, provided it satisfied the criteria for the validity of a custom at common law: it was on this point that the plaintiff failed.262 Nevertheless, the Court clearly acknowledged that, had the tanist custom satisfied the common law rules for validity, it would have had the force of the common law.263 The Case of Tanistry is, therefore, authority for the following propositions: first, if a conqueror permits conquered people to remain in possession of the land they had title to under the pre-conquest regime, their heirs will obtain good title according to the rules of law which the conqueror establishes, without grant or confirmation of the conqueror. Secondly, the Crown cannot be said to be in actual possession of land unless it appears by some record that such land was appropriated to the Crown as its own demesne. The decision thus affirms two fundamental principles: that conquest does not, without more, confer beneficial title to the conquered land upon the Crown and, more important for present purposes, that the Crown has no prerogative power to extinguish pre-existing rights in conquered (and, a fortiori, ceded) colonies. ii  Inhabited Settled Colonies a  The Australian High Court’s Rule In an inhabited settled colony, the scope of the royal prerogative power is inextricably linked with Brennan J’s reconciliation of the two strands of the common law which, pre-Mabo, determined the system of law applicable upon colonisation. Whereas the common law pre-Mabo distinguished between the doctrine prescribing the general law that applied upon settlement and the doctrine prescribing the effect of Crown acquisition of territory on pre-existing land rights, the Australian common law post-Mabo includes a singular doctrine. In prescribing the law that applies upon settlement, this singular doctrine (a modified doctrine of reception) includes the test for determining whether pre-existing land rights survive a change in sovereignty. This new doctrine of reception is the direct result of the finding that, although Australia was settled, it was inhabited for legal purposes at common law. Pre-Mabo, the law of the previous inhabitants was not recognised or applied in a settled colony because the classification of an inhabited colony as settled was justified on the ground that it was legally uninhabited: there was no previous law that could be applied. The enforceability of any pre-existing rights depended on some different rule. This rule, which became known as the ‘doctrine of continuity’, contradicted the ‘legally uninhabited’ rule and, consequently, was a necessarily distinct and independent rule.264 Since the new doctrine prescribing the system of law that applies upon settlement of an inhabited territory (a modified doctrine of reception) includes a merged version of the continuity and recognition doctrines (continuity pro-tempore), it effectively replaces the   See above n 250 and text.   Case of Tanistry (1608) Davis 28, 32; 80 ER 516, 520 (IrKB); English Translation (n 247) 87. For the effect of the common law conveyance of the land by the original tanist see above nn 254, 260. 264   See also below text to nn 331–33. 262 263

122 ‘Inhabited’ Settled Colonies Post-Mabo three formerly distinct doctrines of reception, continuity and recognition. Thus, where the constitutional situation is one of ‘settlement of legally inhabited territory’, the doctrine of continuity pro-tempore applies automatically to the new colony because it is part of the colonial law determining the law which is to govern the new possession. Although the doctrine of continuity pro-tempore also applies where the constitutional situation is one of cession or conquest, it has been seen that in such cases the doctrine applies to all legal rights, not merely property rights, and the effect of the doctrine is to protect pre-existing property rights from the Crown’s prerogative whether under the laws allowed or introduced by the Crown.265 In inhabited settled colonies, the continuity pro-tempore doctrine applies only to land rights; other legal rights being immediately subjected to English law (as per the conventional doctrine of reception). Thus, to the extent that English law runs into an inhabited settled colony ipso vigore, this entails the consequence that the Crown’s prerogative powers, both major266 and minor, apply and are defined by the common law ab initio. The Crown’s prerogative rights as to property are, however, in an especial position: as will be seen below, these powers are restrained by the common law in their application to interests derived from a valid Crown grant or otherwise secured by the rules of the common law, yet they are absolute and unconstrained by the common law in their application to interests not derived from Crown grant or otherwise secured by the rules of the common law.267 This result flows from the High Court’s (mis)interpretation of the Crown’s prerogative powers in inhabited settled territories268 as well as the application of the modified doctrine of reception – in the context of land, in addition to the doctrine of continuity pro-tempore applying, the redefined doctrine of tenure automatically applied. Consequently, the High Court’s declaration of the unique status of native title in terms of extinguishment is based on an attempt to reconcile the interrelationship between the Crown’s prerogative powers relating to land (which have been entirely replaced by statute),269 the native system of land law and the European-based system of tenure: an interrelationship which only occurs automatically in inhabited settled colonies.270 The result was that, upon acquisition of sovereignty of an inhabited settled colo­ny, the Crown acquired a radical, rather than beneficial, title to all land. While this enabled native title to be accommodated within Australian land law, the legal status of 265   See above text to nn 212, 226–45. According to the Privy Council’s analysis in Oyekan v Adele (n 114) this doctrine of continuity pro-tempore applies where the constitutional situation is one of cession: see above n 192. Indeed, regardless of the constitutional status of a colony, the doctrine of continuity pro-tempore is the correct approach: while the doctrine applies automatically in an inhabited settled colony irrespective of the act of State establishing the colony, it applies post-act of State in conquered/ceded colonies. Thus, the authorities referred to by McNeil (n 3) 171–74, which are analysed in the context of his version of the continuity doctrine, are equally capable of interpretation under the new doctrine. 266   See above n 219ff. 267   See below text to nn 275–81, 285–89. 268   See below text to nn 283–95. cf the position in conquered/ceded colonies above text to nn 225ff. 269   Mabo (n 1) 64–65 (Brennan J), 111 (Deane and Gaudron JJ), 196 (Toohey J); Wik (n 28) 108–11 (Toohey J), 139–43 (Gaudron J), 171–74 (Gummow J), 227–28, 243 (Kirby J). The relevant prerogative never applied in South Australia (Fejo (n 72) [91] (Kirby J)) and it has not applied elsewhere in Australia since 1842 when a statutory scheme for the granting of interests in land replaced the royal prerogative: Sale of Waste Lands Act 1846 (Imp) (5 & 6 Vic c 36). Although radical title is no longer relevant to the Crown’s powers to grant rights and interests in land, it will be seen in chs 4, 5 and 6 that the Crown’s radical title remains central to characterising the nature of the Crown’s title to land. 270   Although this interrelationship may also occur in conquered/ceded colonies, it is not automatic: it requires the acquiring sovereign to specifically introduce English land law.



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native title remains its weakness: rather than being a concept of the common law, it is sui generis. It is an autonomous body of law that is merely accorded recognition as a consequence of the modified doctrine of reception. It is not protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant.271 Indeed, while it will be seen that there are a number of objections to this aspect of the High Court’s decision, it is in this context that identifying a common law source of Aboriginal land rights in an inhabited settled colony is crucial.272 As author of the leading judgment in Mabo, Brennan J acknowledged that the exercise of sovereign power to create and extinguish private rights and interests in land depends on the authority which the municipal constitutional law vests in the organ of government purporting to exercise that power.273 He also noted that, since the Crown’s power to grant an interest in land in Queensland is an exclusively statutory power, the validity of a particular grant depends upon conformity with the relevant statute.274 Thus, Brennan J explained: When validly made, a grant of an interest in land binds the Crown and the Sovereign’s successors. . . . Therefore an interest validly granted by the Crown, or a right or interest dependent on an interest validly granted by the Crown cannot be extinguished by the Crown without statutory authority. As the Crown is not competent to derogate from a grant once made, a statute which confers a power on the Crown will be presumed (so far as consistent with the purpose for which the power is conferred) to stop short of authorizing any impairment of an interest in land granted by the Crown or dependent on a Crown grant.275

By contrast, since native title ‘is not granted by the Crown, there is no comparable presumption affecting the conferring of any executive power on the Crown the exercise of which is apt to extinguish native title’.276 In summarising ‘the common law of Australia with reference to land titles’,277 Brennan J applied these legal propositions to articulate two general rules for the executive extinguishment of native title: 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 . . . [In this context, the doctrine of tenure is brought into play] 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 . . . [In this context,] [i]f native title to any parcel of the waste lands of the Crown is extinguished, the Crown becomes the absolute bene­ ficial owner.278

  See below text to nn 275ff, esp n 281.   Recall that with respect to conquered/ceded colonies, the dichotomy between common law and noncommon law titles has no significance for the protection of pre-existing property rights from inconsistent Crown grant: see above text to n 242. 273   Mabo (n 1) 63. 274   ibid 63–64. 275  ibid. 276   ibid 64. 277   ibid 69. 278   ibid 69–70. See also ibid 67. 271 272

124 ‘Inhabited’ Settled Colonies Post-Mabo Thus, while acknowledging that, in the absence of statutory authority,279 the Crown cannot derogate from existing rights and interests,280 Brennan J limited the application of this fundamental common law rule to rights and interests derived from a valid Crown grant.281 This limitation was no doubt based on the pre-Mabo assumption that anyone holding land in Australia was holding it of the Crown. Superficially, it also appears to be consistent with Chitty’s observation that ‘[i]t is scarcely necessary to mention that the King’s grants are invalid, when they destroy and derogate from rights previously vested in another subject by grant’ (emphasis added).282 It will be seen, however, that this is not the case. Crucially, there are four fundamental objections to limiting the non-derogation rule to rights derived from Crown grant in an inhabited colony. First, there is no authority supporting such a limitation apart from Mabo and subsequent Australian decisions.283 To the contrary, it has been seen that the weight of authority regarding colonial acquisitions of inhabited territory protects pre-existing property rights (irrespective of their source) from the Crown’s prerogative. Indeed, the limitation is only consistent with the scope of the Crown’s prerogative powers in conventional settled colonies which, by definition, are uninhabited (whether factually or legally). Because conventional law presupposed that there were no pre-existing property rights to restrain the Crown in exercise of its prerogative power to grant land, the non-derogation rule could only apply to rights derived from Crown grant. In fact, the existence of any title not derived from Crown grant in a settled colony would have been inconceivable to Chitty. The conventional law as expounded by Chitty did not envisage the High Court’s retrospective rejection of the common law classification of inhabited land as ‘desert and uncultivated’ – ‘legally uninhabited’ – for the purpose of determining the system of law applicable upon settlement. Thus, the only basis for limiting the non-derogation rule to rights derived from Crown grant lies in the misapplication of the law regarding the Crown’s prerogative powers in uninhabited settled colonies to inhabited settled colonies. Secondly, and following from the first objection, since the prerogative power to grant land is a major prerogative applying to all the Crown’s dominions whatever the general 279   Legislation authorising Crown grants of land must be distinguished from legislation which unambiguously confers authority on the executive to extinguish native title. In the latter case, the executive has legal power to extinguish native title provided it acts in accordance with the statutory authority. It is only in the absence of unambiguous statutory authority that the power of the executive to extinguish native title is to be found in the royal prerogative. The prerogative powers of acquisition of land, which the Crown has in times of emergency, are no longer relevant in Australian law. ‘All taking of land from private persons by the Crown and other authorities is undertaken in pursuance of statutory powers’: D Brown, Land Acquisition: An Examination of the Principles of Law Governing the Compulsory Acquisition of Land in Australia and New Zealand, 4th edn (Sydney, Butterworths, 1996) 9. 280   Chitty (n 210) 386. See also below text to n 285. 281   See the same observation about Brennan J’s judgment by McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (n 207) 192; cf McNeil’s discussion ibid 192–203. Objections to Brennan J’s limitation of the non-derogation rule are discussed below text to n 283–95; see also text to n 303ff. 282   Chitty (n 210) 386. 283   Brennan J introduced the limitation in Mabo (n 1) 64: see above text to n 276. In Fejo (n 72) [44] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) the joint judgment quoted with approval the following passage from Brennan CJ in Wik (n 28) 84: ‘The strength of native title is that it is enforceable by the ordinary courts. Its weakness is that it is not an estate held from the Crown nor is it protected by the common law as Crown tenures are protected against impairment by subsequent Crown grant. Native title is liable to be extinguished by laws enacted by, or with the authority of, the legislature or by the act of the executive in exercise of powers conferred upon it’. The High Court accepted this approach in Western Australia v Cth (n 12) 439 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).



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system of law,284 there is no legal basis for denying that the restraints on the exercise of the power should affect all pre-existing rights equally regardless of the colonial classification of a particular colony. Indeed, an admixture of English law and former law applies both under the High Court’s modified doctrine of reception in inhabited settled colonies and where the Crown agrees that the system of land law prevailing in a conquered/ceded colony shall continue. As a result of the High Court’s decision, however, in the event of inconsistency different outcomes apply: pursuant to the modified doctrine of reception in an inhabited settled colony, English law prevails; in the conquered/ceded context, because the Crown’s rights vis-a-vis pre-existing rights are regulated by the legal principles expressly sanctioned by the Crown, these pre-existing principles prevail. As a matter of sound legal principle, once it is accepted that a colony was inhabited at the time of settlement, pre-existing land rights in the colony must be treated the same as those in conquered/ceded colonies: to do otherwise discriminates against the Aboriginal inhabitants of the settled colony. Thirdly, and independently of the former objections, the limitation fails to address all property rights secured by the common law, including rights not derived from Crown grant: for it is a clear rule that ‘the King could not, by an exercise of his prerogative, prejudice those rights of his subjects which were secured to them by the rules of the common law’ (emphasis added).285 This is because, without statutory authority, the Crown has no power to change the rules of the common law.286 To use the words of Viscount

  See above text to n 219.  Holdsworth, 10 History of English Law (n 237) 360. See also Attorney-General for the Isle of Man v Mylchreest (1879) 4 App Cas 294 (PC) (an information of intrusion against the owner of a customary estate in land who had granted a licence to third parties to dig clay and sand on the land, was dismissed on the ground that it was inconsistent with the customary rights which, having been established by the evidence to have existed from time immemorial, had the force of the common law); Re Islington Market Bill (1835) 3 Cl & F 513; 6 ER 1530 (HL) (a right acquired by prescription at common law could not be abrogated by Crown grant); Mayor of Exeter v Warren (1844) 5 QB 773, 779, 781, 799–800; 114 ER 1441, 1444, 1445, 1451–52 (QB); Nichols v Nichols (1677) 2 Plow 477, 487; 75 ER 711, 726 (KB). See also McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (n 207) 193 who, relying, inter alia, on the same authority, explains that the ‘rule is much broader, and in fact applies to all rights and interests, regardless of their origin’; below text to nn 293–95. 286   This has been recognised as a settled principle of law since at least the 17th century: see the Proclamations Case (1611) 12 Co Rep 74, 75; 77 ER 1352, 1353 (KB) ‘[T]he King cannot change any part of the common law . . . without Parliament’. Indeed, the Court went even further, noting that ‘the King by his proclamation or other ways cannot change any part of the common law, or statute, or the customs of the realm’ (emphasis added): ibid. Moreover, the Court confirmed that such ‘customs’ were distinct from customs which had become the common law of a particular area – ‘the law of England is divided into three parts, common law, statute law, and custom; but the King’s proclamation is none of them’ – and that ‘the King hath no prerogative, but that which the law of the land allows him’: Proclamations Case (1611) 12 Co Rep 74, 75; 77 ER 1352, 1354 (KB). See also Re Lord Bishop of Natal (1864) 3 Moo NS 115, 152; 16 ER 43, 57 (PC); 1 Bl Comm 137; H Broom, Constitutional Law Viewed in Relation to Common Law, 2nd edn (London, W Maxwell & Son, 1885) 245, 386–87, see also 225–45; Holdsworth (n 237) 360 and authorities cited in fn 5; Holdsworth (n 216) 265–67; Evatt (n 216) 10–13. In the context of freehold interests in land, this protection was codified in Magna Carta (1215) 17 John c 29 which provides that ‘[n]o Freeman shall . . . be . . . disseised . . . but by the lawful Judgment of his Peers, or by the law of the Land’: see 1 Bl Comm 138; McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (n 207) 187 fn 48. See also Attorney-General v De Keyser Royal Hotel Ltd [1920] AC 508 (HL) 569 (Lord Parmoor): ‘Since Magna Carta the estate of a subject in lands or buildings has been protected against the prerogative of the Crown’ (the Crown had no power to take possession of the respondent’s premises, for the purpose of housing the headquarters of the Royal Flying Corp, in right of its prerogative simpliciter). See also Australian Communist Party v Commonwealth (1951) 83 CLR 1 (HCA) 230– 31 (Williams J); Clunies-Ross v Commonwealth (1984) 155 CLR 193 (HCA) 201. 284 285

126 ‘Inhabited’ Settled Colonies Post-Mabo Haldane in Viscountess Rhondda’s Claim:287 ‘the Prerogative cannot legally be exercised in such a fashion as to defeat the common law’. The prerogative ‘is in itself a part of the common law, not to be exercised arbitrarily but “per legem” and “sub modo legis”’.288 Thus, even according to the High Court’s narrow interpretation of the non-derogation rule in inhabited settled colonies, the position would be, at the very least, that the major prerogative to grant land is restrained by the common law in its application to interests derived from valid Crown grant or otherwise secured by the rules of the common law, yet is unconstrained by the common law in its application to interests not derived from Crown grant or otherwise secured by the rules of the common law.289 It was seen in chapter one that, even under strict feudal theory, common law title to land can and does exist both independently of any grant290 and independently of the present sovereign’s grant.291 Indeed, titles acquired by adverse possession provide a clear modern example of titles which, although not owing their existence to a Crown grant, are no more vulnerable to extinguishment by Crown grant than titles derived from prior Crown grant. Importantly, the effect of the statute of limitations is ‘merely negative’: it does not convey title but merely extinguishes all other claims to the land. The adverse possessor’s title results, not from statutory conveyance, but from their possession at common law.292 In the context of this third objection to the High Court’s limitation of the non-derogation rule to rights derived from Crown grant, it will be seen in chapter seven that while Aboriginal customary rights to land are not derived from Crown grant, they can be secured by the rules of the common law. Moreover, the fourth fundamental objection (which follows from the third) makes it clear that pre-existing customary land rights do not have to be secured by the rules of the common law to be protected from the Crown’s prerogative. McNeil has shown that the Crown does not have power to extinguish any property rights of its subjects, ‘whatever their source’, by grant.293 In addition to being supported by the authorities, McNeil’s conclusion stems from the rule that ‘the King could not, by an exercise of his prerogative, prejudice those rights of his subjects which were secured to them by the rules of the common law’.294 Importantly, the High Court did not address this rule295 or its implications 287   Viscountess Rhondda’s Claim [1922] 2 AC 339 (HL) 388. See also Ex p Leahy; Ex p Rayment (1904) 4 SR (NSW) 401 (NSWSC) 425 (Pring J). 288   A-G v De Keyser (n 286) 567–68 (Lord Parmoor). 289   According to the High Court, therefore, there is no restraint on the prerogative power to unilaterally abrogate the pre-existing property rights of the Crown’s subjects which, although recognised by the common law, are not derived from that system of law. cf Lester (n 115) 961, 962; McNeil (n 3) 179–92; above n 207, 192–93. 290   As in the case of allodial landholding, title by occupancy of a vacant pur autre vie estate and title by adverse possession. 291   As in the case of tenure in ancient demesne and ecclesiastical tenures. 292   See McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (n 207) text to fn 94; K McNeil, ‘The Vulnerability of Indigenous Land Rights in Australia and Canada’ (2004) 42 Osgoode Hall Law Journal 271, 276. See also Fairweather v St Marylebone Property Co Ltd [1963] AC 510 (HL) esp 535; Perry v Clissold [1907] AC 73 (PC) (adverse possessor who had not yet acquired a valid title against the person dispossessed because the statutory limitation period had not been satisfied, compensated by the Crown when it expropriated the land he possessed). 293   McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (n 207) 196–97, 192–93; K McNeil, ‘Aboriginal Title as a Constitutionally Protected Property Right’ in McNeil, Emerging Justice? (n 207) 292, esp 293. See also above text to n 226ff. 294   See McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (n 207) fn 92; see also above n 285 and text. 295   But see Mabo (n 1) 28 (Brennan J), 100–01 (Deane and Gaudron JJ). See also above n 285.



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when determining that native title is vulnerable to extinguishment by Crown grant because it does not originate in the common law; in particular, because it is not derived from Crown grant. While Brennan J’s conclusion that legislation authorising Crown grants of land does not permit the Crown to derogate from rights created by grant but does permit it to derogate from native title296 is technically correct according to the High Court’s own analysis – because native title is neither derived from Crown grant nor otherwise secured by the rules of the common law – the crucial point is that it effectively accords the Crown act of State power vis-a-vis native title in Australia after the Crown accepted the territory into its dominion. It has been seen that such a power does not exist even in the context of conquered/ceded territories. This unfettered aspect of the Crown’s prerogative powers in inhabited settled territories perpetuates the discriminatory treatment inhabitants of settled territories received under the ‘desert and uncultivated’ doctrine. Thus, while the High Court rejected this doctrine in the context of determining the law that applies in an inhabited settled colony, it still applies de facto in such colonies in the context of the Crown’s unilateral power to extinguish native title. Since this doctrine treated inhabited settled territory as uninhabited based on Eurocentric classifications of the inhabitants as ‘barbarous’, it ignored the inhabitants when considering title to land.297 In practice, since the inhabitants are now ignored when considering extinguishment of their title to land, the discriminatory effect is the same.298 Notwithstanding the objections to the High Court’s conclusion on executive extinguishment of native title, the Court’s conclusion is another legal outcome of the application of the modified doctrine of reception, pursuant to which settlement conferred a radical title on the Crown. English common law principles relating to land do not immediately run into an inhabited settled colony. In particular, radical title as a postulate of the doctrine of tenure and a concomitant of sovereignty ensures that the common law regime governing the Australian doctrine of tenure is only brought into play when the Crown grants an interest in land299 and that the restraints on the Crown’s major prerogative powers are only brought into play when an interest in land is either granted by the Crown or otherwise secured by the rules of the common law.300 This is crucial: if the 296   This is subject to the qualification that, since 1975, the power to make grants pursuant to State legislation is subject to the Racial Discrimination Act 1975 (Cth): Mabo v Queensland (No 1) (n 170); Mabo (n 1) 67, 74, (Brennan J), 112 (Deane and Gaudron JJ), 172–73 (Dawson J), 214–16 (Toohey J). 297   For discussion of the anachronistic and discredited evolutionary ‘social science’ upon which the doctrine of terra nullius (and thus its common law counterpart, the ‘desert and uncultivated’ doctrine) was built see: M Asch and P Macklem, ‘Aboriginal Rights and Canadian Sovereignty: an Essay on R v Sparrow’ (1991) 29 Alberta Law Review 498; C Bell and M Asch, ‘Challenging Assumptions: The Impact of Precedent in Aboriginal Rights Litigation’ in M Asch (ed), Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference (Vancouver, UBC Press, 1997) 38; M Asch, ‘From Terra Nullius to Affirmation: Reconciling Aboriginal Rights with the Canadian Constitution’ (2002) 17(2) Canadian Journal of Law and Society 23; M Asch, ‘Calder and the Representation of Indigenous Society in Canadian Jurisprudence’ in H Foster, H Raven and J Webber (eds), Let Right be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver, UBC Press, 2007) 101, 104, 108–09. 298   For a natural law argument against the acquiring sovereign interfering with the property rights of inhabitants of territory previously considered terra nullius at international law see LB Ederington, ‘Property as a Natural Institution: The Separation of Property from Sovereignty in International Law’ (1997) 13 American University International Law Review 263, esp 292ff. 299   Mabo (n 1) 48–49 (Brennan J, Mason CJ and McHugh J concurring). 300   ibid. Brennan J observed ‘that the common law’s recognition of native title meant that it could be protected by such legal or equitable remedies as are appropriate. Is the remedy of scire facias to revoke a Crown grant appropriate? Since the right of the subject to bring scire facias is a fundamental safeguard against abuse

128 ‘Inhabited’ Settled Colonies Post-Mabo Crown attempts to derogate from rights to land which are either derived from Crown grant or are otherwise secured by the common law by granting the land to another, the later grant is void because the Crown simply does not have the land to grant: nemo dat quod non habet.301 It follows that recognition of Aboriginal customary law as a source of common law title to land would overcome the inequality that currently exists between native title and Crown-derived interests in land: the protection of the common law would extend to it. It will be seen, however, that the need for such recognition would have been avoided if the High Court had adopted the preferable rule. b  The Preferable Rule: Reconciling the Effect of Colonisation on Pre-Existing Rights in All Inhabited Colonies – Missed Opportunity By recognising Australia as an inhabited settled colony and rejecting the common law ‘desert and uncultivated’ doctrine in ascertaining the law of an inhabited settled colony, the Mabo High Court was presented with a unique opportunity to reconcile the effect on pre-existing rights of all inhabited colonial acquisitions. The High Court had the opportunity to not only simplify the law relating to colonisation of inhabited territory irrespective of the territory’s colonial classification, but to ensure equal treatment of all pre-existing rights. Although the Court’s identification of Australia as a new class of settled colony at common law was unprecedented, the point of departure between conventional settled colonies and the new class of settled colony was recognition of the settled colony’s inhabited status for legal purposes. Consequently, the conventional basis for distinguishing between the existence of pre-existing land rights in conquered/ceded colonies, on the one hand, and the non-existence of such rights in settled colonies which, despite being inhabited, were deemed legally uninhabited, on the other, was rejected. To use Brennan J’s own words regarding the development of the law in a former torts case, ‘the law should develop novel categories . . . incrementally and by analogy with established categories’.302 Thus, incremental analogy with the established legal position relating to conquered/ceded categories of colonies, which by definition are inhabited, should have guided the Court in developing the law relating to the new inhabited category of settled colony and, by extension, all inhabited colonies. It has been seen that after the act of State establishing the colony has ended, whether by the laws which the Crown has allowed or established, the Crown cannot by exercise of the prerogative to make grants, it only extends to ‘every Crown grant’: ibid 61. The remedy of scire facias is, however, available to any subject whose rights have been prejudiced by Crown grant: Sir Oliver Butler’s Case (1681) 2 Ventr 344; 86 ER 477 (Ch), affd (1685) 3 Lev 220, 222; 83 ER 659, 660 (HL); R v Hughes (1866) LR 1 PC 81 (PC); Chitty (n 210) 331. See also Eastern Archipelago Co v R (1853) 23 LJQB (NS) 82 (Ex Ch) 106 where Jervis CJ observed that ‘To every Crown grant there is annexed by the common law an implied condition, that it may be repealed by scire facias by the Crown, or by a subject grieved using the prerogative of the Crown, upon fiat of the Attorney-General’. See also ch 6 n 144. Subjects injured by a Crown grant can also bring other actions to establish their rights: Sir Oliver Butler’s Case (1681) 2 Ventr 344; 86 ER 477, affd (1685) 3 Lev 220; 83 ER 659 (HL); Alcock v Cooke (1829) 5 Bing 340; 130 ER 1092 (CP). 301   For a list of authorities to this effect see The Case of Alton Woods (1600) 1 Co Rep 40b, 43b–46b; 76 ER 89, 99–106 (KB). See also Alcock v Cooke (1829) 5 Bing 340; 130 ER 1092 (CP). The ‘nemo dat’ rule has traditionally been interpreted as meaning that the Crown could not grant rights it did not itself possess: no one can give a better title than he has. Post-Mabo, however, it is clear that the Crown’s power of alienation is not dependent on beneficial ownership of the land. Thus, the literal meaning of the Latin phrase, ‘no one gives what he doesn’t have’, is apposite: the Crown can only grant interests which are the Crown’s to give. 302   Sutherland Shire Council v Heyman (1985) 157 CLR 424 (HCA) 481.



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of its prerogative to grant land interfere with the pre-existing property rights of conquered/ceded people. The Crown’s power to extinguish pre-existing rights in conquered/ ceded colonies is legislative. The important point is that, in terms of extinguishing preexisting land rights by exercise of the Crown’s prerogative in conquered/ceded colonies, the distinction between common law and non-common law titles has no significance: all pre-existing rights are protected.303 Thus, in conquered/ceded colonies, the continuity limb of the doctrine of continuity pro-tempore assumes a primary role for, legislative expropriation apart, the recognition limb has no application. Because the doctrine of continuity pro-tempore applies automatically upon settlement of an inhabited colony irrespective of the act of State establishing the colony, ‘[l]egal history, authority and principle’304 combine to support the proposition that the preferable rule for determining the effect of colonisation on pre-existing land rights in any inhabited colony is the rule which applies in conquered/ceded colonies post-act of State. The High Court, however, chose to develop a new rule. By holding that a modified doctrine of reception applied in an inhabited settled colony, the Court disregarded the restraints on the Crown’s prerogative power to grant land vis-a-vis pre-existing land rights. The Court denied the preferable result and effectively preserved the distinction between ‘settled’ and ‘conquered/ceded’ colonies in terms of the legal status of pre-­ existing land rights: an approach which serves to perpetuate the discriminatory treatment of inhabitants of settled colonies compared with inhabitants of conquered/ceded colonies. Brennan J’s claim that the decision in Mabo equated ‘the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land’ is, therefore, misleading as the purported equation only applies to presumptive recognition of the inhabitants’ land rights; it does not apply to extinguishment of those rights.305 The High Court’s position on extinguishment does, however, ensure that the legitimacy of titles granted by the Crown in inhabited settled colonies is not disturbed.306 McNeil has emphasised that ‘maybe it is time to acknow­ ledge that the High Court’s position on extinguishment is a policy-driven way of [ensuring] that result, rather than pretend that it is supported by legal doctrine’.307 Although the High Court did not adopt the preferable rule, it will be seen in chapter seven that the Court’s restatement of the common law of Australia provides a potentially more important legal basis for recognising Aboriginal customary law as a source of common law title to land. It is worth noting at this juncture that the basis for recognising pre-existing customary law rights to land under the preferable rule (where the   See above text to n 242.   The words are Kirby J’s: Fejo (n 72) [107]. 305   See above n 187. Brennan J’s use of the term ‘preferable rule’ in the context of his purported equation in Mabo (n 1) 57 is also misleading. 306  See Mabo (n 1) 47 (Brennan J). See also G Brennan, ‘Reconciliation’ (1999) 22 University of New South Wales Law Journal 595, 596–97. cf WardFC (n 147) [805]–[808], where North J suggested that the doctrine of tenure should be rejected. It has, however, been seen that recognition of Aboriginal customary law as a source of common law title to land would render any attempt by the Crown to grant land subject to such title void on the basis that the Crown cannot, by exercise of its prerogative, prejudice the rights of subjects secured by the rules of the common law: above text to n 283ff, esp nn 285–95. Moreover, it is clear that the Crown has purported to grant titles to third parties on the basis that Aboriginal customary law was not a source of common law title to land. It will be seen that the serious implications of recognising common law Aboriginal customary title in light of these historical facts requires that principles of reconciliation govern conflicts between Aboriginal customary titleholders and third-party interests: ch 7 text to nn 321–40. 307   K McNeil (n 203) 370. 303 304

130 ‘Inhabited’ Settled Colonies Post-Mabo distinction between common law and non-common law titles has no significance)308 is fundamentally different from that underlying recognition of pre-existing customary law as a source of common law title post-Mabo. It is also important to emphasise that Brennan J expressly limited the consequences of the Mabo Court’s restatement of the common law to pre-existing rights to land. This is the second significant implication of Brennan J’s purported equation of inhabitants of a settled colony with inhabitants of a conquered colony in respect of their rights in land. Nevertheless, this rationale is often overlooked with the result that some commentators have been too eager to assume that the High Court has rendered the distinction between ‘settled’ and ‘conquered or ceded’ territories otiose.309 While arguments for recognition of Aboriginal customary laws beyond those relating to land have been based upon the abolition of the ‘settled’/‘conquered/ceded’ distinction, the decision in Mabo highlights the distinction. Not only does the distinction continue to apply to extinguishment of pre-existing land rights, the consequences of the distinction extend beyond land rights.310 It has been seen that the laws of a conquered/ceded territory remain in force unless and until they are altered by the acquiring sovereign: the doctrine of reception preserves all legal rights, not just property rights, of the inhabitants unless and until such rights are superseded by English law.311 Moreover, it has been seen that even where the former law is superseded by the universal introduction of English law, holders of pre-existing rights obtain a good title in accordance with the introduced law.312 Thus, on the hypothetical assumption that Australia was conquered (rather than settled), Aboriginal laws and customs including, but not limited to, laws and customs relating to land would remain in force until altered. Furthermore, the introduction of the common law would only alter the manner in which pre-existing land rights were enforced. c Summary The decision in Mabo not only preserved the distinction between settled and conquered territories in respect of non-land pre-existing rights, it also preserved the distinction with respect to extinguishment of pre-existing land rights. This is because the High Court did not adopt the preferable rule which would have ensured that, legislative expropriation apart, the Crown had no power to extinguish pre-existing property rights in any inhabited colony. Instead, the Court developed a new theory for the law that applied upon settlement of an inhabited territory which, to use Brennan J’s words, did not fracture a skeletal principle of the Australian legal system.313 By ascribing to Australia the status of a new colony, a settled yet legally inhabited colony, the doctrine of reception as previously understood was not applicable. Consequently, a modified doctrine of reception applied. Under this new doctrine, the legal structure governing English land law did not apply upon settlement. Significantly, this modification accommodated all of   See above text to nn 303, 242.   See, eg, KE Mulqueeney, ‘Folk-Law or Folklore’ in MA Stephenson and S Ratnapala (eds), Mabo: A Judicial Revolution – The Aboriginal Land Rights Decision and Its Impact on Australian Law (St Lucia, University of Queensland Press, 1993) 165, 170. 310   See Secher, ‘The Mabo Decision – Preserving the Distinction between “Settled” and “Conquered or Ceded” Territories’ (n 188). 311   See above text to n 211. See also ch 1 text to n 209. 312   Above text to n 212. 313   Mabo (n 1) 29, 45. 308 309



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the changes to the common law made by the Mabo High Court: acknowledgment of mere radical title in the Crown, the doctrine of tenure ad veritatem, recognition of native title (via the continuity limb of the doctrine of continuity pro-tempore) and the Crown’s prerogative power to extinguish native title (via the recognition limb of the doctrine of continuity pro-tempore). d The Mabo High Court and Inalienability of Native Title The Mabo Court recognised the Crown’s exclusive right to acquire native title upon surrender, purchase or otherwise from native titleholders.314 Such exclusive right of pre-­emption is concomitant with the prohibition upon alienation of native title other than to the Crown.315 However, while the Crown has the exclusive right to acquire sovereignty, does it necessarily follow that the Crown has the exclusive right to acquire title to property?316 In the context of the right to acquire title to property, it is necessary to dis­ tinguish between an exclusive right to acquire title per se and an exclusive right of pre-­ emption in respect of land which is occupied at colonisation. Deane and Gaudron JJ adopted the reasoning of Chapman J in R v Symonds317 to explain these principles:318 the ‘restraint upon the purchasing capacity of the Queen’s European subjects’ follows from the principle of the doctrine of tenure that ‘the Queen is the exclusive source of title’; and the rule that the Queen is the source of all title to land is part of a wider rule, the sovereign has the exclusive right of acquiring new territory.319 This view not only confuses sovereignty and property, it also regards the feudal doctrine of tenure as crucial to the principles (as did Martin CJ in Symonds). Although Toohey J also referred to Chapman J’s analysis,320 he emphasised that the inalienability of native title constituted a means of protecting Aboriginal people from exploitation by settlers.321 Moreover, Toohey J considered the question of inalienability ‘open to debate’.322 On behalf of the majority, Brennan J offered a different explanation for the inalienability of native title and the Crown’s exclusive right of pre-emption. Expressly distinguishing Chapman J’s analysis in Symonds,323 Brennan J explained that although native title is recognised by the common law, it ‘is not an institution of the common law and is not alienable by the common law. Its alienability [like its vulnerability to extinguishment by Crown grant] is dependent on the law from which it is derived’.324 However,   ibid 59, 60 (Brennan J), 88 (Deane and Gaudron JJ), 194 (Toohey J).   ibid 60 (Brennan J), 88 (Deane and Gaudron JJ). The two explanations generally advanced for the inalienability of Aboriginal title are: the need to protect Aboriginal people from exploitation by settlers and the incapa­ city of settlers to acquire title to land other than by Crown grant. McNeil convincingly proffers a different explanation based on the nature of Aboriginal title itself – it is ‘communal and has a governmental dimension that cannot be acquired by private persons’: K McNeil, ‘Self-Government and the Inalienability of Aboriginal Title’ (2002) 47 McGill Law Journal 473. See also K McNeil, ‘The Post-Delgamuukw Nature and Content of Aboriginal Title’ in McNeil, Emerging Justice? (n 207) 129ff. 316   The implications of the Queen no longer being deemed the exclusive source of title are, of course, sig­ nificant: see discussion in ch 7. 317   Above n 40. For an analysis of this case see ch 2 especially text to n 200ff. 318   Mabo (n 1) 88 fn 40 citing Symonds (n 40) 389–91 (Chapman J). 319   Symonds (n 40) 389–91. 320   Mabo (n 1) 194 fns 40, 42 citing Symonds (n 40) 389–91. 321   ibid 194. 322  ibid. 323   ibid 60 fn 65. 324   ibid 59. 314 315

132 ‘Inhabited’ Settled Colonies Post-Mabo ‘[o]nce the Crown acquires sovereignty and the common law becomes the law of the territory, the Crown’s sovereignty over all land in the territory carries the capacity to accept a surrender of native title’.325 The important point is that in Brennan J’s (and thus the Mabo Court’s) view, the Crown’s exclusive right of pre-emption is an incident of radical title as a concomitant of sovereignty. By framing his explanation in terms of the concomitant of sovereignty limb of radical title, as opposed to the postulate of the doctrine of tenure limb, Brennan J made it clear that the doctrine of tenure and its accompanying fiction of original Crown ownership (whether considered ubiquitous, as in England, or not, as in Australia) was irrelevant. Thus, because the High Court’s position on the Crown’s exclusive right of pre-emption and the inalienability of native title other than to the Crown is not based upon the Crown as the exclusive source of title, it confirms the limited role of the doctrine of tenure in Australian land law. It will be seen in the next section that while the limited role of the doctrine of tenure ad veritatem presents an obstacle to McNeil’s original common law Aboriginal title theory, it is not insurmountable. D  Relevance of Kent McNeil’s Original Thesis It is in the context of the High Court’s treatment of the doctrine of tenure and the reception of English law that McNeil’s original common law Aboriginal title theory requires qualification in its application to Australian land law. McNeil argued convincingly that Aboriginal people could establish title in one of two ways: they could prove that they had real property rights under their own customary laws prior to the Crown’s acquisition of sovereignty, and rely on the presumption that those rights continued; or . . . they could prove that they were in exclusive occupation (either severally, jointly, or collectively) of specific lands at the time of the acquisition, and claim title thereto by virtue of the common law that would have applied in the settlement from that moment on.326

On the first point, McNeil is agreeing with the conclusion of Slattery and Lester that the Crown could not, in its executive capacity and simply by virtue of acquiring sovereignty over a settlement, acquire title to land then occupied by Aboriginal people under their own customary systems of law.327 McNeil’s contribution, therefore, was whether simple occupation of lands by Aboriginal people at the time a settlement was acquired by the Crown would give the occupiers a common law title. McNeil’s argument, very briefly and shorn of its complications, was that, in respect of land occupied by Aboriginal inhabitants, the effect of the colonisation of Australia and reception of English law would have been to create a presumption of title to fee simple estates in the Aboriginal occupiers. The Aboriginal presence would have excluded the possibility that the Crown acquired title to those lands by occupancy. Moreover, the Crown would not have acquired title by operation of the doctrine of tenure. Although McNeil’s observations, in these two   ibid 60.   McNeil (n 3) 241. 327   ibid generally ch 6. McNeil also refers to B Hocking, Native Land Rights (LLM thesis, Monash University 1970). See also K McNeil, ‘A Question of Title: Has the Common Law been Misapplied to Dispossess the Aborigines?’ (1990) 16 Monash University Law Review 91, 106. 325 326



The Reception of Land Law into the Australian Colonies Revisited 133

respects, conform with the High Court’s approach in Mabo, the point of divergence between his theory and the High Court’s decision lies in his acceptance (in accordance with pre-Mabo authority) of the English doctrine of tenure as having been received as part of the law of Australia and the consequences of that doctrine’s application. McNeil argued that since the doctrine of tenure would apply to all lands, including those occupied by Aboriginal inhabitants, it would give the Crown a paramount lordship over all those lands. And, if the existence of this lordship is explained by applying the fiction that the lands were originally possessed by the Crown, as a corollary, fictitious grants would have to be accorded to the Aboriginal landholders. Since seisin for an estate in fee simple is presumed from possession, and possession is presumed from occupation, the Aboriginal occupiers would have held fee simple estates as tenants of the Crown.328 Although the Crown would have been entitled to the benefits of its lordship, it would not have had any claim to the land itself. McNeil explained that: Because the Crown would be paramount lord over lands subject to common law Aboriginal title, it could no doubt include those lands within its grants; but in that case the grants would take effect as subinfeudations, creating mesne lordships in-between the indigenous landholders and the Crown. The grants would not, and could not, affect the fee simple title which the indigenous people would have by virtue of their occupation.329

Despite judicial recognition of native title by the Australian High Court, the fact that McNeil suggested that the two-fold fiction accompanying the feudal doctrine of tenure could explain how the fee simple title acquired by Aboriginal people was held of the Crown means that this aspect of his analysis requires qualification in the Australian context. The High Court’s rejection of the notion that the settled colony of Australia was uninhabited for the purposes of the common law doctrine of reception has resulted in the adjustment of ‘established’ legal doctrines to accommodate Aboriginal property rights. The retrospective effect of the colonisation of Australia and reception of English law limited the application of the doctrine of tenure, and its subsequent recognition of title, to ‘every Crown grant of an interest in land’.330 The doctrine’s fictional explanation is, therefore, similarly limited in its application to Australia. Accordingly, not only is the fiction of original Crown grant no longer relevant to any land in Australia, but the fiction of original Crown ownership is no longer relevant to land in Australia which was in fact occupied by Aboriginal people at the time of settlement. This result is in stark contrast to the aspect of McNeil’s argument which relies on the effect of the doctrine of tenure as creating a tenurial relationship between the Crown and the Aboriginal occupiers. Indeed, it is because McNeil accepted (also in accordance with pre-Mabo authority) the conventional colonial law classification of settled territory, irrespective of whether the territory is uninhabited or inhabited,331 that his theory applies the orthodox doctrine of reception and, a fortiori, the feudal doctrine of tenure. Although treating inhabited territories as legally uninhabited for the purpose of the doctrine of reception, McNeil concluded that the doctrine of continuity applies to a new colony regardless of the colony’s constitutional status.332 The contradictory distinction between the conventional 328   McNeil (n 3) esp 242. See also McNeil, ‘A Question of Title: Has the Common Law been Misapplied to Dispossess the Aborigines?’ (n 327) esp 106. 329   McNeil (n 3) 242–43. 330   Mabo (n 1) 48 (Brennan J). 331   Rather than Brennan J’s classification of inhabited settled territory. 332   McNeil (n 3) 177–79, 192.

134 ‘Inhabited’ Settled Colonies Post-Mabo doctrine of reception and doctrine of continuity is, however, the very antithesis of the High Court’s modified doctrine of reception: a singular doctrine which includes the test for determining whether pre-existing land rights survive a change in sovereignty (the continuity pro-tempore doctrine). Furthermore, although the Mabo judgment was expressly limited to pre-existing rights to land, McNeil’s conception of the doctrine of continuity applied to all pre-existing legal rights.333 Crucially, however, McNeil’s common law Aboriginal title theory could apply in the context of the inhabited settled colony of Australia if qualified so as to no longer rely on the effect of the feudal doctrine of tenure. That is, McNeil’s theory has two related but distinct aspects: first, common law Aboriginal title arises from the legal effect given to occupation of land by the common law and, secondly, the Crown’s paramount lordship and the tenurial relationship between the Crown and Aboriginal titleholders arise from the two-fold feudal fiction of original Crown ownership and grant. Rejection of the latter, as the High Court did in Mabo, does not necessarily entail rejection of the former. Thus, in an inhabited settled colony where the doctrine of tenure ad veritatem applies, Aboriginal title would arise under McNeil’s (qualified) theory from the common law consequences of occupation without invoking the doctrine of tenure ad veritatem (which only applies to every Crown grant of an interest in land). On the basis of pre-Mabo authority, Aboriginal title would give rise to an allodial title where the feudal doctrine of tenure did not apply. Although it will be seen in chapter seven that, post-Mabo, there is a different legal explanation for the content of Aboriginal title – including an external dimension based on the law which applies to land before it is brought within the doctrine of tenure ad veritatem by valid post-sovereignty Crown grant – the important point is that, in accordance with both the pre- and post-Mabo positions, Aboriginal title under McNeil’s (qualified) theory would confer all the benefits of absolute ownership. Furthermore, McNeil’s original common law Aboriginal title theory applies without qualification in the context of the preferable rule which fully equates the inhabitants of a settled colony with the inhabitants of a conquered colony post-act of State in respect of their rights in land. Under the preferable rule, the Crown cannot, by exercise of its prerogative to grant land, interfere with the pre-existing property rights of the inhabitants of any colonial acquisition. It has been seen that this is because when the Crown permitted the inhabitants to remain in possession of land, they obtained good title to it whether by the laws which the Crown allowed or established. Although there are three limbs to this fundamental principle, the position where the Crown introduces English land law in toto is relevant for present purposes: the inhabitants obtain good title according to the rules of the introduced common law ‘without grant or confirmation’ and concomitant protection from the Crown’s prerogative. Indeed, the limitations on the Crown’s prerogative powers in any inhabited colony mean that the effect of the doctrine of continuity pro-tempore is the same as the conventional doctrine of continuity. Thus, as originally established by McNeil, simple occupation of land at the time of settlement can give the occupiers common law title to the land. Furthermore, it will be seen in chapter seven that McNeil’s subsequent analysis of the sources and content of Aboriginal title is significant in the context of recognising Aboriginal customary law as a source of common law title.

  ibid 178, 192.

333



Post-Mabo Developments 135

III POST-MABO DEVELOPMENTS

A  High Court Decisions Although there have been a number of important High Court decisions on native title since Mabo, the correctness of the decision in Mabo and the fundamental principle which it establishes, namely that, contrary to the previous understanding of the law, native title survived the Crown’s acquisition of sovereignty in Australia, has not been challenged. Similarly, it has not been contested that the Crown, as sovereign, had the power, in accordance with law, to deal with land in every part of Australia and to the extent that it did so in a way which was inconsistent with native title, native title was extinguished.334 Following the High Court decisions in Western Australia v The Commonwealth,335 Wik Peoples v Queensland,336 Fejo v Northern Territory,337 Yanner v Eaton,338 Commonwealth v Yarmirr,339 Western Australia v Ward,340 Wilson v Anderson341 and Members of the Yorta Yorta Aboriginal Community v Victoria342 it is also clear that the majority of Brennan J’s reasoning in Mabo has been accepted by the High Court as the fundamental statement of the recognition and extinguishment of native title by the Australian common law.343 Moreover, members of the post-Mabo constituted High Court have expressed views on the ‘increasingly questioned fiction of tenure’,344 ‘radical title as a postulate of the doctrine of tenure’345 and the ‘extent of the reception of English land law’346 which support the Mabo Court’s redefined doctrine of tenure and modified doctrine of reception.   See above n 273ff.   Western Australia v Cth (n 12) 422–23, 439, 452, (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ), 492, 493–95 (Dawson J). 336   Wik (n 28) 84–85 (Brennan CJ), 135 (Guadron J), 175–76 (Gummow J), 213–14, 250 (Kirby J). For a detailed examination of the Wik High Court’s treatment of the two limbs of radical title, see ch 4. 337   Fejo (n 72) [44], [46]–[48] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ), [95]–[96], [101], [105]–[106] (Kirby J). This decision is considered in the context of the two limbs of radical title in ch 4. 338   Yanner (n 147) [35] (Gleeson CJ, Gaudron, Kirby and Hayne JJ), [60], [72] (Gummow J). In Yanner a majority of the High Court held that legislation regulating the keeping and taking of estuarine crocodiles did not extinguish native title. Thus, the High Court simply decided that there was no extinguishment of native title in this case. 339   Yarmirr (n 20) [46], [48] (Gleeson CJ, Gaudron, Gummow, Hayne JJ), [117], [161], [178] (McHugh J), [293] (Kirby J), [324] (Callinan J). 340   Ward (n 186). In this case, the Court emphasised that the extinguishment of native title was governed by the Native Title Act 1993 (Cth); that is statute lay at the core of the litigation: ibid [2], see also [1] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 341   Wilson v Anderson (n 203). Although the majority of the High Court in this case – like the High Court in Ward (n 186) – resolved the issues before them by reference to the Native Title Act 1993 (Cth) rather than the common law, they emphasised that the ‘common law’ test of extinguishment is ‘exemplified in Wik’: Wilson v Anderson (n 203) [47] (Gaudron, Gummow and Hayne JJ). For a detailed examination of this case in the context of the two limbs of radical title see ch 4. 342   Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58, (2002) 214 CLR 422 [133] (McHugh J), [172] (Callinan J). 343   See also Selway (n 123) 415. 344   Wik (n 28) 177–84, 187 (Gummow J), 215, 243, 244, 245 (Kirby J), see also 122 (Toohey J); Fejo (n 72) [108] (Kirby J); Yarmirr (n 20) [212] (McHugh J). Note that Gummow J only retired from the High Court in October 2012 pursuant to s 72 of the Commonwealth of Australia Constitution Act 1901 (Cth). See also WardFC (n 147) [805]–[808] where North J suggested that the doctrine of tenure should continue to be modified. 345   Wik (n 28) 127, 128 (Toohey J, expressly approving of Brennan J’s statements of principle in Mabo (n 1) 48, 50), 186 (Gummow J); Yarmirr (n 20) [49], [70], [71] (Gleeson CJ, Gaudron, Gummow and Hayne JJ), [178], [212] (McHugh J). 346   Wik (n 28) 182 (Gummow J). 334 335

136 ‘Inhabited’ Settled Colonies Post-Mabo While three members of the Yorta Yorta High Court (Gleeson CJ, Gummow and Hayne JJ) accepted that radical title ‘is a useful tool of legal analysis’, they suggested that it should not ‘be given some controlling role’.347 In Yarmirr,348 however, these judges (together with Gaudron J) had made it clear that the ‘concept of radical title provides an explanation in legal theory of how the two concepts of sovereignty over land and existing native title rights and interests co-exist’.349 It was the contention that ‘native title rights and interests cannot exist without the Crown having radical title to the area in respect of which the rights and interests are claimed’ which purported to give the legal concept of radical title a controlling role.350 The crucial point made by these judges is that radical title is ‘a tool of legal analysis which is important in identifying that the Crown’s rights and interests in relation to land can co-exist with native title rights and interests’.351 It is ‘a tool of analysis which reveals the nature of the rights and interests which the Crown obtained on its assertion of sovereignty over land’.352 Indeed, it is in this context that Brennan J’s leading judgment in Mabo identifying radical title as both the postulate of the doctrine of tenure and a concomitant of sovereignty (which has consistently been affirmed) is critical:353 the two limbs of radical title confer certain rights on the Crown in accordance with the High Court’s restatement of the common law. Significantly, in Wik, a reconstituted High Court reviewed the implications of Mabo for Australian real property law. By considering the consequences of pastoral leases for both the Crown’s title and native title, the High Court had a second opportunity to assess the applicability of English land law in the Australian context. The essence of the decision in Wik lies in saying that a pastoral lease, being a special measure to provide for Australian conditions, is not a lease as understood in English land law. For the Wik majority, a pastoral lease did not confer a right of exclusive possession on the grantee and, consequently, the grant of a pastoral lease did not necessarily extinguish native title rights and interests that might exist in or over the subject land. Nevertheless, the majority made it clear that, to the extent that the rights of the grantee of a pastoral lease were inconsistent with the continued enjoyment of native title, the native title interest must yield.354 More importantly, however, one of the main legal arguments in Wik (based on Brennan J’s ‘reversion expectant’ theory espoused in Mabo),355 was whether the mere grant of a pastoral lease, or for that matter of any leasehold interest in land, changed the underlying title of the Crown by creating a reversion expectant, thereby converting the Crown’s underlying title from mere radical title to full beneficial title, such that upon expiry of the term of the interest full beneficial ownership would revert to the Crown. The majority denied that the Crown acquired a beneficial reversionary interest upon the 347   Yorta Yorta (n 342) [38] (Gleeson CJ, Gummow and Hayne JJ). See also Yarmirr (n 20) [49] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 348   For a detailed examination of this case see ch 5 text to nn 108–83. 349   Yarmirr (n 20) [48] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 350   A role which it does not have: ibid [49]. 351  ibid. 352   ibid. See also discussion in ch 5 on the Crown’s title to the territorial sea. 353   See, eg, Wik (n 28) 127 (Toohey), 188 (Gummow J). 354   ibid 133 (postscript contained in Toohey J’s reasons and added with the concurrence of the other majority judges). 355   Mabo (n 1) 68, see also 72–73 (Brennan J). See also Wik (n 28) 88–89 (Brennan CJ), 187 (Gummow J). For a detailed discussion of the ‘reversion expectant’ theory see ch 4.



Post-Mabo Developments 137

grant of the relevant pastoral leases, with the result that the underlying title of the Crown continued to be mere radical title.356 The minority, on the other hand, adopted Brennan J’s dictum in Mabo that the doctrine of tenure was brought into play as soon as the Crown granted an interest in land357 and concluded that: [O]nce land is brought within [the doctrine of tenure], it is impossible to admit an interest which is not derived mediately or immediately from a Crown grant or which is not carved out of an estate or the Crown’s reversionary interest.358

For the minority, therefore, it was necessary to treat the Crown, on exercise of the power of alienation of an estate, as having the full legal reversionary interest. The minority also relied upon traditional property law authorities to characterise the pastoral leases issued under statute as common law leases conferring a right to exclusive possession. The divergence between the majority and minority judgments in Wik can be summarised in terms of differing approaches taken towards the utility of conventional English land law concepts once the Australian doctrine of tenure has been brought into play. The crucial point, however, and one that will be explored in the next chapter, is that the majority’s decision questions the applicability of the Australian doctrine of tenure notwithstanding the grant of an interest in land by the Crown, at least in the case of the grant of a pastoral lease.359 That is, although the fiction of original Crown ownership is brought into play to ensure the Crown its rights as Paramount Lord whenever the Crown exercises its sovereign power to grant a valid interest in land, it is clear that this fiction does not confer a beneficial reversionary title on the Crown.360 The Wik High Court rejected the beneficial reversion expectant argument specifically in the context of the statutory grant of an interest not given its content by the common law. Nevertheless, it will be seen in chapter four that the rationales underlying the majority judgments indicate how the justices might resolve the legal implications for the Crown’s title of the statutory grant of other interests in land, including the grant of a true common law lease. What emerges from the majority’s reasoning is a further ‘Australianisation’ of the land law lexicon.

356   Wik (n 28) 128, 129 (Toohey J), 155 (Gaudron J), 189 (Gummow J), 244–45 (Kirby J). The implications of the Wik decision for the Crown’s title on the grant of any interest in land are examined in ch 4. 357   Mabo (n 1) 48–49 (Brennan J). 358   Wik (n 28) 93 (Brennan CJ). 359   The role of the Australian doctrine of tenure on the grant of any lease, including a common law lease, is discussed in ch 4. Bhuta and McDermott have both argued that the decision in Wik emphasised that the feudal notions of tenure are inappropriate to modern Australia: N Bhuta, ‘Mabo, Wik and the Art of Paradigm Management’ (1998) 22 Melbourne University Law Review 24, 32–37; PM McDermott, ‘Wik and the Doctrine of Tenures: A Synopsis’ in G Hiley (ed), The Wik Case: Issues and Implications (Sydney, Butterworths, 1997) 37–39. See also WardFC (n 147) [805]–[808] (North J); Hepburn, ‘Disinterested Truth’ (n 28); S Hepburn, ‘Feudal Tenure and Native Title: Revising an Enduring Fiction’ (2005) 27 Sydney Law Review 49. cf Wik (n 28) 89–91 (Brennan CJ); Selway (n 123) esp 421, 431. 360   Indeed, it is clear that since radical title, as a concomitant of sovereignty, confers power on the Crown to grant unalienated land subject to native title in every part of Australia, the Crown’s power of alienation is divorced from the assumption that the Crown is the original proprietor of all land.

138 ‘Inhabited’ Settled Colonies Post-Mabo B  Native Title Legislation The implementation of native title legislation throughout Australia was achieved without express legislative reference to either the doctrine of tenure or the doctrine of reception. Nevertheless, the legislation provides both a statutory basis for the Mabo Court’s retrospective redefinition of the English doctrine of tenure and statutory endorsement of the Court’s rejection of the ‘desert and uncultivated’ doctrine for the purpose of the doctrine of reception. By codifying the Mabo definition of native title, the Native Title Act 1993 (Cth) (NTA)361 represents statutory recognition of rights in land which arise in some way other than by Crown grant.362 Consequently, the NTA provides a statutory basis for the doctrine of tenure ad veritatem.363 By providing a framework within which native title can operate, the NTA represents legislative confirmation that the doctrine of tenure is now only one system of landholding in Australia; native title, as a new dimension in Australian landholding, has a statutory basis. This new dimension to Australian landholding, added by the High Court in 1992, has thus attained legislative status in much the same way as the doctrine of tenure has under the various State and Territory real property legislation.364 The preamble to the NTA sets out five affirmations which acknowledge the prior occupation of Australia by Aboriginal peoples. In particular, it accepts and confirms the High Court’s rejection of the notion that ‘Australia was terra nullius (land belonging to no-one) at the time of European settlement’. Although the High Court did not reject the international doctrine of terra nullius365 or the classification of Australia as ‘settled’ at common law, it did reject the common law counterpart of the terra nullius doctrine. Accordingly, the recognition in the Preamble to the NTA necessarily entails the rejection of the common law ‘desert and uncultivated’ doctrine, which equated inhabited territory with uninhabited territory for the purposes of determining the law which is to govern a 361   This was not, however, the first legislative response to the Mabo decision; the Land Titles Validation Act 1993 (Vic) has that status: see J Hockley, ‘Mabo Legislation’ (1993) 1 Australian Property Law Journal 159. Because State and Territory native title legislation is valid only in so far as it is capable of operating concurrently with the Commonwealth Act (NTA, s 8), the discussion in this work focuses on the NTA. 362   See definition of ‘native title’ in s 223 of the NTA. Whether s 223 of the NTA and its interpretation by the High Court accurately reflect the Mabo definition of native title has, however, been questioned: see, eg, N Pearson, ‘The High Court’s Abandonment of “the Time-Honoured Methodology of the Common Law” in Its Interpretation of Native Title in Mirriuwung Gajerrong and Yorta Yorta’ (Sir Ninian Stephen Annual Lecture, University of Newcastle, 17 March 2003) (first key problem considered); M Tehan, ‘A Hope Disillusioned, An Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act’ (2003) 27 Melbourne University Law Review 523; K McNeil, ‘Mabo Misinterpreted: The Unfortunate Legacy of Legislative Distortion of Justice Brennan’s Judgment’ in T Bauman and L Glick (eds), The Limits of Change: Mabo and Native Title 20 Years On (Canberra, Australian Institute of Aboriginal and Torres Strait Islander Studies, 2012) 226–35. 363   Owing to the specifically native title orientation of the NTA, however, the Act fails to address the meaning and legal implications of the concept of radical title as the postulate of the doctrine of tenure and a concomitant of sovereignty. 364   See, eg, Property Law Act 1974 (Qld), ss 20, 21. It is noteworthy that, although undoubtedly based upon the premise that anyone holding land in Australia was holding it of the Crown, these provisions are consistent with the new common law position: the redefined doctrine of tenure. Section 20 refers simply to ‘[a]ll tenures created by the Crown upon any grant of an estate in fee simple’ and s 21 refers to ‘[l]and held of the Crown in fee simple’. 365   cf the third of the principles for which the decision in Mabo is authority listed by Lockhart J (with whom Whitlam and O’Loughlin JJ agreed) in Pareroultja v Tickner (1993) 42 FCR 32 (FCA) 34.



Conclusion 139

settled colony, and the implication that absolute ownership of land vested in the Crown.366 The NTA provides legislative endorsement of the High Court’s recognition of a new class of settled colony in which the common law includes the doctrine of tenure ad veritatem. IV CONCLUSION

The High Court’s decision in Mabo did not reject the doctrine of terra nullius in any sense of denying Australian sovereignty, which remains unjusticiable.367 Nor did the Court’s decision have the effect of re-classifying Australia as ‘conquered’ or ‘ceded’ rather than ‘settled’. Indeed, the High Court accepted that Australia was a settled colony. The new element introduced by the High Court was the recognition of a new class of settled colony at common law: an ‘inhabited settled’ colony.368 By ascribing to Australia the status of a legally inhabited colony acquired by settlement, the Court rejected the concept of terra nulllius, rather than the doctrine of terra nullius, in its application to questions of property at common law. Thus, although sovereignty over Australia had been acquired under the enlarged doctrine of terra nullius at international law, the common law ‘desert and uncultivated’ doctrine – which equated the settlement of an inhabited territory with settlement of an uninhabited territory in ascertaining the law of the territory on colonisation – was rejected.369 Consequently, the High Court proceeded on the basis that it was free to prescribe (because there was no law directly on point) a doctrine relating to the law that applied in the colony: a modified doctrine of reception. Application of the new doctrine of reception to Australia meant that, like other settled territories, the common law of England applied as far as applicable; but unlike other settlements, English common law principles relating to land did not immediately or necessarily apply.370 In particular, rather than acquiring absolute beneficial ownership of ‘every square inch of land’,371 the Crown acquired only a radical title to all land.372 The Crown’s radical title has two limbs: it is the ‘postulate of the doctrine of tenure’ and ‘a concomitant of sovereignty’. The former limb allowed the Mabo Court to redefine the English doctrine of tenure, or, more accurately, define the Australian doctrine of tenure ad veritatem. As the postulate of the doctrine of tenure ad veritatem, radical title ensures that the common law regime governing the doctrine of tenure is only brought into play when the Crown exercises its power to grant an interest in land. The doctrine of tenure’s limited role in Australian land law represents its essential point of divergence from the English doctrine: the two-fold feudal fiction of original Crown ownership and original Crown grant does not apply under the doctrine of tenure ad veritatem. The fiction of original Crown grant has been rendered otiose and the fiction of original Crown ownership is no 366   See the first of the principles for which the decision in Mabo is authority listed by Lockhart J (with whom Whitlam and O’Loughlin JJ agreed) in Pareroultja v Tickner (n 365) 34. 367   See above text to n 105. 368   Above text in para immediately following n 110, text to n 182. 369   Above text to n 96ff. 370   Above text to nn 19ff, 299ff. 371   Milirrpum (n 17) 245 (Blackburn J). 372   Above text to n 23ff.

140 ‘Inhabited’ Settled Colonies Post-Mabo longer of universal application, having been replaced with the ‘fiction of original Crown ownership of land which has actually been granted by the Crown’. Crucially, the legal consequences that flow from the feudal character of the English doctrine of tenure no longer apply ipso jure in Australia: although the ‘postulate of the doctrine of tenure’ limb of radical title continues to assure the Crown of its paramount lordship over tenures created by Crown grant, title to land is no longer exclusively derivative; all titles to land can no longer, theoretically, be traced back to a Crown grant.373 Indeed, it is because McNeil suggested that the two-fold fiction accompanying the feudal doctrine of tenure could explain the Crown’s paramount lordship and the tenurial relationship between the Crown and the Aboriginal occupiers that his original common law Aboriginal title theory requires qualification in the Australian land law context.374 If qualified so as to no longer rely on the effect of the feudal doctrine of tenure, McNeil’s theory could apply in inhabited settled colonies where the doctrine of tenure ad veritatem applies: Aboriginal title would arise from the common law consequences of occupation per se; the doctrine of tenure ad veritatem would not be invoked. Not only was the conventional doctrine of reception modified in its application to land law, but contrary to the conventional doctrine of reception, the modified doctrine of reception also included the test for determining whether pre-existing land rights survive a change in sovereignty; a test which is itself a merged version of the conventional continuity and recognition doctrines: the doctrine of continuity pro-tempore. Although this doctrine embraces a general presumption that pre-existing property rights continue after a change in sovereignty (the ‘continuity’ limb), the sovereign retains power to validly extinguish these surviving pre-existing property rights (the ‘recognition’ limb).375 Pursuant to the modified doctrine of reception, therefore, settlement conferred a radical title on the Crown which, as the postulate of the doctrine of tenure ad veritatem and the basis for the ‘continuity’ limb of the doctrine of continuity pro-tempore, allowed preexisting property rights to be accommodated within Australian land law. Crucially, however, the Mabo Court limited its recognition of pre-existing property rights to native title: a non-common law right. Moreover, because the Mabo Court held that the Crown’s radical title allowed it to unilaterally extinguish native title by inconsistent Crown grant per se, the recognised preexisting property rights of the inhabitants of a settled colony were not afforded the same protection as the pre-existing property rights of the inhabitants of conquered/ceded colonies. This result is explained by two interrelated incidents of radical title as a ‘concomitant of sovereignty’. First, the ‘recognition’ limb of the doctrine of continuity pro-tempore applied immediately upon acquisition of sovereignty ensuring that the Crown had power to validly extinguish pre-existing rights. Secondly, the scope of the Crown’s prerogative power of extinguishment (power to grant land subject to pre-existing rights) was held to depend upon the constitutional status of a colony.376 In conquered/ceded colonies, the doctrine of continuity pro-tempore applies post-act of State not only to pre-existing land rights but to all pre-existing legal rights. However, the limitations on the Crown’s prerogative powers relating to land in such colonies mean that, whether by the laws which the Crown allowed or established, all pre-existing prop  Above text to n 19ff.   Above text to n 326ff. 375   Above text to nn 191ff, 264–65. 376   Above text to n 197ff. 373 374



Conclusion 141

erty rights are protected from the exercise of the Crown’s prerogative. If English law is introduced in toto (including the feudal doctrine of tenure), the holders of the preexisting rights obtain good title according to the rules of the introduced common law ‘without grant or confirmation’ and thereafter the Crown cannot, by exercise of its prerogative, prejudice rights secured by the rules of the common law. If the new sovereign allows the former system of land law to continue, the rights of the new sovereign with respect to the acquisition, alienation and disposition of pre-existing rights are regulated by the sanctioned former law and thus protected from the Crown’s prerogative. And, although the new sovereign has power to alter old laws and introduce new laws, this power is subject to the fundamental principle that ‘undisputed’ property rights at the time of conquest/cession cannot be unilaterally expropriated in the absence of statutory authority.377 In contradistinction to conquered/ceded colonies where pre-existing property rights are protected from the Crown’s prerogative irrespective of their source, the restraints on the Crown’s prerogative to grant land in inhabited settled colonies were held to apply only to interests deriving from Crown grant or otherwise secured by the common law.378 Native title’s vulnerability to extinguishment by Crown grant thus flows from the fact that it is not a common law right.379 The Mabo Court’s position on extinguishment in inhabited settled colonies is not supported by pre-Mabo authority or legal principle. In addition to perpetuating the discriminatory treatment Aboriginal inhabitants of settled colonies received under the ‘desert and uncultivated’ doctrine, it effectively accords the Crown permanent act of State power vis-a-vis native title. Although there was no doctrine specifically prescribing the law that applied in a settled, yet legally inhabited, colony (a concept which would have been inconceivable in the colonial context), by acknowledging that the settled colony of Australia was inhabited, the High Court had the opportunity to reconcile the effect of colonisation on pre-existing property rights in all inhabited colonies (irrespective of their colonial classification): to adopt the preferable rule which fully equates the Aboriginal inhabitants of a settled colony with the inhabitants of a conquered/ceded colony post-act of State in respect of their pre-exiting rights to land; to ensure that, legislative expropriation apart, the Crown has no power to extinguish pre-existing property rights.380 And, since preexisting property rights in inhabited settled colonies would (under the preferable rule) be protected from the Crown’s prerogative upon the same principles which apply in conquered/ceded colonies, McNeil’s original common law Aboriginal title theory would be directly relevant in circumstances where English land law is introduced in toto: indeed, McNeil established the proposition that pre-existing land rights in a settled colony would automatically obtain the status of common law title under the introduced English law.381 The High Court did not, however, adopt the preferable rule. And by modifying the doctrine of reception which applied in an inhabited settled colony, the Court preserved the distinction between ‘settled’ and ‘conquered/ceded’ colonies for the purposes of   Above text to n 227ff.   Above text to nn 275–81, 285–89. 379   Mabo (n 1) 61 (Brennan J). cf the objections to this aspect of the Mabo Court’s decision: above text to nn 283–95; ch 8 n 7. 380   Above text to n 302ff. 381   Above text in para immediately following n 333. 377 378

142 ‘Inhabited’ Settled Colonies Post-Mabo extinguishment of pre-existing land rights and ascertaining the general law that is to govern a new colony (the doctrine of reception was only modified in its application to land law in the context of an inhabited settled colony). Nevertheless, it will be seen in chapter seven that the High Court’s restatement of the common law of Australia provides a potentially more important legal basis for recognising Aboriginal customary law as an independent source of non-derivative common law title to land. The restated common law makes it clear that although the fiction of original Crown grant is otiose in the context of the doctrine of tenure ad veritatem, when the Crown has in fact exercised its sovereign power to grant a valid interest in land, radical title allows the surviving (albeit no longer ubiquitous) fictional explanation of the doctrine of tenure – that the Crown originally owned all land – to apply to ensure the Crown of its feudal rights. In this way, radical title as the postulate of the doctrine of tenure enables the Crown to become Paramount Lord of all who hold a tenure validly granted by the Crown. Under the Australian doctrine of tenure, however, the fiction of original Crown ownership is excluded in respect of land which has not been the subject of an appropriate Crown grant (unalienated land, even if unoccupied at settlement). Indeed, even if this fiction is excluded only in respect of land which is both subject to pre-existing native title and has not been brought within the doctrine of tenure (unalienated and occupied land), the effect of the fiction in the context of unalienated and unoccupied land is not to give the Crown title to land.382 The fictional explanation merely justifies the feudal concept of paramount lordship.383 In this context, the Wik High Court has made it clear that even when previously unalienated land is brought within the regime governed by the doctrine of tenure ad veritatem by the Crown grant of a pastoral lease, the effect of the fiction of original Crown ownership is not to confer a beneficial reversionary interest. That is, the Crown’s wellestablished right of reversion on the grant of a lease does not confer a beneficial title where the Crown did not have a beneficial title before the grant. Indeed, the analysis in chapter four will demonstrate that this is also the case in the context of the Crown grant of a common law lease. As Edgeworth has suggested, the Australian doctrine of tenure ‘can be seen to have more in common with allodial systems where citizens . . . receive out-and-out transfers of land’.384 The High Court’s restatement of the common law of Australia also makes it clear that, in the case of unalienated land subject to pre-existing native title, the Crown must exercise its sovereign power before its underlying radical title converts to full beneficial ownership (the Crown must acquire a plenary title to unalienated and occupied land by validly appropriating to itself ownership of the land). Thus, in contradistinction to the Crown’s feudal title, which is a denial of the distinction between public and private law,385 the Crown’s radical title recognises the distinction between questions of sovereignty and land law but ‘operates as a linking concept between the . . . public law notion of sovereignty on the one hand, and the private law of proprietary rights on the other’.386   This proposition is fully explored in ch 4.   It will be seen in chs 4 and 6 that the Crown’s well-established prerogatives to escheat, reversion and forfeiture do not confer automatic title on the Crown. 384   Edgeworth (n 70) 419. 385   F Pollock and FW Maitland, The History of English Law Before the Time of Edward I, vol 1, 2nd edn (Cambridge, CUP, 1911) 230–31. 386   Edgeworth (n 70) 415. 382 383



Conclusion 143

The legal principles are, therefore, clear in respect of the presence of the Crown’s paramount lordship over land which has been validly brought within the doctrine of tenure ad veritatem (alienated land) and the absence of the Crown’s paramount lordship over land which has not been brought within the doctrine of tenure ad veritatem and which is subject to pre-existing native title (unalienated and occupied land). The legal principles are also clear in respect of the Crown’s beneficial ownership of land which has been subject to pre-existing native title where the Crown has effectively exercised its sovereign power to appropriate the land to itself (alienated land previously subject to native title). These principles, however, leave a crucial issue unresolved:387 what is the legal status of land which has neither been brought within the doctrine of tenure ad veritatem by valid Crown grant of an interest in the land nor appropriated to the Crown such that the Crown has acquired a plenary title to the land where the land is not subject to native title (unalienated land, unoccupied in terms of native title, at settlement)? Although there is High Court obiter suggesting that unalienated and unoccupied land belongs to the Crown because there is ‘no other proprietor’,388 the High Court has not had the opportunity to authoritatively determine this issue. Since the Crown certainly has radical title in respect of such unalienated land, the question of beneficial ownership of the land essentially depends upon the answer to the question: what is the juridical nature of radical title? This question raises the legal effect of the two limbs of radical title. This chapter has shown that it is not an incident of the ‘postulate of the doctrine of tenure’ limb of radical title whereby the Crown automatically acquires beneficial ownership of any land.389 By merely conferring on the Crown a bare legal title sufficient to support the doctrine of tenure when the Crown has validly exercised its sovereign power to grant an interest in land, this limb does not preclude recognition of rights in land, like native title, which are not derived from Crown grant. Significantly, this means that the limb is irrelevant when considering the question of beneficial ownership of unalienated land (whether occupied or unoccupied). More importantly, therefore, is the effect of the ‘concomitant of sovereignty’ limb of radical title. It is clear that as ‘a concomitant of sovereignty’ radical title confers power on the Crown to grant unalienated land, even if subject to native title, in every part of Australia so that the doctrine of tenure may apply to that land. Although there are a number of fundamental objections to this power, according to the High Court’s analysis it is because native title does not originate in the common law that the power does not offend the rule that ‘the King could not, by an exercise of his prerogative, prejudice those rights of his subjects which were secured to them by the rules of the common

387   These principles are only entirely clear where the Crown has validly alienated land by granting an interest that is wholly inconsistent with the continuing right to enjoy native title or where the Crown has validly appropriated land to itself and the appropriation is wholly inconsistent with a continuing right to enjoy native title. Where the Crown alienates land by granting an interest that is partially inconsistent with a continuing right to enjoy native title, and where the Crown has validly appropriated land to itself and the appropriation is partially inconsistent with a continuing right to enjoy native title, the issue of extinguishment (and thus, where bene­ ficial ownership lies) is more complicated: see ch 4, section IIff. 388   This will be examined in ch 4. 389   Although Edgeworth reaches the same conclusion on the effect of the doctrine of tenure, it will be seen in ch 4 that his conclusion on the effect of sovereignty on the Crown’s acquisition of property rights (Edgeworth (n 70) 415) differs from the author’s.

144 ‘Inhabited’ Settled Colonies Post-Mabo law’.390 A fortiori, the Crown’s power to grant unalienated land cannot be exercised so as to prejudice the common law property rights of Aboriginal people.391 It is also clear that the concomitant of sovereignty aspect of radical title does not, of itself, confer beneficial title on the Crown to any land which is subject to pre-existing native title. The question remains: does investiture of radical title, as a concomitant of sovereignty, create an automatic beneficial entitlement to any land which is not subject to pre-existing native title?392 Is the requirement that the Crown take further steps to become the owner of land limited to land subject to native title, or does it apply to all land? And, if the Crown does not automatically acquire a plenary title to any land, where unalienated land is not subject to pre-existing native title, who owns the land? The Crown no longer represents the only source of title to land in Australia. Although radical title as the postulate of the doctrine of tenure ad veritatem secures the Crown as one source of derivative title to land (when the Crown has validly alienated land), it does not preclude the existence of other interests in land which do not owe their existence to a Crown grant. Indeed, because the fiction of original Crown grant is no longer relevant in the Australian context, does this mean that titles previously acquired pursuant to grants which were deemed in law to have been made under the feudal doctrine of tenure and, therefore, regarded as ‘exceptions’ to the doctrine of tenure as there was no actual alienation by the Crown,393 now have a legal explanation? The potential implications of the High Court’s acknowledgment of mere radical title in the Crown will be considered in Part IV. Before doing so, however, it is necessary to establish the juridical nature of the Crown’s radical title as a concomitant of sovereignty: to what extent, if any, does it confer proprietary rights? Furthermore, it is necessary to consider the interrelationship of the two limbs of radical title. It is to these issues that we turn in chapter four.

  See above text to n 285ff.   See ch 7. 392   As suggested by Edgeworth (n 70). 393   See ch 1 text to n 124ff. 390 391

4 Radical Title and Unalienated Land Post-Mabo

A

LTHOUGH THE NOTION of radical title had emerged in Mabo,1 its conceptual content remained unclear.2 What was clear, however, was the High Court’s identification of radical title as both the postulate of the doctrine of tenure and a concomitant of sovereignty. It was seen in the preceding chapter that, as the postulate of the doctrine of tenure ad veritatem, radical title does not automatically confer bene­ ficial ownership of any land on the Crown. Indeed, because of the limited role of the doctrine of tenure in Australian land law, this limb of radical title merely confers a bare legal title sufficient to support the doctrine of tenure when the Crown has validly exercised its sovereign power to grant an interest in land. Thus, while this limb allows rights in land which are not derived from Crown grant to be accommodated within Australian land law,3 it is irrelevant when considering the question of the Crown’s beneficial ownership of land which has not been brought within the regime governed by the doctrine of tenure ad veritatem: unalienated land. It was seen in chapter two that there is considerable pre-Mabo authority for the proposition that, as a legal concept, radical title is merely a bare legal title to land; the right to acquire and confer title, but not title itself. Although such pre-Mabo authority did not expressly refer to the ‘two limbs of radical title’ identified by the High Court, it was seen that the New Zealand judicial concept of ‘technical seisin’ is simply another term for what the Australian High Court has designated the ‘concomitant of sovereignty’ limb of radical title.4 Nevertheless, no clear majority view on the meaning of radical title as a concomitant of sovereignty emerged from Mabo. Moreover, and despite the Mabo High Court beginning the process of bringing Australian law into line with these older precedents on radical title, all members of the Court assumed, in obiter, that the Crown would automatically have beneficial title to all unoccupied lands in an inhabited settled colony.5 Indeed, it was seen in chapter three that the majority of the Mabo Court suggested that there were four circumstances in which the Crown, upon acquisition of sovereignty,   Mabo v Queensland (No 2) (1992) 175 CLR 1 (HCA).   See N Rogers, ‘The Emerging Concept of “Radical Title” in Australia: Implications for Environmental Management’ (1995) 12 Environmental and Planning Law Journal 183; N Bhuta, ‘Mabo, Wik and the Art of Paradigm Management’ (1998) 22 Melbourne University Law Review 24, 33–35. 3   The only non-Crown derived rights to land currently recognised by the High Court are native title rights – rights which are not secured by the rules of the common law and thus vulnerable to extinguishment by inconsistent Crown grant: ch 3 text to nn 276–81, 285–89. cf the objections to this aspect of the High Court’s decision: ch 3 text to nn 283–95; ch 8 n 7. 4   See ch 2 text to nn 222ff, 243. 5   Mabo (n 1) 48 (Brennan J), 86–87 (Deane and Gaudron JJ), 182, 211–12 (Toohey J). 1 2

148  Radical Title Post-Mabo automatically acquired absolute beneficial ownership of land. In doing so, the majority suggested a more generous interpretation of radical title: as conferring full and unfettered beneficial rights except to the extent of native title. While all four circumstances involve unalienated land, a fundamental distinction has to be drawn between ‘original’ unalienated land – land which has never been brought within the regime governed by the doctrine of tenure – and ‘currently’ unalienated land – land which although previously having been brought within the tenurial regime by Crown grant, has ceased to be within it because the relevant Crown grant has expired. Three of the four aspects of the majority’s decision in Mabo which suggest a more generous interpretation of radical title involve original unalienated land and are considered in section I of this chapter. Sections II, III and IV deal with the only aspect of the majority’s decision on the juridical nature of radical title which involves currently unalienated land: residuary rights to land at the expiration of the term of a lease which has been granted over previously original unalienated land. The analysis in these sections is crucial: it involves a consideration of the interaction of both limbs of radical title. That is, since the postulate of the doctrine of tenure limb of radical title does not apply to original unalienated land, the question of beneficial ownership of such land depends upon the juridical nature of radical title as a concomitant of sovereignty. However, is the postulate of the doctrine of tenure limb of radical title relevant in determining the legal nature of the Crown’s title to currently unalienated land? Are the two limbs of radical title mutually exclusive in the context of currently unalienated land or do they apply contemporaneously? It was seen in chapter three that the majority in Wik Peoples v Queensland6 held that, upon the grant of a leasehold estate not amounting to a common law lease (the statutory grant of a pastoral lease), the Crown did not acquire a beneficial reversion expectant on expiration of the term and, thus, the Crown’s radical title did not expand into full bene­ ficial ownership. Nevertheless, the majority also made it clear that the rights of the grantee of such a leasehold estate could be inconsistent with the continued enjoyment of native title and, to the extent of the inconsistency, the native title interest must yield. Thus, although the fiction of original Crown ownership did not apply to confer beneficial ownership upon the Crown in respect of pastoral leases, any native title in respect of the relevant land might be extinguished on the ground of inconsistency with the grantee’s title. This does not, however, resolve the legal position with respect to other leases. In particular, what are the legal implications for the Crown’s title of granting a true common law lease? It is clear that, as a result of the Native Title Act 1993 (Cth) (NTA),7 the grant of such leases extinguishes native title. Indeed, the High Court’s decision in Western Australia v Ward8 has confirmed this. Nevertheless, does this necessarily mean that any residuary rights to the land in respect of which the lease was granted automatically lie with the Crown? In other words, is native title extinguished by the grant of a common law lease because of an expansion of the Crown’s radical title or because of inconsistency between the interest granted and the continued enjoyment of native title? It will be seen that the   Wik Peoples v Queensland (1996) 187 CLR 1 (HCA). See ch 3 text to n 354ff.   See discussion below text at n 293ff. 8   Western Australia v Ward [2002] HCA 28, (2002) 213 CLR 1 [369]–[372]. There is also High Court obiter to this effect at common law: see authorities cited below nn 155, 156. 6 7



Radical Title Post-Mabo 149

rationales underlying the individual judgments in Wik indicate how the justices might resolve the question of property rights to currently unalienated land: what are the legal implications for the Crown’s title of the statutory grant of interests in land other than pastoral leases, including the grant of a true common law lease? The answer to this question will help determine the scope for recognising common law Aboriginal rights to the land. The question examined in sections II, III and IV is, therefore, two-fold: does the Crown grant of a common law lease (whether pursuant to statute or at common law) based upon its radical title9 mean that the Crown acquires the reversion expectant on expiration of the term? And, if it does, is such reversion expectant sufficient to convert the Crown’s radical title into beneficial ownership of the land? Put another way: is the traditional common law definition of ‘reversion’ relevant when a lease is granted out of land in respect of which the Crown has mere radical title? It was seen in chapter three that once the Crown has exercised its sovereign power at common law to grant an interest in land, radical title allows the fiction of original Crown ownership to apply to ensure the Crown of its feudal rights. However, what is the effect of the fiction in the context of the grant of a common law leasehold estate: does it confer beneficial title to the leased land or does it merely confer a nominal proprietary interest sufficient to support the lease? Moreover, since all powers of alienation of interests in land in Australia are now governed by statute,10 the critical question is: what is the role, if any, of the fiction of original Crown ownership in the context of a grant made by the Crown pursuant to statute? Answering these questions involves a consideration of the implications, for the Crown’s title on the grant of a common law lease, of the High Court’s treatment in Wik of the ‘reversion expectant’ theory espoused by Brennan J in Mabo and Brennan CJ’s further suggestion in Wik that the grant of any estate in land necessarily confers full beneficial ownership on the Crown. Inherent in this examination is a consideration of the common law doctrine of extinguishment by Crown grant. In particular, it will be seen that the common law concepts of partial extinguishment and operational inconsistency and the test for extinguishment by freehold grant suggest that upon the grant of any estate (including a common law leasehold estate), the Crown does not acquire a beneficial reversionary interest. Before examining these specific issues, however, section II begins by considering whether, on general principles, the High Court’s identification of radical title as both a postulate of the doctrine of tenure and a concomitant of sovereignty support or undermine Brennan J’s reversion expectant dictum. Finally, the provisions of the NTA relating to leases are considered for their contribution to identifying the legal nature of the Crown’s reversion at common law. Crucially, this chapter shows that the High Court’s reasons for attributing beneficial ownership of unalienated land (whether ‘original’ or ‘currently’ unalienated) to the Crown constitute new legal fictions which have been created to replace the feudal fiction of ‘original Crown ownership’. The true position provides not only greater scope for recognising Aboriginal rights to land but, more importantly, for securing such rights by the rules of the common law.

  That is, in respect of land not part of the Crown’s demesne.   Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 (PC) 533; Wik (n 6) 91 (Brennan CJ), 189 (Gummow J).

9 10

150  Radical Title Post-Mabo

I  AUTOMATIC EXPANSION OF RADICAL TITLE IN RESPECT OF ORIGINAL UNALIENATED LAND: BRENNAN J’S RELIANCE ON THE ‘NO OTHER PROPRIETOR’ PRINCIPLE (RADICAL TITLE AS A CONCOMITANT OF SOVEREIGNTY)

Notwithstanding Brennan J’s comments, as author of the principal judgment in Mabo, suggesting that the concept of radical title amounts to a bare legal title sufficient merely to support the doctrine of tenure,11 he referred to the Crown’s radical title automatically expanding to absolute beneficial ownership, a plenum dominium, in four situations: where there is ‘no other proprietor’;12 where native title has expired; where native title has been surrendered to the Crown;13 and on the expiry of the term of a lease granted by the Crown (the ‘reversion expectant’ argument).14 The ‘no other proprietor’ observation was made in the context of land which had never been alienated by the Crown and thus refers to ‘original’ unalienated land.15 Since the postulate of the doctrine of tenure limb of radical title does not apply to original unalienated land, the question of beneficial ownership of such land depends entirely upon the juridical nature of radical title as a concomitant of sovereignty. Brennan J also explained that once traditional native title expires or is surrendered,16 ‘the Crown’s radical title is expanded to absolute ownership, a plenum dominium, for there is then no other [proprietor]’.17 Thus, Brennan J’s analysis treats the expiration and surrender of native title as aspects of the general ‘no other proprietor’ principle in the context of original unalienated land. In contrast, because Brennan J’s ‘reversion expectant’ observation was made in the context of Crown grants which have the effect of extinguishing native title, this instance of expansion of radical title is not a manifestation of the ‘no other proprietor’ principle; rather it presupposes that there was another proprietor. Furthermore, it relates to land which, although having previously been alienated, is currently unalienated because the relevant Crown grant has expired. A  Beneficial Ownership of Original Unalienated Land? The ‘No Other Proprietor’ Principle: New Legal Fiction Replacing the Feudal Fiction of Original Crown Ownership – Attorney-General (NSW) v Brown Revisited Authority for the proposition that ownership of unalienated land which is not subject to native title must lie with the Crown since there is ‘no other proprietor’ was attributed to Stephen CJ in Attorney-General (NSW) v Brown.18 It will be shown, however, that both this aspect of the decision in A-G v Brown and Brennan J’s reliance upon it in Mabo are, with respect, incorrect in law on three distinct grounds.   See ch 3 text to n 24ff.   Mabo (n 1) 48. 13   ibid 60. 14   ibid 68. 15   ibid 48. 16   The native title may be surrendered on purchase or voluntarily: Mabo (n 1) 60 (Brennan J). 17   Mabo (n 1) 60. See also Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 [121] (Olney J). 18   Attorney-General (NSW) v Brown (1847) 1 Legge 312 (NSWSC) 317–18. See also Mabo (n 1) 26–28, 48 (Brennan J). 11 12



The ‘No Other Proprietor’ Principle 151

i  Obiter Comment: Incorrect in Law In A-G v Brown, Stephen CJ did not advance the ‘no other proprietor’ principle as a reason for the Court’s decision. It was merely an obiter comment made in the course of interpreting certain legislation: At the moment of its settlement the colonists brought the common law of England with them . . . The same has indeed been said of the statute law, but that is not now in question . . . We will refer, however, to precedents; and to Acts of the Legislature, both at home and in this colony. In the late Act, of 5 & 6 Vic, c.36, the waste lands of the Crown, and (in the title) the waste lands belonging to the Crown, in the Australian colonies are mentioned. It will hardly be disputed, that by these words were meant all the waste and unoccupied lands of the colony; for, at any rate, there is no other proprietor.19

Furthermore, since the question of unalienated land was not legally essential to the decision in Mabo, there is no holding on the point which is binding as a matter of legal precedent. It is, therefore, necessary to consider this submission in terms not only of dicta in legal authority but also by reference to legal principle. ‘Sometimes when an important point must be decided, obiter dicta, once analysed, are found to be wanting’.20 Although A-G v Brown21 did not consider the entitlement of Aboriginal Australians to land, it is probably the most important pre-Mabo case regarding the Crown’s original title to land in Australia. The defendant22 was the lessee of 60 acres of land near Newcastle which had been granted to the lessor23 in 1840. The Crown grant contained a reservation of, inter alia, ‘all mines of gold and silver and of coals’.24 The defendant leased the land on 1 September 1844 and proceeded to mine for coal upon it.25 On 1 July 1845 the Crown brought an action against the defendant for intrusion, alleging that by working the coal mines upon the land contrary to the terms under which the land was originally granted by the Crown, the defendant had encroached upon the Crown’s property. At the trial, the entry into the mines of coal by the defendant was proved. Consequently, defence counsel, Richard Windeyer, argued that the defendant had a right to make such entry and dig for and carry away the coal as he saw fit. Of the four grounds advanced to support this argument, one challenged the Crown’s title to land. Windeyer maintained that there was a distinction between ‘the right of sovereignty over the soil and country . . . and the possession or the title to the possession in or of that soil, with power to grant the same’ (bold emphasis added).26 Although it was argued that sovereignty was unquestionably in the Crown, beneficial ownership and the power to grant the same was denied.27 Accordingly, Windeyer ‘boldly asserted, and endeavoured to . . . [show], that   A-G v Brown (n 18) 318–19.   Fejo v Northern Territory [1998] HCA 58, (1998) 195 CLR 96 [100] (Kirby J). 21   The argument occupied three days and was originally reported in The Sydney Morning Herald (Sydney, 22 July 1846) 2–3, (Sydney, 11 February 1847) 2. 22   James Brown. 23   Arthur Charles Fitzroy Dumaresq. 24   Cited in A-G v Brown (n 18) 313 (Stephen CJ). 25   AR Buck, ‘Attorney-General v Brown and the Development of Property Law in Australia’ (1994) 2 Australian Property Law Journal 129. 26   A-G v Brown (n 18) 314. 27   ibid. Stephen CJ summarised the defendant’s arguments (at 316) as follows: ‘The Queen had, it was said, the sovereignty and dominium directum in the soil. The Sovereign was the ultimus hoeres. But he could exercise no act of ownership against a subject’. 19 20

152  Radical Title Post-Mabo the Crown has not and never had any property in the waste lands of the Colony’.28 This argument is, of course, not new: the courts in R v Symonds,29 Johnson v M’Intosh30 and Worcester v Georgia31 all regarded the Crown’s power of disposition as an incident of beneficial title with the consequence that, since the Crown did not automatically have title to land, it had to acquire title before it could grant the land.32 In A-G v Brown, the only consequence contemplated by the Court of the correctness of this argument was that a system of allodial ownership would exist in the colony, which the Court unanimously rejected.33 On the issue of the Crown’s title, Stephen CJ (delivering the judgment of the Court) stated the Court’s opinion to be: ‘that the waste lands of this Colony are, and ever have been, from the time of its first settlement in 1788, in the Crown. . . . and that, as his or her property, they have been and may now be effectually granted to subjects of the Crown’.34 In support of this conclusion, Stephen CJ gave three reasons. First, ‘[t]he territory of New South Wales, and eventually the whole of the vast island of which it forms a part, have been taken possession of by British subjects in the name of the Sovereign. They belong, therefore, to the British Crown’.35 Although acknowledging that this supposed property in the Crown based upon the Crown’s original title to lands as ‘universal occupant’ is generally a fiction, the Court could see no reason why this principle, which was universal in the law of England, should not be equally in operation in Australia.36 With the wisdom of hindsight, it is clear that this proposition is inconsistent with the High Court’s redefined doctrine of tenure. It was seen in chapter three that, post-Mabo, the doctrine of tenure ad veritatem and the accompanying fiction of original Crown ownership applies only in respect of land that has, in fact, been granted or alienated by the Crown. The second reason Stephen CJ gave for attributing absolute beneficial ownership of all land to the Crown upon settlement was that, unlike England, where the Crown’s original title to land is generally a fiction: [I]n a newly-discovered country, settled by British subjects, the occupancy of the Crown with respect to the waste lands of that country, is no fiction. If, in one sense, those lands be the patrimony of the nation, the Sovereign is the representative, and the executive authority of the nation, the ‘moral personality’ . . . by whom the nation acts, and in whom for such purposes its power resides. Here is a property, depending on its support on no feudal notions or principle.37

That is, the Crown’s title was acquired by occupancy of part in the name of the whole. Although this argument, relying upon the two Roman principles of occupancy and patrimony, was not fully addressed by the High Court in Mabo, Brennan J expressly rejected the patrimony of the nation argument for attributing beneficial ownership to the Crown38 and the majority of the Court rejected the proposition that the Crown   A-G v Brown (n 18) 316.   R v Symonds (1847) [1840–1932] NZPCC 387 (NZSC). 30   Johnson v M’Intosh 21 US 543 (1823) (USSC). 31   Worcester v Georgia 31 US 515 (1832) (USSC). 32   See generally ch 2. 33   The High Court has made it clear that allodial title does exist in Australia: Ward (n 8) [331] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 34   A-G v Brown (n 18) 316. 35   ibid 317. 36   ibid 318. 37  ibid. 38   See ch 3 text to nn 39–44. 28 29



The ‘No Other Proprietor’ Principle 153

acquired absolute beneficial ownership of all land in Australia by occupancy on the basis that, since sovereignty and property rights are doctrinally distinct, the fact that the continent of Australia was not uninhabited at the time of settlement meant that ownership could not be acquired by occupying land that was already occupied by another.39 Although this appears, prima facie, to leave open the possibility that the Crown could have acquired title to unoccupied land by occupancy, it will be seen in chapter six that both legal authority and principle deny such a result. Finally, although Stephen CJ relied upon early Imperial and colonial enactments and precedents as a third reason for attributing absolute beneficial ownership of waste lands of Australia to the Crown since settlement,40 such instruments merely recognised the Crown’s right to grant interests in land; they did not, nor did they need to, assert any property rights of the Crown in unalienated land. Indeed, all three precedents cited by Stephen CJ (Penn v Lord Baltimore,41 Chief Justice Stokes’ book on the North American Colonies and Mr Chalmers’ Collection of Opinions) merely demonstrate that from the time when colonies were first known, there is no example of a grant of lands in them, except by the Crown.42 Similarly, all of the legislative provisions referred to by the Chief Justice are equally consistent with acknowledgment of mere radical title in the Crown. Stephen CJ referred specifically to four Imperial enactments: the Sale of Waste Lands Act 1842 (Imp);43 An Act to provide, until the Thirty-first Day of December One Thousand Eight Hundred and Thirty-Four, for the Government of His Majesty’s Settlements in Western Australia, on the Western Coast of New Holland 1829 (Imp);44 the Australian Agricultural Company’s Act 1824 (Imp);45 and the Statute 7 & 8 Will 3 c 22 s 16. It was in the context of discussing the Sale of Waste Lands Act 1824 (Imp)46 that Stephen CJ articulated his infamous ‘no other proprietor’ statement.47 This 1842 Imperial enactment introduced comprehensive statutory controls over the alienation of Crown land in the Australian colonies.48 Stephen CJ observed that it could hardly be disputed that the terms ‘waste lands of the Crown’ and the ‘waste lands belonging to the Crown’, mentioned in the Act and the Act’s title respectively, meant ‘all the waste and unoccupied lands in the colony; for, at any rate, there is no other proprietor of such lands’.49 No doubt the terms were defined by Stephen CJ in the belief, which was current in 1846,50 that the absolute ownership of all land in the colony was vested in the Crown until it was   Mabo (n 1) 45 (Brennan J, Mason CJ and McHugh J concurring), 180–82 (Toohey J).   Albeit in obiter: A-G v Brown (n 18) 318–19. 41   Penn v Lord Baltimore (1750) 1 Ves Sen 444, 27 ER 1132 (Ch) referred to in A-G v Brown (n 18) 319. 42   A-G v Brown (n 18) 319. See A Stokes, A View of the Constitution of the British Colonies in NorthAmerica and the West Indies at the Time the Civil War Broke Out on the Continent of America (London, Printed for the author and sold by B White, 1783); G Chalmers, Opinions of Eminent Lawyers on Various Points of English Jurisprudence, Chiefly Concerning the Colonies, Fisheries, and Commerce of Great Britain (London, Reed and Hunter, 1814). 43   5 & 6 Vic c 36. This Act is discussed below text to n 46. See also ch 6 text to n 306ff. 44   10 Geo 4 c 22. 45   5 Geo 4 c 86. 46   See above n 43. 47   A-G v Brown (n 18) 319. 48   Although not referred to by Stephen CJ, the later Imperial statutes 9 & 10 Vic c 104 and 11 Vic c 61, which were both passed to regulate the sale of waste land in the Australian colonies, are also consistent with confirmation of mere radical title in the Crown. 49   A-G v Brown (n 18) 319. 50   R v Steel (1834) 1 Legge 65 (NSWSC). 39 40

154  Radical Title Post-Mabo alienated by the Crown. Nevertheless, and quite apart from the Mabo High Court’s finding that acquisition of property is not a corollary of acquisition of sovereignty, as the principal object of the Act was to ensure that land in the colonies was only alienated by sale,51 there was no need to attribute to the Crown absolute beneficial ownership of the waste lands of the colony for the purposes of the Act; investiture of a power of alienation, mere radical title, was sufficient. For Stephen CJ the significance of the statute entitled An Act to provide . . . for the Government of His Majesty’s Settlements in Western Australia . . . 1829 (Imp),52 which recites that divers of the Crown’s subjects had settled in certain unoccupied lands in Western Australia, was that such settlement was done with the consent and licence of the Crown.53 His Honour also noted that the Australian Agricultural Company’s Act 1842 (Imp),54 which was established ‘for the cultivation and improvement of waste lands’ in the colony, enacted that, ‘in case a charter shall be granted to them, the Company may lawfully hold all such lands as shall be granted to them by His Majesty’.55 Pursuant to the final Imperial Act referred to in this context, the Statute 7 & 8 Will 3 c 22 s 16, the Crown’s patentees were restrained from selling, without licence, to any other than natural born subjects of the Crown. Although Stephen CJ only expressly acknowledged that the relevance of this last enactment was that it recognised the Crown’s right to make grants of land,56 this was clearly also the importance of the other two Acts.57   5 & 6 Vic c 36, s 17.   See above n 44. 53   A-G v Brown (n 18) 319. 54   See above n 45. 55   A-G v Brown (n 18) 319. 56  ibid. 57   Stephen CJ also referred to two types of colonial enactments: the Acts for restraining the unauthorised occupation of the waste lands of the colony and the Acts for appointing Commissioners to report on disputed claims to grants of land. Only in respect of the latter type of Act did Stephen CJ cite two particular examples: An Act to remove doubts concerning the validity of Grants of Land in New South Wales (6 Will 4 c 16) and An Act to remove doubts concerning the Validity of certain Grants of Land in New South Wales (3 Vic c 1). Statutes passed to remove doubts concerning the validity of grants of land in New South Wales required no more than ratification by the Crown in exercise of its sovereign power; a process necessitating no more than acknowledgment of the Crown’s mere radical title to all land and the fact that the Crown’s sovereign power to grant land, conferred by such radical title, had been exercised. Nevertheless, the Chief Justice went further and concluded that in these Acts, not only the right of the Crown to grant waste lands but ‘the title of the Crown to the waste lands . . . are too plainly recognised to admit of question’: A-G v Brown (n 18) 320. Although Stephen CJ referred to the Acts for restraining the unauthorised occupation of waste lands in general terms, he noted that such Acts – eg An Act for protecting the Crown Lands of this Colony from Encroachment Intrusion and Trespass (4 Gul 4 c 10) – were important in two respects: not only are ‘Crown lands . . . mentioned eo nomine [in these Acts, but] their unauthorised occupation is said, expressly, to be derogatory to the rights of the Crown’: A-G v Brown (n 18) 320. With respect to the designation of the waste lands of the colony as ‘Crown lands’, Stephen CJ had already accepted that the term ‘waste lands of the Crown’ meant ‘all the waste and unoccupied lands in the colony’ (emphasis added): ibid 319; see also ch 6 text to n 315. Since radical title confers a power of alienation over all land, it is axiomatic that the Crown must have radical title in respect of any unalienated land, whether occupied or unoccupied at settlement. Furthermore, although these colonial Acts expressly referred to the unauthorised occupation of unalienated Crown land as being ‘derogatory to the rights of the Crown’, the measures contained in the Acts simply gave effect to the colonial government’s policy of regulating the occupation of unalienated land by making it unlawful to occupy land beyond the limits of location without a lease or licence. Thus, the Governor, as repository of both executive and legislative power, on behalf of the Crown, was merely regulating the use of the land pursuant to the Governor’s powers to legislate within the colony. This is also consistent with the High Court’s treatment of the statutory regulation of native title in Yanner v Eaton [1999] HCA 53, (1999) 201 CLR 351 which was analysed by North J in Western Australia v Ward [2000] FCA 191, (2000) 99 FCR 316 (FCAFC). See also ch 6 text to n 195ff; U Secher, ‘Implications of the Crown’s Radical Title for Statutory Regimes Regulating the Alienation of Land: “Crown Land” v “Property of the Crown” Post-Mabo’ (2008) 34 Monash University Law Review 9. Indeed, in the event that the Crown is 51 52



The ‘No Other Proprietor’ Principle 155

The precedents and legislative provisions relied upon by Stephen CJ are, therefore, consistent with investiture of mere radical title in the Crown, rather than also asserting the Crown’s absolute ownership of the land. Furthermore, Stephen CJ was purporting to refute the contention that titles to land granted by the Crown to third parties were ‘without foundation’.58 Thus, his Honour was concerned with the title of the Crown grantee, not the title of the Crown per se. Nevertheless, he erroneously assumed that, in order for title to derive from the Crown, the Crown must have beneficial title to the land. In other words, if the Crown did not have absolute beneficial ownership of land, the Crown could not effectively grant the land:59 an assumption which has been rejected by the High Court in both Mabo and Wik. Significantly, this assumption also underpinned Robert Windeyer’s argument, as defence counsel, in A-G v Brown. Moreover, Stephen CJ rejected Windeyer’s argument for this very reason. Although Stephen CJ summarised Windeyer’s argument to be that ‘the Crown has not and never had any property in the waste lands of the colony’,60 Windeyer’s submission was, with respect, more complicated. He maintained that there was a distinction between ‘the right of sovereignty over the soil and country . . . and the . . . title to the possession in or of that soil, with power to grant the same’.61 Although sovereignty was unquestionably in the Crown, beneficial ownership and the right to grant the same were denied. Thus, there were two limbs to Windeyer’s argument: the first acknowledged that sovereignty and property rights were separate; the second attributed the power to grant beneficial ownership as an incident of beneficial title and therefore denied the Crown this power. The first limb reflects the High Court’s decision in Mabo and, on this point, is consistent with the decisions in Johnson,62 Worcester,63 Southern Rhodesia64 and Nireaha Tamaki.65 It, therefore, supports the conception of radical title as a bare legal title and the basis for the doctrine of tenure ad veritatem. The second limb, however, departs from the High Court’s analysis. The High Court, like the courts in Southern Rhodesia66 and Nireaha Tamaki,67 has made it clear that the power to grant interests in land is an incident of radical title (rather than beneficial title); it was on this point that the argument in A-G v Brown failed. In light of the Court’s conclusion in A-G v Brown that the Crown had an actual title by occupancy, there was no need to resort to the feudal fiction. Like any fiction, it would apply only to give effect to the purpose for which it was invented68 and, therefore, would not apply to lands which the Crown was actually entitled to by occupancy. Furthermore, held to have acquired a beneficial title to any, or all, unalienated land not subject to native title as a result of the various statutory definitions of ‘Crown land’, statutory trespass provisions, registration pursuant to the Torrens statutes, or statutory provisions vesting title in the Crown, the argument that radical title is merely a bare legal title rather than a full proprietary right is intact. This is because a full beneficial title does not vest in the Crown by the common law but by force of statute. That is, the root of the Crown’s title is statutory. 58   A-G v Brown (n 18) 319. 59   Like the Courts in Symonds (n 29), Johnson (n 30), Worcester (n 31): see generally ch 2. 60   A-G v Brown (n 18) 316. 61   ibid 314. 62   See above n 30. 63   See above n 31. 64   Re Southern Rhodesia [1919] AC 211 (PC). 65   Nireaha Tamaki v Baker [1901] AC 561 (PC). 66   See ch 2 text to n 82ff. 67   See ch 2 text to n 269ff. 68   Morris v Pugh (1761) 3 Burr 1241, 97 ER 811 (KB).

156  Radical Title Post-Mabo and contrary to Stephen CJ’s conclusion, the occupancy of the Crown of unalienated lands was more fiction than fact; a residue of the feudal notion that sovereignty and ownership of land were fused.69 Nevertheless, by suggesting in Mabo that the Crown must be the absolute beneficial owner of unoccupied and unalienated lands because there is ‘no other proprietor’, Brennan J (with whom Mason CJ and McHugh JJ concurred) recognised that not all unalienated land in Australia is subject to native title. The land is unoccupied because neither the Crown nor native title holders occupy it.70 It will be seen in chapter seven, however, that although a native title claim to land may not be supported, Aboriginal people may be able to establish common law Aboriginal customary title to the same land, whether such title arose before or after Crown sovereignty. If there is a legal explanation to the question of property rights in unalienated land, whether original or currently unalienated, there is no need to resort to a new legal fiction, whether the ‘no other proprietor’ fiction or the ‘reversion expectant’ fiction considered in section II. Although, pre-Mabo, acquisition of title by occupancy was severely restricted by the fiction that all lands were originally possessed and owned by the Crown, since Mabo this fiction only applies in respect of a tenure created by Crown grant.71 Accordingly, the fiction of original Crown ownership can no longer, of itself, exclude acquisition of first title to unalienated and uninhabited real property in Australia.72 There is, therefore, the potential to accommodate sources of title in addition to Crown grant and native title within Australian land law. Indeed, it will be seen under the next heading that this includes accommodating the ‘exceptions to strict feudal theory’. ii  Crown Not in Fact Proprietor of all Land Under Feudal Theory The second objection to the ‘no other proprietor’ principle is that, even in English feudal theory where sovereignty and property are fused, the existence of a principle that the Crown is the proprietor of all land for which no subject can show a title has been expressly denied by the House of Lords in Bristow v Cormican.73 Referring to the first occupant of a vacant estate pur autre vie, Lord Blackburn said that it is so far from being the case that the Crown is entitled by the prerogative to such land that

  See ch 6 esp text to n 25; Rogers, ‘The Emerging Concept of “Radical Title” in Australia’ (n 2) 189.   In the context of the feudal doctrine of tenure see Sadlers’ Case (1588) 4 Co R 54b, 58a–58b; 76 ER 1012, 1019–20 (Ch): ‘this difference was taken and agreed; when the King’s tenant dies in possession without heir, so that in such case possessio est vacua, and in nobody, there the law will adjudge the King (in whom no laches shall be reckoned) in actual possession immediately; but when another is in seisin and possession at the time of the escheat so that possess ‘plena est et non vac’, there the King shall not be adjudged in possession till this seisin and possession is removed, as if the King’s tenant is disseised and dies without heir; or if an alien born, or the King’s villein, or the alienee in mortmain is disseised, and all this is by office, in these cases the King shall not be in possession till the possession and seisin of the terre-tenant is removed’. This issue is further explored in ch 6. 71   On the pre-Mabo position: see K McNeil, Common Law Aboriginal Title (Oxford, Clarendon Press, 1989) 11 and authorities cited in fn 19. See also comments in Hatfield v Alford (1846) 1 Legge 330 (NSWSC) 337 (Stephen CJ). On the post-Mabo position see generally ch 3. 72   This is explored further in ch 6 text to n 87ff where the decision in Step v Hinton [2012] NTCA 3 is considered. 73   Bristow v Cormican (1878) 3 App Cas 641 (HL). This case has been considered by K McNeil, ‘Has the Common Law been Misapplied to Dispossess the Aborigines?’ (1990) 16 Monash University Law Review 91, 101. See also McNeil, Common Law Aboriginal Title (n 71) 85 fn 29. 69 70



The ‘No Other Proprietor’ Principle 157 in the only instance in which no one could shew a title, I mean that of an estate granted to one for the life of another, where the grantee died leaving the cestui que vie, the law cast the freehold on the first occupant of the land. It was never thought that the Crown was entitled in such a case.74

Nevertheless, in Williams v Attorney-General for New South Wales75 Isaacs J’s observed that ‘[i]t has always been a fixed principle of English law that the Crown is the proprietor of all land for which no subject can show a title’. His Honour did, however, point out that this is a ‘feudal principle’.76 As a result of the Mabo High Court’s finding that sovereignty and property rights are doctrinally distinct in Australian land law, and the consequential redefinition of the feudal doctrine of tenure, this ‘feudal principle’ is not strictly appropriate in the Australian context. Furthermore, as shown in chapter one the feudal theory that all lands are held mediately or immediately of the Crown was always tempered by a number of antithetical factors. In addition to the possible acquisition of title by occupancy of a vacant pur autre vie estate, was the existence of allodial land and the acquisition of land rights by virtue of customary law predating the tenurial scheme.77 The crucial point is that these ‘exceptions’ to strict feudal theory can now be accommodated within Australian land law as redefined by the High Court. Although radical title secures the Crown as one source of derivative title to land, it does not preclude the existence of interests in land that do not derive from Crown grant. iii  ‘No Other Proprietor’ Principle Contradicts Legal Origins and Purpose of Radical Title The third objection to the ‘no other proprietor’ basis for absolute Crown ownership is that it contradicts the reasoning inherent in the Mabo judgments. According to Brennan J’s analysis, the effect of radical title as a postulate of the doctrine of tenure is to give the Crown a paramount lordship over all who hold a tenure granted by the Crown. The effect of radical title as a concomitant of sovereignty is two-fold: first, it enables the Crown, in exercise of its sovereign power, to grant an interest in land to be held of the Crown and, secondly, it enables the Crown to acquire land for the Crown’s demesne.78 The Crown’s paramount lordship, therefore, constitutes the feudal aspect of radical title, whereas the Crown’s general power of alienation constitutes the sovereignty aspect of radical title. Importantly, it is the sovereignty aspect of radical title which links the two limbs: as a concomitant of sovereignty, the Crown’s radical title confers power to validly grant land in every part of Australia, including land subject to native title.79 In this way, radical title as a postulate of the doctrine of tenure has the potential to give the Crown a paramount lordship over all land. 74   Bristow v Cormican (n 73) 667. See also ibid 652–53 (Lord Cairns), 658 (Lord Hatherley). Although this case arose in Ireland, where the Crown had acquired the territory by conquest, Lord Gordon assumed that the applicable law was the same as in England: ibid 671. 75   Williams v Attorney-General for New South Wales (1913) 16 CLR 404 (HCA) 439. 76  ibid. 77   See ch 1 text to n 124ff. 78   Mabo (n 1) 48 (Brennan J). In the case of land subject to native title, the right to acquire property rights takes the form of an exclusive right of pre-emption: see ch 2 text to n 243; ch 3 text to n 314ff. 79   On the High Court’s decision to limit the restraints on the Crown’s prerogative to grant land in inhabited settled colonies to interests deriving from Crown grant or otherwise secured by the common law see ch 3 text to nn 275–81, 285–89. On the objections to this aspect of the High Court’s interpretation of radical title see ch 3 text to nn 283–95; ch 8 n 7.

158  Radical Title Post-Mabo Indeed, it was seen in chapter one that it was to assure the Crown the rights attached to its paramount lordship that the dual fiction that the Crown was originally in possession, and therefore owner, of all land and that all titles to land were derived from Crown grant was invented.80 Accordingly, the doctrine of tenure is concerned primarily with feudal relations. In the context of the postulate of the doctrine of tenure limb of radical title, the fiction of original Crown ownership was invented to explain how the feudal relationship arose. That is the fiction’s purpose. Indeed, all members of the Mabo High Court recognised that the purpose of radical title was to enable the doctrine of tenure to apply in Australia.81 The extent of radical title as a postulate of the doctrine of tenure should, therefore, be limited to the minimum necessary to support the doctrine. The effect of the doctrine is to create a tenurial relationship between the Crown and the grantee; where there is no grant by the Crown, no feudal relations exist. Thus, the Crown’s radical title cannot be used to claim rights as Paramount Lord over land in respect of which the Crown has not validly exercised its sovereign power to grant an interest in land. Similarly, in the context of the concomitant of sovereignty limb of radical title, although the Crown’s general power of alienation supports the plenary title of the Crown, such a result is only possible ‘when the Crown has [validly] exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory’.82 Thus, this limb cannot be used to claim land in respect of which the Crown has not exercised its sovereign power in this way.

II  AUTOMATIC EXPANSION OF RADICAL TITLE IN RESPECT OF CURRENTLY UNALIENATED LAND: BRENNAN J’S ‘REVERSION EXPECTANT’ ARGUMENT (RADICAL TITLE AS BOTH THE POSTULATE OF THE DOCTRINE OF TENURE AND A CONCOMITANT OF SOVEREIGNTY)

In section I it was shown that the ‘no other proprietor’ principle is a new legal fiction created as the counterbalance to the High Court’s rejection of the fictional explanation of the universality of the feudal doctrine of tenure.83 Furthermore, it was shown that Brennan J’s analysis treats the expiration and surrender of native title as aspects of a general ‘no other proprietor’ principle. The final instance of expansion of radical title suggested by Brennan J, namely, residuary rights to land in which a limited interest has been granted by the Crown, is, however, in a different position. That is, land which resumes an unalienated status as a result of the expiration of a limited interest which has previously been granted by the Crown relying upon its radical title is in a different position to original unalienated land. What happens when such a limited interest expires, or is terminated or surrendered? In Mabo, Brennan J adopted the ‘reversion expectant’ theory:

  See ch 1 text to n 120ff.   See ch 3 text to nn 22–24 (Brennan J), 58–61 (Toohey J), 75, 78 (Deane and Gaudron JJ), 89 (generally). 82   Mabo (n 1) 50 (Brennan J). 83   Which was only possible because the Court rejected the common law ‘desert and uncultivated’ doctrine: see ch 3 text to n 91ff. 80 81



‘Reversion Expectant’ Argument 159 if a lease be granted, the lessee acquires possession and the Crown acquires the reversion expectant on the expiry of the term. The Crown’s title is thus expanded from mere radical title and, on the expiry of the term, becomes a plenum dominium.84

It has been noted that this observation was made in the context of Crown grants which have the effect of extinguishing native title. Consequently, this instance of expansion of radical title is not a manifestation of the ‘no other proprietor’ principle. Although the arguments advanced in section I for rejecting the ‘no other proprietor’ principle are, therefore, irrelevant, it will be seen that to argue that the Crown on granting a lease acquires a beneficial reversionary interest in the land which confers absolute beneficial ownership is ‘to read too much into the Crown’s title’.85 Indeed, when the High Court had the opportunity to directly consider this particular instance of expansion of radical title in Wik, the majority of the Court rejected it. They made it clear that the statutory grant of a pastoral lease does not require the expansion of radical title into full beneficial ownership; such a grant does not confer a full legal reversion expectant upon the expiration of the term. The pastoral leases in Wik were granted over previously unalienated land, that is, land in respect of which the Crown had radical title. This is not equivalent to the grant of a lease by the Crown as holder of land in demesne. A grant of a leasehold estate over land in respect of which the Crown has effectively appropriated beneficial ownership to itself, brings different considerations: the normal common law rules would apply. This is because, rather than simply having mere radical title to the land, the Crown is the beneficial owner. The Crown would, therefore, acquire a full legal reversion expectant, as that concept was understood at common law pre-Mabo, upon expiry of the term of the lease.86 Although this result appears, prima facie, to accord with Brennan J’s dictum in Mabo concerning the Crown’s ‘reversion expectant’ on a lease granted by the Crown, this is not so. Brennan J’s dictum specifically refers to the situation where a lease has been granted over land in respect of which the Crown has mere radical title, rather than full beneficial ownership. Thus, Brennan J’s dictum is only relevant vis-a-vis unalienated and unappropriated land; where the Crown’s title to land has already expanded from mere radical title to a plenum dominium, it has no application. Importantly, the reversion expectant argument was one of the aspects of Brennan J’s decision in Mabo which suggested a more generous interpretation of radical title: that is, irrespective of the terms of a lease, the mere granting of any lease would necessarily expand the Crown’s radical title into a plenum dominium and thus extinguish native title. Indeed, in Wik, Brennan CJ (as he had become) not only affirmed his earlier position, but went further and suggested that the Crown grant of any estate in land necessarily conferred full beneficial ownership on the Crown: ‘It is only by treating the Crown, on exercise of the power of alienation of an estate, as having the full legal reversionary   Mabo (n 1) 68.   The phrase is Toohey J’s: Wik (n 6) 129. 86   Nevertheless, it will be seen that in the context of a lease granted out of the Crown’s demesne land, any extinguishment of native title would occur as a result of the Crown’s initial acquisition of beneficial ownership of the land, not because of the Crown’s subsequent acquisition of the reversion expectant upon the grant of a lease: see below text to nn 111, 123ff, 214ff. See also U Secher, ‘The Legal Nature of the Crown’s Title on the Grant of a Common Law Lease Post-Mabo: Implications of the High Court’s Treatment of the “Reversion Expectant” Argument – Part 1’ (2006) 14 Australian Property Law Journal 1; U Secher, ‘The Legal Nature of the Crown’s Title on the Grant of a Common Law Lease Post-Mabo: Implications of the High Court’s Treatment of the “Reversion Expectant” Argument – Part 2’ (2006) 14 Australian Property Law Journal 31. 84 85

160  Radical Title Post-Mabo interest that the fundamental doctrines of tenure and estates can operate’.87 According to this approach, the grant of any lease over unalienated land, including a lease equivalent to a common law lease,88 would result in the Crown being deemed to have acquired the full legal reversion expectant on the expiry of the term. Brennan CJ was of the view that ‘it is impossible to admit an interest which is not derived mediately or immediately from a Crown grant or which is not carved out from either an estate or the Crown’s reversionary title’.89 The crucial point is that, although Brennan CJ’s approach supports the view that the Crown has to exercise its sovereign power before it acquires beneficial ownership of land, it presupposes that any exercise of the power of alienation of an estate necessarily confers such beneficial ownership so that, thereafter, any interest in the land must be derived from Crown grant. According to this view, once the Crown has brought land within the regime governed by the doctrine of tenure ad veritatem by an appropriate exercise of the power of alienation of an interest in land, not only is the fiction of original Crown ownership invoked, but the Crown is deemed to be the beneficial owner of the land. Although Brennan J was author of the principal judgment in Mabo, his conclusion in Wik was as author of the minority judgment. Nevertheless, it was seen in chapter three and section I of this chapter that, at common law, once the Crown validly exercises its sovereign power to grant an interest in land, radical title allows the fiction of original Crown ownership to apply to ensure the Crown of its feudal rights. The question is, therefore, what does this mean? What are the implications for property rights to currently unalienated land? While the Wik High Court made it clear that the fiction of original Crown ownership did not apply to confer beneficial ownership upon the Crown on the statutory grant (or expiration) of pastoral leases, what is the effect of the fiction of original Crown ownership on the Crown grant of a common law lease based upon its radical title? Is Brennan CJ’s analysis appropriate in the context of the statutory grant of interests in land other than pastoral leases, including the grant of a true common law lease? Before examining the individual judgments in Wik and how their underlying rationales might resolve the question of beneficial ownership of currently unalienated land, the text under the next heading considers how, on general common law principles, the High Court’s identification of the two limbs of radical title answers this question. A  Beneficial Ownership of Currently Unalienated Land? Common Law Implications of the ‘Reversion Expectant’ Argument: The Two Limbs of Radical Title and General Principles i  Radical Title as the Postulate of the Doctrine of Tenure: A Bare Legal Title90 Although Brennan J’s reversion expectant dictum has been interpreted to suggest that the grant of a common law lease extinguishes native title, it in fact refers to the Crown’s   Wik (n 6) 93.   Since the grant of any interest in land in Australia is now governed by statute, this means a leasehold interest created by statute where that interest is given its content by the common law. 89   Wik (n 6) 91. Thus, the Chief Justice observed that it was only in respect of ‘unalienated and unappropriated land’ that native title was recognised as subsisting in Mabo: Wik (n 6) 92. 90   See also Secher, ‘The Legal Nature of the Crown’s Title – Part 1’ (n 86) 4–9. 87 88



‘Reversion Expectant’ Argument 161

title, on becoming a plenum dominium, as having the extinguishing effect.91 Accordingly, it is not the title acquired by the lessee which affects native title. The majority of the High Court in Wik have, however, made it clear that, although the Crown’s radical title does not expand into full beneficial ownership upon the statutory grant of a pastoral leasehold estate, the rights of the grantee of such a leasehold estate can be inconsistent with the continued enjoyment of native title and, to the extent of the inconsistency, the native title interest must yield. Significantly, the Wik majority’s conclusion that radical title did not confer a bene­ ficial reversionary interest is consistent with the fundamental common law role, as declared by the majority of the Mabo High Court,92 of radical title as the postulate of the Australian doctrine of tenure. It has been seen that the practical effect of radical title being vested in the Crown is to enable the system of private ownership of estates held of the Crown to be observed.93 The system of private ownership of estates held of the Crown, however, rests not only on the doctrine of tenure but also on the doctrine of estates.94 As a legal concept, the doctrine of estates explains the interests of those who hold from the Crown, not the title of the Crown itself.95 Accordingly, the rights conferred on a grantee by a particular estate may be inconsistent with native title notwithstanding that the Crown does not have, and never had, any beneficial title to the granted land. That is, although the Crown’s radical title does not confer beneficial title on the Crown, it does allow derivative title to pass to the grantee when the Crown has validly exercised its power to grant an interest in the land. In this way, the rights that a particular estate confers on a Crown grantee may be inconsistent with the continuance of any native title rights and, to the extent of the inconsistency, extinguish the native title rights. Thus, native title is extinguished as a result of the operation of the doctrine of estates, not the doctrine of tenure. Put another way, native title is extinguished by the real title of the grantee, not the fictional title of the Crown. Significantly, this conclusion is consist­ ent with the decision in Mabo: since the essence of that decision lies in saying that the Crown’s fictional title cannot preclude the existence of native title, it logically follows that such fictional title cannot, of itself, extinguish native title. Like the ‘no other proprietor’ dictum, therefore, Brennan J’s ‘reversion expectant’ dictum contradicts his own, as well as the rest of the Mabo Court’s, explanation of the legal origins and purpose of radical title.96 Indeed, it was seen in chapter one that, preMabo, as a result of the universality of the fiction of original Crown ownership, the law was able to justify the Crown’s feudal claim to a paramount lordship over all lands by deeming all holdings by subjects to be derived from royal grants. Nevertheless, the effect of the feudal fiction was simply to give the Crown its rights as feudal lord. Although all 91   It focuses on an expansion of the Crown’s title. See North Ganalanja Aboriginal Corp v Queensland (1995) 61 FCR 1 (FCA) 29 (Lee J). See also Gurubana-Gunggandji People Determination (National Native Title Tribunal, 1995, QN94/12) 17; RH Bartlett, Native Title in Australia, 2nd edn (Australia, LexisNexis Butterworths, 2004) 341. 92   See generally ch 3. 93   Above text to n 81. 94   Brennan CJ has described these two doctrines as the ‘interlocking doctrines of tenure and estates’: Wik (n 6) 90. 95   ibid 128 (Toohey J). 96   See above text to n 78ff. It will also be seen that Brennan J’s dictum contradicts his own views on the common law doctrine of extinguishment of native title by Crown grant: below text to n 226ff.

162  Radical Title Post-Mabo land was deemed to be held of the Crown, feudal theory never adopted the theory that the Crown ‘owned’ all the land.97 The Crown was seised of the land, not in demesne but in service.98 This sort of seisin could also be attributed to a reversioner, who was in reality a lord with a tenant below him.99 In the context of leases, an estate in reversion automatically vests in possession as soon as the term of the lease expires.100 For present purposes, therefore, the question that needs to be addressed is whether the grant by the Crown of a common law lease relying upon its radical title requires the creation of a reversion and, if it does, whether the reversion, when ultimately vested in possession, confers a beneficial title. It will be seen that the answer to the question differs according to whether it is resolved in the context of the pre-Mabo feudal doctrine of tenure or the post-Mabo doctrine of tenure ad veritatem. It is clear that once the Crown has exercised its sovereign power, at common law, to grant an interest in land not part of its own demesne, the land is brought within the regime governed by the doctrine of tenure ad veritatem and the fiction of original Crown ownership is invoked. Consequently, when the Crown grants a leasehold estate out of land in respect of which the Crown has mere radical title (that is, before the Crown has acquired an actual title to the land; unalienated land), the common law vests a reversionary interest in the Crown in order to support and enforce the relationship of landlord and tenant. Although this reversionary interest will be supplied by virtue of the application of the fiction of original Crown ownership, the fiction is only invoked to achieve the intended grant, it does not apply to confer title on the Crown.101 When the Crown’s radical title is merely a right of reversion,102 it has merely a right to acquire or regrant title when the grantee’s estate comes to an end.103 That is, although the Crown effectively loses its radical title for the duration of the grant (which is replaced with a fictional paramount lordship),104 it has a right to acquire or regrant title when the   See ch 1 text to nn 115–19; ch 3 text to nn 59–61.   F Pollock and FW Maitland, The History of English Law Before the Time of Edward I, vol 2, 2nd edn (Cambridge, CUP, 1911) 38. ‘More and more an incorporeal thing or group of incorporeal things supplants the land as the subject matter of the lord’s right and lord’s seisin. He is entitled to and seised of, not the land itself, but a seignory, the services, fealty, homage of a tenant’: ibid 39. See also ch 1 text to nn 116–19. 99   Pollock and Maitland, 2 The History of English Law (n 98) 39. 100   KE Digby, An Introduction to the History of the Law of Real Property, 3rd edn (Oxford, Clarendon Press, 1884) 215–16; P Butt, Land Law, 5th edn (Sydney, Lawbook Co, 2006) paras 606, 612. See also ch 6 text to n 167. 101   See below text to nn 123ff, 214ff. See also ch 3 text to nn 59–61. While this was strictly also the position under feudal theory, where the Crown granted a lease over unalienated land pre-Mabo the fiction of original Crown ownership was deemed to confer a full beneficial reversionary interest: see below text in para before n 112, text to nn 184, 194. 102   When land has been granted to a subject, the Crown’s radical title is merely a right of reversion or a right to acquire title in accordance with its well-established prerogative rights to escheat, bona vacantia and forfeiture. These rights are part of the sovereign’s jura regalia and fall to the Crown as part of its prerogative title: AttorneyGeneral of Ontario v Mercer (1883) 8 App Cas 767 (PC) 778. This concept is further examined in ch 6. 103   On the question of the Crown’s title where land escheats to the Crown see 2 Bl Comm 245; ch 6 text to n 169. cf McNeil (n 71) 218, ch 3 fn 60 and accompanying text to the effect that the doctrine of tenure can result in an actual title where land escheats to the Crown. 104  While the Crown retains power to compulsorily acquire private property in Australia, this power is entirely statutory. Section 51(xxxi) of the Constitution confers upon the federal Parliament power to make laws for the acquisition of property from any state or person in respect of which the Parliament has power to make laws and provides that where land is compulsorily acquired ‘just terms’ compensation must be paid to the expropriated owner. Apart from this constitutional principle which applies to all federal legislation, at common law it is a firmly established rule of law that a statute will not be interpreted as authorising the expropriation of property without payment of compensation unless an intention to do so is clearly expressed; an 97 98



‘Reversion Expectant’ Argument 163

grant determines. This right to acquire or regrant title does not, however, mean that the Crown is seised in demesne.105 Since the reversion expectant is vested in interest, the right to possession, seisin in demesne, arises in the future.106 Furthermore, although the fiction of original Crown ownership supports the reversionary interest at common law, once the term of the lease expires, the fiction is spent. Thus, the Crown’s fictional reversionary interest does not automatically vest in possession.107 Rather, once the grant determines, the nature of the Crown’s title returns to its essential character before the fiction of original Crown ownership applied; the Crown’s right which returns to it does not lose its essential character: it has always been dominium minus plenum or nuda proprietas.108 For the Crown to acquire a plenary title upon the expiration of the lease (that is, for a beneficial interest to vest in possession) there must be an appropriate exercise of sovereign power. Although the rights that a particular lease confers upon a lessee might be inconsistent with native title and, to that extent, extinguish it, this does not affect the proposition that radical title, without more, does not allow the Crown to assume ownership of any residuary rights to the land.109 Under the post-Mabo doctrine of reversion, the Crown simply takes back what it had before the intervening, but now ceased, rights of the tenant: that is, its radical title.110 Thus, unless the Crown has full beneficial ownership of leased land immediately prior to the grant of the lease, the estate in reversion which the Crown acquires does not automatically confer beneficial ownership when the lease determines; the interest which vests in the Crown upon the expiration of the lease is the same interest which the Crown had immediately prior to the grant of the lease: radical title.111 Pre-Mabo, of course, irrespective of whether a leasehold estate was granted out of the Crown’s demesne or out of land in respect of which it is now clear that the Crown had a mere radical title, conventional legal theory attributed a full beneficial reversionary interest to the Crown. That is, where necessary the fiction of original Crown ownership was deemed to confer a full beneficial reversionary interest. This result was, no doubt, because, pre-Mabo, the feudal doctrine of tenure did not distinguish between a lease granted out of the Crown’s demesne land and a lease granted out of land in respect of which the Crown had mere radical title. Post-Mabo, however, the traditional common law definition of reversion, based on the assumption that sovereignty conferred absolute beneficial ownership of all land upon the Crown, is only relevant in the context of a leasehold estate granted out of land forming part of the Crown’s demesne. Where the Crown grants a lease based upon its radical title, the fiction of original Crown ownership only supplies a nominal proprietary interest to support the lease granted for the intention to take away property without compensation should not be imputed to a state legislature in the absence of express and unequivocal terms: Inglewood Pulp & Paper Co Ltd v New Brunswick Electric Power Commission [1928] AC 492 (PC) 498; CJ Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400 (HCA) 406. 105   See ch 6 text in paras following n 166. 106   On the distinction between vested ‘in interest’ and ‘in possession’ see Butt, Land Law 2006 (n 100) paras 612, 1214. 107   In any event, the fiction of original Crown ownership never conferred title on the Crown: see above n 101. 108   That is, this interest will ‘come back’: Pollock and Maitland (n 98) 21. See also ch 6 text to nn 166–67. 109   See below text to n 240ff. 110   For a discussion of the common law’s abhorrence of an abeyance of seisin in the context of the redefined doctrine of tenure see ch 6 text to n 164ff. 111   See ch 6 text to nn 166–69.

164  Radical Title Post-Mabo duration of its term. That is, the meaning of reversion in this context is different from the traditional common law meaning: reversion means the resumption of radical title. ii  Radical Title as a Concomitant of Sovereignty: No Legal Requirement for a Reversion Expectant to Support a Lease by the Crown112 Although a private individual who carves out an estate (whether in a term of years or any other interest in land) must do so out of a larger estate and the larger must be sufficient to support the creation of the lesser, these limitations do not apply to the sovereign power exercising sovereignty. Thus, although a reversion expectant is implied by law when the holder of a freehold estate grants only part of that estate,113 the Crown’s radical title is sufficient to create an interest for a term of years without requiring the creation of a reversion expectant. Indeed, the High Court has made it clear that, contrary to the pre-Mabo view, the exercise by the Crown of the right to grant tenure in land is not dependent upon the Crown’s beneficial ownership of the land. Unless the Crown has more than mere radical title to the land, therefore, the Crown does not have, nor need, a freehold estate when a lease is created.114 Since the Crown’s radical title is an aspect of its sovereignty, it is sufficient to create an interest in land without requiring a beneficial interest in the land. Where the Crown does not enjoy beneficial ownership of land when a lease is created by the Crown, upon the expiration of the lease the land reverts to its previous legal status, land over which the Crown has a mere radical title, and the Crown once again has the capacity to grant interests in that land.115 The Crown does not require a beneficial interest to create an interest and the creation of an interest which has subsequently expired does not alter that position. There is no legal requirement for a reversion expectant to support a Crown lease where the land leased was not, immediately before the lease was created, part of the Crown’s demesne, and none is created. iii Summary While it appears that the two limbs of radical title contradict one another, at common law the two limbs are not mutually exclusive when land has been alienated: both limbs apply contemporaneously. Although the postulate of the doctrine of tenure limb dictates that a reversion is created upon the grant of a leasehold estate, the concomitant of sovereignty limb dictates that such reversion merely confers a nominal proprietary interest sufficient to support the lease for its duration. Thus, the High Court’s identification of radical title as both the postulate of the doctrine of tenure and a concomitant of sovereignty provides two legal bases for denying, on general principles, that the Crown acquires a beneficial 112   See also Secher, ‘The Legal Nature of the Crown’s Title – Part 1’ (n 86) 9–11. There is another basis for denying any legal requirement for a reversion expectant to support a lease: namely, because a lease is a chattel interest. Leasehold tenure played no part in the scheme of tenures which existed at common law. Having developed relatively late, it stood outside the feudal system, and thus is both historically and legally separate: R Megarry and HWR Wade, The Law of Real Property, 5th edn (London, Stevens & Sons Limited, 1984) 13 fn 5. See also J Williams, Principles of the Law of Real Property, rearranged and partly rewritten by TC Williams, 23rd edn (London, Sweet & Maxwell, 1920) 16–17. cf ibid 364. 113   A reversion is ‘never created by deed or writing, but arises from construction of law’: 2 Bl Comm 175. 114   cf 2 Bl Comm 175: ‘[t]he doctrine of reversions is plainly derived from the feudal constitution’. 115   Indeed, for the duration of a grant the Crown has statutory power to compulsory acquire private property: see above n 104.



‘Reversion Expectant’ Argument 165

reversionary interest upon the grant of any lease. By definition, therefore, the High Court’s conception of radical title is inconsistent with Brennan J’s ‘reversion expectant’ dictum: the Crown does not automatically acquire beneficial ownership of any currently unalienated land. Importantly, however, while the Mabo Court’s conception of radical title supported the Crown’s sovereign powers to appropriate land to itself and grant interests in land to others, these prerogatives have since been displaced by statutory powers.116 Accordingly, the legislative regimes regulating the alienation of interests in Australian land now constitute a sufficient source of the same power. This is crucial because the consequences of radical title as a postulate of the doctrine of tenure may be irrelevant to the grant of an interest pursuant to statute. Indeed, it will be seen that at least two members of the majority in Wik considered that where the grant of leases is regulated by statute, notions of the common law apt for tenurial holdings under the Crown should not be introduced.117 Thus, although it has been demonstrated in the context of the postulate of the doctrine of tenure limb of radical title that a reversion is a present interest which gives a future right to seisin and cannot, therefore, create a new and different interest in the reversioner, this conclusion may be otiose in the context of the statutory grant of a lease. Instead, the concomitant of sovereignty limb of radical title may dictate that the Crown can create an interest for a term of years without requiring the creation of a reversion expectant. This is crucial: while the new common law definition of reversion in the context of the grant of a lease based upon radical title, as a nominal proprietary estate sufficient to support the lease granted, rejects feudal notions and thus embraces the less fictional role of the doctrine of tenure ad veritatem in Australian land law,118 the conclusion that no reversion is necessary to support the statutory grant of any lease by the Crown represents a rejection of the role of the doctrine of tenure ad veritatem. Nevertheless, whether a reversion consisting of a nominal proprietary estate is created or no reversion is created, the result is the same: in either case, upon the expiration of a lease, the Crown’s interest in the land does not lose its essential character; it continues to be a mere radical title. Although this is the legal position based upon general principles deduced from the High Court’s identification of the two limbs of radical title, it is instructive to examine how the High Court in Wik specifically dealt with Brennan J’s reversion expectant dictum and his further suggestion (as Chief Justice and author of the minority judgment in Wik) that the grant of any estate in land necessarily confers full beneficial ownership on the Crown. Indeed, it will be seen that notwithstanding the High Court’s subsequent decision in Ward,119 Wik continues to be authoritative not only in the context of the nature of the Crown’s title at the expiration of a lease, but also in the context of the common law doctrine of extinguishment.120   See below n 214 and text. See also ch 6 text to n 195ff.   Gummow J and Kirby J: see below text to nn 145–57, 158–64. The implications for the legal nature of the Crown’s title to land (beyond those on the grant of a lease) of the statutory regime regulating the alienation of land in Australia is considered in ch 6 text to n 195ff. 118   Ensuring that the fiction of original Crown ownership does not confer beneficial ownership on the Crown when it exercises the right to grant a leasehold estate based upon its radical title. 119   Above n 8. 120   That is, the majority of the High Court in both Ward (n 8) and Wilson v Anderson [2002] HCA 29, (2002) 213 CLR 401 resolved the issues before them by reference to the NTA rather than the common law. Indeed, the majority of the Wilson High Court emphasised that the ‘common law’ test of extinguishment is ‘exemplified in Wik’: Wilson v Anderson [2002] HCA 29, (2002) 213 CLR 401 [47] (Gaudron, Gummow and Hayne JJ). 116 117

166  Radical Title Post-Mabo B  The High Court, Radical Title and the Reversion Expectant i  Wik The concept of radical title arose for reconsideration in Wik as a result of the Court’s examination of the consequences for native title of the expiration of a pastoral lease, namely, whether native title rights were thereby extinguished permanently or whether such rights were merely suspended.121 One of the specific legal arguments in Wik was based on Brennan J’s ‘reversion expectant’ theory espoused in Mabo.122 All members of the High Court, therefore, discussed Brennan J’s dictum and, in doing so, reviewed the relevance of traditional English interpretations in determining the meaning of radical title and reversion expectant. a  Majority Judgments123 Toohey J approved of Brennan J’s explanation in Mabo of the content of radical title as being a bare nominal title only; essentially a power of alienation, rather than a full and unfettered beneficial interest except to the extent of native title. In support of this approach, Toohey J quoted with approval the following passage by Brennan J in Mabo: Recognition of the radical title of the Crown is quite consistent with recognition of native title to land, for the radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory).124

Consequently, Toohey J found it difficult to accept the argument based upon Brennan J’s ‘reversion expectant’ dictum. To support his decision to reject this aspect of Brennan J’s approach, Toohey J referred to both limbs of radical title. In the context of the concomitant of sovereignty limb, Toohey J declared that although it was clear from the judgments in Mabo that the attribution of radical title to the Crown was a necessary concomitant of its sovereignty over Australia and thus empowered the Crown to grant interests in land,125 ‘radical title does not of itself carry beneficial ownership’.126 Accordingly, the grant of an estate in land does not require the Crown to assume beneficial ownership of the land. Nor was such a result dictated by the relevant legislation.127 Thus, although the radical title lies with the Crown immediately before the grant of a pastoral lease, Toohey J questioned the relevance of speaking of the Crown acquiring the ‘reversion’ in such a case and of the Crown’s title becoming a ‘plenum dominium’.128 As a postulate of the doctrine of tenure, however, radical title enables the Crown to become Paramount Lord of all who hold a tenure created by Crown grant: the common   Bhuta, ‘Mabo, Wik and the Art of Paradigm Management’ (n 2) 33.   See above text to n 84. 123  See also Secher, ‘Implications of the Crown’s Radical Title for Statutory Regimes Regulating the Alienation of Land’ (n 57) 15–20. 124   Wik (n 6) 128 quoting Mabo (n 1) 50. 125   Wik (n 6) 127. 126  ibid. 127   ibid. See also ibid 244 (Kirby J); North Ganalanja Aboriginal Corp (n 91) 29 (Lee J). 128   Wik (n 6) 128. 121 122



‘Reversion Expectant’ Argument 167

law, therefore, vests a reversionary interest in the Crown in order to support and enforce the relationship of landlord and tenant. Nevertheless, Toohey J found that the invocation of reversion and plenum dominium, as those expressions are usually understood, did not lie easily with the position of the Crown under the relevant statutes.129 He referred to the traditional definition of a reversion as ‘the interest which remains in a grantor who creates out of his own estate a lesser estate’.130 However, he noted that the ‘doctrine of estates is a feudal concept in order to explain the interests of those who held from the Crown, not the “title” of the Crown itself’.131 Accordingly, Toohey J was of the view that to speak, in relation to the position of the Crown under the relevant statutes, of a reversion expectant on the expiry of the term of the lease as expanding the Crown’s radical title to a plenum dominium was to apply the concept of reversion to an unintended end.132 In Toohey J’s view, therefore, to argue that the Crown, on granting a lease, acquires a ‘beneficial reversionary interest’ in the land which ‘ensures that there is no room for the recognition of native title rights, is . . . to read too much into the Crown’s title’.133 He referred to the ‘curious paradox’ involved in the proposition enunciated by Brennan J in Mabo: if it is the reversion which carries with it beneficial title, why is that title not there in the first place? And if it is the existence of that beneficial title which extinguishes native title rights, why were those rights not extinguished before the grant of a pastoral lease?134

Toohey J reasoned that if the Crown never possessed the beneficial title, a fortiori, there could be no reversion of such title to it. Accordingly, the ‘reversion’ was not a reversion of the kind normally associated with leases. ‘Reversion’ was, therefore, distinguished from its traditional common law meaning135 and held to connote the resumption of the character of ‘Crown Land’.136 Toohey J reconciled the two limbs of radical title by emphasising that such a result in no way detracted from the doctrine of sovereignty as the Crown could, upon determination of the lease, deal with the land as authorised by statute.137 In the context of the rele­ vant statutes, he observed that ‘once a pastoral lease came to an end, the land answered the description of “Crown Land” and might be dealt with accordingly’.138 Thus, on the expiration or other termination of a pastoral lease, it is still the radical title of the Crown that must be considered in relation to native title rights.139 According to this analysis, the meaning of ‘Crown Land’ in the relevant statutes is merely land which the Crown has radical title to, as opposed to beneficial ownership of. Although Toohey J’s decision was made in the context of a statutory lease not given its content by the common law, because his analysis is based on the initial nature of the   ibid 129.   ibid 128 quoting BA Helmore and GW Millard, The Law of Real Property in New South Wales, 2nd edn (Sydney, Law Book Co, 1966) 227. 131   Wik (n 6) 128. 132  ibid. 133   ibid 129. 134  ibid. 135   ibid 128. 136   ibid 128–29. See also Eckford v Stanbroke Pastoral Co Pty Ltd [2012] QSC 48, [2012] 2 Qd R 324 [21]. 137   Wik (n 6) 128. 138   ibid 128–29. 139   ibid 129. 129 130

168  Radical Title Post-Mabo Crown’s title (that is, its radical title) rather than the nature of the interest granted, there is no reason why it would not apply to any lease granted pursuant to statute, including a common law lease. Indeed, this aspect of Toohey J’s reasoning represents the main point of departure from Gaudron J’s judgment. Although approaching the issue from a different perspective, Gaudron J adopted a view of radical title similar to Toohey J’s. Unlike Toohey J, however, Gaudron J did not address the common law position; her Honour referred specifically to provisions of the Land Act 1910 (Qld) (1910 Act).140 In particular, the statutory reversion prescribed by section 135 of the 1910 Act was interpreted to mean that the previously alienated land became once more ‘Crown Land’, which Gaudron J defined as ‘land in respect of which the Crown had radical title, and not land in respect of which [the Crown] had beneficial ownership’.141 Accordingly, Gaudron J also suggested that both prior to alienation of any land in Australia and upon early determination of a pastoral lease, the Crown has only a radical title to the land without any beneficial interest. While Gaudron J reached the same conclusion on the facts as Toohey J, the under­ lying rationale of her decision was based not on the nature of the Crown’s radical title but on the character of the particular grant. That is, because the relevant pastoral leases were not true leases in the traditional common law sense of conferring a right of exclusive possession, they did not operate to vest a leasehold estate.142 Consequently, since a reversionary interest only arises on the vesting of a leasehold estate, there was no basis for the contention that, on the grant of the leases, the Crown acquired a reversionary interest which operated to expand its radical title to full beneficial ownership.143 Thus, Gaudron J denied the applicability of the concept of a common law reversion to interests created by statute where those interests are not given their content by the common law. Instead, she found that the statutory reversion which applied in such cases entitled the Crown to radical title only, and not to any beneficial interest in the land.144 Nevertheless, according to Gaudron J’s analysis, although all land in Queensland, and indeed in Australia, is regulated by statute so that all interests in land are granted by the Crown pursuant to legislation, where the interest granted is equivalent to an interest recognised by the common law, the common law doctrine of reversion may apply. This is because although Gaudron J distinguished between common law and statutory reversions, her concept of a statutory reversion only connotes something different from a common law reversion where the particular interest granted is not given its content by the common law. Thus, unlike Toohey J, Gaudron J did not distinguish between a traditional common law reversion and a reversion in the context of the Crown’s mere radical title (whether statutory or common law). Indeed, it has been seen that it is because Toohey J made this distinction that his analysis is relevant to any interest granted by the Crown where the Crown has a mere radical title immediately before the grant. Nevertheless, both Toohey and Gaudron JJ held that although a reversion was created, it did not confer full beneficial ownership. In this way, they distinguished a statutory reversion from the traditional common law meaning of reversion. The crucial   For the current incarnation of this Act see ch 6 n 230.   Wik (n 6) 156. 142   ibid 155. 143  ibid. 144   ibid. This analysis bears a very close resemblance to an argument advanced by Lee J in North Ganalanja Aboriginal Corp (n 91) esp 29. 140 141



‘Reversion Expectant’ Argument 169

point is that, while their reasoning differed, both justices held that a reversion was created by the grant of the relevant pastoral leases. This is in stark contrast to Gummow and Kirby JJ who held that no reversion was created at all in the context of statutory grants. It will be seen that although the rationale underlying their Honours’ approach is based exclusively on the concomitant of sovereignty limb of radical title, there is an important difference between their judgments: while the rationale is expressly stated in Gummow J’s judgment, it is only implied in Kirby J’s. Gummow J’s conclusion on the meaning and content of radical title is similar to that expressed by both Toohey and Gaudron JJ. In particular, he adopted Brennan J’s common law interpretation of radical title as a ‘bare nominal title’ only and not as an underlying estate conferring beneficial ownership except to the extent of the rights attaching to native title. For Gummow J, radical title is ‘“a postulate to support the exercise of sovereign power within the familiar feudal framework of the common law” . . . [including] the doctrine of tenures’.145 Upon this analysis, ‘[a]bsolute and beneficial Crown ownership, a plenum dominium, [is] established not by the acquisition of radical title but by subsequent exercise of the authority of the Crown’.146 For Gummow J, however, the contention that the grant of a lease by the Crown necessarily involved the acquisition by the Crown of the ‘reversion which is expectant upon the expiry of the term’ broke down when applied to the statutory scheme for the disposition of Crown lands established by the 1910 Act. He noted that the phrase ‘[a]ll land in Queensland’ in section 4 of the 1910 Act was apt to include land in respect of which the Crown held radical title, and that by the two limbs of radical title, ‘the common law enabled the Crown to grant interests in land to be held of the Crown and to become absolute beneficial owner of unalienated land required for the purposes of the Crown’.147 However, since all powers of alienation of interests in land in Australia are now governed by statute, the state had to justify its argument based on Brennan J’s reversion expectant dictum by its adaptation to the statutory system for the disposition of land. Thus, it was in the context of the statutory scheme for the alienation of land that the postulate of the doctrine of tenure limb of radical title was, for Gummow J, rendered otiose. The statute maintained a legal regime where, in respect of what it identified as leases, there was no need for the creation in the Crown of a reversionary estate out of which lesser estates might then be granted.148 Rather, when the lease expired, the land again answered the definition of ‘Crown Land’149 and was liable to be further dealt with by the Crown.150 Gummow J also referred to the statutory provisions which abrogated the common law requirement of entry for the creation of a reversion.151 Not only did the statute operate effectively to vest interests granted under it in advance of and without dependence upon entry,152 it also provided that, in the case of forfeiture or other premature determination of a lease, the land would revert to the Crown and become Crown land.153 For Gummow J, the fact that the statute proceeded on a basis which was at odds   Wik (n 6) 186.  ibid. 147   ibid 188. 148   ibid 189. 149   1910 Act, s 4. 150   1910 Act, s 6: see Wik (n 6) 189. 151   1910 Act, ss 6(2), 135: see Wik (n 6) 189, 198, 199. 152   1910 Act, s 6(2). 153   1910 Act, s 135: see Wik (n 6) 199 (Gummow J). 145 146

170  Radical Title Post-Mabo with the common law principles with respect to leases confirmed the conclusion that the term ‘revert’ in the statute was used to denote the ‘reassumption of the character of “Crown Land” liable to further disposition’.154 It is important to note that while both Gaudron and Gummow JJ rejected the notion that the interest acquired by the Crown at the expiration of the term of the pastoral leases conferred beneficial ownership and was thus inconsistent with native title, it is clear from Gaudron J’s judgment in Mabo155 and Gummow J’s judgment in Yanner v Eaton156 that their Honours both regard the grant of a common law lease as effecting the extinguishment of native title. Nevertheless, it will be seen that while the grant of a common law lease may extinguish native title on the ground that the rights created by grant are inconsistent with native title rights, this does not have any significance for the Crown’s title; it does not mean that any residuary rights to the land in respect of which the lease was granted automatically lie with the Crown.157 Although not expressly referring to the concomitant of sovereignty limb of radical title, Kirby J’s treatment of the ‘reversion expectant’ theory is consistent with Gummow J’s. Referring to the critical passage in Brennan J’s reasoning in Mabo, Kirby J observed that Brennan J implied that it was not the grant of the lease which had the effect of expanding the Crown’s title ‘from mere radical title’ to a plenum dominium, but the acquisition of the reversion expectant on the expiry of the leasehold term.158 Kirby J explained, however, that the grant of leases is regulated by the Land Acts159 and that these Acts do not expressly confer on the Crown the estate necessary to grant a lease.160 The historical reason for this was clear: the enactments were based upon the assumption that the Crown exclusively enjoyed the power to grant leasehold and other interests simply as an attribute of its sovereignty. Since Mabo, however, it was clear that with sovereignty came no more than radical title which was burdened with native title.161 Consequently, Kirby J was of the view that to invent the notion, not sustained by the actual language of the Land Acts, that the power conferred on the Crown to grant a pastoral leasehold interest was an indirect way of conferring on the Crown ‘ownership’ of the land by means of the reversion expectant [involved] a highly artificial importation of feudal notions into Australian legislation.162

According to Kirby J, therefore, rather than inventing such a purpose by a new legal fiction, and retrospectively attributing it to the Queensland Parliament so that it could be read into the Land Acts in order to afford the estate out of which the Crown might grant a pastoral lease, the fact that the Parliament had said that the Crown’s power to make such a grant existed was sufficient.163 Kirby J was of the view that to import into the Land Acts notions of the common law apt for the tenurial holdings under the Crown   Wik (n 6) 189.   Mabo (n 1) 110. 156   Yanner v Eaton [1999] HCA 53, (1999) 201 CLR 351 [108]. 157   See below text to nn 249–53. See also Secher, ‘The Legal Nature of the Crown’s Title – Part 1’ (n 86); Secher, ‘The Legal Nature of the Crown’s Title – Part 2’ (n 86). 158   Wik (n 6) 235. 159   ibid 244. 160  ibid. 161  ibid. 162   ibid. See also Eckford (n 136) [21] where Dalton J distinguished the Crown’s radical title at the time of the grant of a pastoral lease from ‘feudal title’. 163   Wik (n 6) 244–45. 154 155



‘Reversion Expectant’ Argument 171

and attribute them to the Crown itself ‘piles fiction upon fiction’ and, unless expressed in the legislation, should not be introduced.164 Thus, like the other members of the majority, Kirby J equated Crown land under the Land Acts with mere radical title; a bare legal title rather than a full beneficial interest except to the extent of native title. b  Minority Judgment: Brennan CJ (Dawson and McHugh JJ concurring)165 Notwithstanding the different rationales adopted by the members of the majority, they all rejected the reversion expectant argument. The minority, on the other hand, unequivocally embraced it. Indeed, Brennan CJ’s reasoning, as author of the minority judgment, is logically consistent with his dictum in Mabo concerning the Crown’s ‘reversion expectant’ on a lease granted by the Crown. It has been seen, however, that following Mabo it was not clear whether Brennan J regarded radical title as merely a ‘bare title’ sufficient to support the doctrine of tenure and the Crown’s acquisition of a plenary title, or as conferring rights of beneficial ownership except to the extent of native title.166 In his endeavours to sustain the reversion expectant theory in Wik, Brennan CJ suggested that the view that radical title is essentially ‘a power of alienation controlled by statute’167 cannot be accepted.168 His comments were, however, confined to an examination of land that had been brought within the doctrine of tenure ad veritatem.169 In particular, his comments related to the creation of a leasehold tenure. Accordingly, not only is his judgment irrelevant to the question of the meaning and content of radical title in respect of land which has not been brought within the doctrine of tenure ad veritatem, since it represents the minority view in Wik it is not authoritative in the context of land which has been brought within the doctrine of tenure as a result of the grant of a pastoral lease by the Crown.170 Nevertheless, Brennan CJ made some general observations on the fundamental doctrine of tenure. He asserted that by exercise of a statutory power to alienate an estate in land, the Crown creates a tenure between the Crown and the alienee and brings the land within the regime governed by the doctrines of tenure and estates.171 It followed that: Once land is brought within [the] regime [governed by the doctrines of tenure and estates], it is impossible to admit an interest which is not derived mediately or immediately from a Crown grant or which is not carved out from either an estate or the Crown’s reversionary title.172

Accordingly, the creation of tenure, however limited the estate in the particular parcel of land may be, established exhaustively the entire proprietary legal interests which may be enjoyed in that parcel of land. If the interests alienated by the Crown did not exhaust those interests, the remaining proprietary interest must, therefore, be vested in the   ibid 245.   See also Secher (n 57) 20–24. 166   cf Mabo (n 1) 47–48 and 50–51. See also ch 3 text to n 49. 167   Wik (n 6) 94. 168  ibid. cf ibid 127, 128 (Toohey J) (referred to above text to n 125–28), 156 (Gaudron J) (referred to above text to n 141), 186, 189 (Gummow J) (referred to above text to n 146–50), 244 (Kirby J) (referred to above text to n 163). 169   Wik (n 6) 91. 170   The implications for the Crown’s title on the grant of a common law lease are considered below text to n 214ff. 171   Wik (n 6) 91. 172  ibid. 164 165

172  Radical Title Post-Mabo Crown.173 It has been seen, however, that even under the feudal doctrine of tenure, the Crown was not in fact the proprietor of all land for which no subject could show a title: where a freehold in land became unowned because the tenant pur autre vie died before the cestui que vie, the estate went to the first person to enter as occupant rather than the Crown.174 Nevertheless, Brennan CJ declared that in Australia, ‘the Crown takes either by reversion on expiry of the interest granted or by escheat on failure of persons to take an interest granted’.175 And noting that all powers of alienation of interests in land in Australia are now governed by statute,176 he asserted that by exercise of a statutory power to alienate an estate in land the Crown creates a tenure in the strict common law sense of the term between the Crown and the alienee. It followed that where a leasehold estate is the only proprietary interest granted by the Crown in a parcel of land and the lessee is in possession, a legal reversionary interest is the necessary foundation for the existence of a right to forfeit for breach of condition.177

Then his crucial passage concluded: ‘It is only by treating the Crown, on exercise of the power of alienation of an estate, as having the full legal reversionary interest that the fundamental doctrines of tenure and estates can operate’.178 Brennan CJ also referred to the provisions of the 1910 Act179 in order to support the Crown’s acquisition of a beneficial title on reversion. He explained that at the time of the Act’s enactment, the common understanding was that Crown grants were made out of the Crown’s proprietary title to all land in the colony.180 No recognition was accorded by Australian courts to the existence of native title in or over land in Australia.181 Consequently, the provisions of the Act did not admit of any interest in land subject to a pastoral lease being held by any person other than the Crown, the lessee and persons taking an interest under the lease.182 It was, therefore, impossible that the Parliament might have intended that any person other than the Crown should have any reversionary interest in such land.183 Although dealing with a statute, Brennan CJ was of the view that the Act treated the Crown as having not only the power to grant a lease, but as having the full beneficial reversionary interest which, under the feudal doctrines of the common law, a lessor had to possess in order to support and enforce the relationship of landlord and tenant.184

  ibid 90–91.   See ch 1 text to n 160ff. Although an ordinary reversioner would have to enter to merge the pur autre vie estate with his own, there was an exception where the Crown was the reversioner: see the authorities cited by McNeil (n 71) 12 fn 20, see also 80 fn 4. 175   Wik (n 6) 91. 176  ibid. 177  ibid. 178   ibid 93. 179   Pursuant to which pastoral leases had been granted by the Crown in 1915 and 1919. Corresponding provisions appeared in the Land Act 1962 (Qld). 180   Wik (n 6) 92. 181  ibid. 182  ibid. 183  ibid. 184   ibid 93. 173 174



‘Reversion Expectant’ Argument 173 c Summary

Three distinct approaches vis-a-vis the role and content of a reversion in the context of statutory grants emerge from the majority judgments in Wik: one from Toohey J, one from Gaudron J, and one from Gummow and Kirby JJ. These approaches correspond with the underlying rationales adopted by these judges. Furthermore, the rationales underlying the judges’ decisions reflect their views on the role of the doctrine of tenure ad veritatem in the context of statutory grants. By combining arguments based upon the two limbs of radical title, Toohey J accepted that the redefined doctrine of tenure applies in the context of statutory grants. However, although a reversion is implied as a result of the fiction of original Crown ownership, such reversion does not confer full beneficial ownership. In contrast, by focusing exclusively on the concomitant of sovereignty limb of radical title, both Kirby and Gummow JJ denied that the redefined doctrine of tenure has any role in the context of statutory grants. That is, the fiction of original Crown ownership is not invoked to supply a reversionary interest. Significantly, not only does Kirby and Gummow JJ’s approach represent a majority of the majority in Wik, but Gummow J is the only member of the Wik High Court who was still a member of the High Court as constituted last year. Although Gaudron J also rejected a narrow approach based upon the application of the doctrine of tenure on the facts of Wik, she nevertheless suggested that the doctrine of tenure might apply to confer beneficial ownership in respect of interests created by statute where those interests are given their content by the common law. Significantly, unlike the other members of the majority, the rationale underlying Gaudron J’s decision was not based on either or both limbs of radical title. Indeed, instead of focusing on the nature of the Crown’s title, it was based upon the nature of the interest granted. For the minority, it was only by treating the Crown, on exercise of the power of alienation of an estate (statutory or otherwise), as having the full legal reversionary interest that the fundamental doctrines of tenure and estates could operate.185 This is significant because it indicates not only the point of divergence between Brennan CJ’s decision (representing the minority) and Gummow J and Kirby J’s decisions as well as Gaudron J’s decision on the facts, but also the point of possible reconciliation between his decision and both Toohey J’s decision and Gaudron J’s suggestion that the doctrine of tenure might apply in some circumstances in the context of statutory grants. By focusing on the creation of tenure by exercise of a power to alienate an estate in land, Brennan CJ’s explanation, like that of the majority, accepted that the doctrine of tenure ad veritatem only applies to every Crown grant of an interest in land. As a corollary, the fiction associated with the doctrine of tenure also only applies to every Crown grant of an interest in land. It would appear, therefore, that all the members of the Wik High Court agree that, at common law, where a leasehold estate is the only proprietary interest granted by the Crown in a parcel of land, a legal reversionary interest would be vested in the Crown in order to support and enforce the relationship of landlord and tenant.186 Where the Crown does not have an actual title to the relevant land, such reversionary interest will be supplied by virtue of the application of the fiction of original Crown ownership in respect of the particular Crown grant.  ibid.   ibid 91, 93.

185 186

174  Radical Title Post-Mabo Although this would be the effect of investiture of radical title at common law,187 Gummow J and Kirby J considered that such a fictional reversionary interest was unnecessary in the case of a statutory alienation; that is, the fiction of original ownership is otiose in the context of statutory grants. Gaudron J’s decision on the facts of Wik also rejected a common law reversionary interest. This aspect of Gaudron J’s decision and the position taken by Gummow J and Kirby J is, therefore, the very antithesis of Brennan CJ’s decision. On the other hand, Gaudron J’s suggestion that the common law doctrine of reversion might apply in respect of interests created by statute where those interests are given their content by the common law, and Toohey J’s treatment of the doctrine of tenure in the context of statutory grants, are not too dissimilar to Brennan CJ’s analysis: for all three judges, a reversion was created. Nevertheless, Brennan CJ’s analysis departs from that of Toohey J by attributing to the Crown a reversionary interest which conferred full beneficial ownership. In this way, it appears that Brennan CJ’s decision aligns most closely with Gaudron J’s obiter. However, apart from disagreeing with Gaudron J’s decision on the facts, Brennan CJ’s decision also departs from Gaudron J’s by focusing on the expansion of the Crown’s interest rather than the interest granted. Indeed, by transposing the doctrine of tenure into the law relating to statutory grants, the rationale underlying Brennan CJ’s decision is analogous to that underlying Toohey J’s decision. Unlike Toohey J, however, Brennan CJ failed to distinguish between the effect of the fiction of original Crown ownership under the feudal and Australian doctrines of tenure. Thus, ‘the “received idea of feudalism” continues to exert the force of law, in abstracto, over Brennan CJ’s judgment’.188 Indeed, while the majority rejected a narrow approach based upon the feudal notion that the grant by the Crown of an interest in land based upon its radical title is depend­ ent upon, and can flow from nothing less than, absolute beneficial ownership by the Crown, the minority accepted (or at least appeared to accept) such an approach.189 Although the four members of the majority in Wik adopted three distinct approaches when examining Brennan J’s ‘reversion expectant’ dictum, they were essentially of the view that either the fiction of original Crown ownership did not apply in the context of statutory grants or, if it did, it conferred no more than a nominal proprietary interest sufficient to support the lease. Furthermore, despite Gaudron J’s suggestion that a statutory reversion can, in some circumstances, have the traditional common law meaning, it is clear that the majority were of the view that the Crown’s undoubted power of alienation of land is not dependent upon beneficial ownership of the land. Thus, for the majority, the grant of a pastoral lease was no more than an exercise of statutory power conferring statutory rights, having no significance for the Crown’s beneficial interest in the land granted.190 Although the majority’s decision emphasised the statutory nature of the relevant pastoral leases, at least two members of the majority (Toohey and Gummow JJ) were of the view that a similar result would be achieved by reference to the common law.191 Indeed,   See above text to nn 97–101.   Bhuta (n 2) 35. 189   Such an approach is, of course, one of the possible consequences of Gaudron J’s suggestion that the doctrine of tenure might apply to confer beneficial ownership in respect of interests created by statute where those interests are given their content by the common law. 190   See also Eckford (n 136) [21]. 191   See above text to nn 126, 146 respectively. Kirby J is also, arguably, of this view: see above text to n 164. cf Eckford (n 136) [21] but note Dalton J’s observations at [35]. 187 188



‘Reversion Expectant’ Argument 175

since they regarded radical title as not, of itself, carrying beneficial ownership, the analysis based upon general common law principles of the High Court’s identification of the two limbs of radical title is apposite: post-Mabo, the meaning of reversion in the context of a leasehold estate granted out of land in respect of which the Crown has a mere radical title means the resumption of mere radical title.192 For the minority, however, the application of the doctrine of tenure in the context of an exercise of the statutory, or common law, power of alienation of a pastoral leasehold estate meant that the fiction of original Crown ownership not only supplied a reversionary interest but also conferred beneficial ownership. Although Brennan CJ’s decision and Gaudron J’s obiter appear to support the orthodox understanding of the notion of radical title as declared by the Privy Council – that the Crown’s ownership of all land subject to the burden of native title vested upon settlement – rather than the alternative interpretation suggested in chapter two,193 it is by no means so clear. There is an import­ ant objection to their approach: they misconstrue the effect, at common law, of the doctrine of tenure ad veritatem and its associated fiction of original Crown ownership. While the Crown’s fictional reversionary interest (supplied by the fiction of original Crown ownership) was deemed to confer beneficial title under the feudal doctrine of tenure, under the doctrine of tenure ad veritatem, such ‘fictional’ reversionary interest (although still supplied by the fiction of original Crown ownership) only supplies a nominal proprietary interest to support the lease granted for the duration of its term.194 It is because the minority’s decision and Gaudron J’s obiter treat the Crown’s ‘fictional’ reversionary interest as continuing despite the expiration of the lease that their reasoning coheres with the traditional meaning given to ‘reversion’.195 Thus, it is suggested that both judges adhere to the interpretation of radical title as a bare legal title sufficient to support the doctrine of tenure and the Crown’s acquisition of a plenary title; the conclusion that, on the grant of a leasehold estate based on the Crown’s radical title, the Crown acquires a traditional common law reversionary interest, is simply the result of applying the fiction associated with the doctrine of tenure beyond its purpose. Indeed, it will be seen in the next section that the legal nature of the Crown’s reversion on the grant of a perpetual lease supports this interpretation. ii  Leases in Perpetuity196 Many statutory Crown leases in Australia are granted in perpetuity. Although a lease differs from a fee simple interest at common law by being for a limited term of years, the existence of any difference between a fee simple and a perpetual lease was questioned by Roper J in Nolan v Willimbong Shire Council.197 The majority of the High Court in Wilson v Anderson,198 however, observed that it was unnecessary to pursue the question whether, by the grant of a perpetual lease, there was created and vested an estate in fee   See above text to n 90ff.   See ch 2. See also U Secher, ‘The Meaning of Radical Title: The Pre-Mabo Authorities Explained – Part 1’ (2005) 11 Australian Property Law Journal 179. 194   See above text to nn 99–101, para immediately before n 112. 195  See Re Mercer v Moore (1880) 14 Ch D 287, esp 295. See also Re Strathblaine Estates Ltd [1948] Ch 228 (Ch D) 231 (Jenkins J). 196   See also Secher, ‘The Legal Nature of the Crown’s Title – Part 2’ (n 86) 62ff. 197   Nolan v Willimbong Shire Council (1939) 14 LGR (NSW) 89 (NSW Land and Valuation Ct). 198   Wilson (n 120) [93], [94] (Gaudron, Gummow and Hayne JJ). 192 193

176  Radical Title Post-Mabo simple. Nevertheless, pre-Wilson, the High Court had made it clear that there are fundamental differences between a freehold and a perpetual leasehold interest.199 For example, in Hawkins v Minister for Lands (NSW)200 the High Court had to determine whether land held pursuant to a perpetual Crown lease was classified as Crown land for the purpose of the Crown Lands Consolidation Act 1913 (NSW). According to the statutory definition of Crown land, land held in fee simple was not so classified. The Court distinguished freehold land from land held pursuant to a perpetual lease. Dixon J observed: Because it is a Crown lease in perpetuity, the land, it is claimed, is no longer vested in His Majesty within the meaning of the definition. No doubt the reversionary interest in the Crown is slight and it may be said to be technical. But a rent is reserved, there are special conditions, the interest is capable of surrender and, for non-payment of survey fees, of forfeiture.201

This observation was, of course, made on the pre-Mabo assumption that ‘Crown land’ meant land belonging to the Crown. It has been seen, however, that the High Court in Wik made it clear that the term ‘Crown land’ in the Queensland Land Acts is synonymous with ‘radical title’.202 Crucially, Dixon J’s comment to the effect that the Crown’s ‘reversionary interest’ is merely ‘technical’ suggests that a full beneficial reversionary interest was not created as a result of the grant of a perpetual lease. Indeed, Callinan J, as a member of the majority in Wilson (but providing separate reasons),203 referred with approval to Dixon J’s description of the reversionary interest in the Crown in relation to a lease in perpetuity as ‘slight’ and ‘technical’. He also noted that ‘the fact that there is no apparent right of reversion is a concept foreign to a common law lease’.204 In this context, although the joint majority of the Wilson High Court accepted the Privy Council’s approval, in Abhiram Goswami v Shyama Charan Nandi,205 of the judgment of Jenkins J’s in Kally Dass Ahiri v Monmohini Dassee,206 they did not expand on the matter. The decision in Ahiri was that, ‘on the true construction of the legislation, even in respect of a lease in perpetuity, there was an interest still remaining in the lessor dependent, for example, upon the forfeiture of the lease’.207 Thus, while the majority of the Wilson High Court recognised that there was a reversion dependent upon the expiration of the lease, they did not clarify whether or not such reversion embraced the traditional meaning of reversion.208 The majority of the High Court’s approach in Wik, therefore, continues to be authoritative on this issue. Moreover, since the majority of the Wilson High Court considered that it was the grant of exclusive possession inconsistent with all native title which extinguished the native title, there was no question of the Crown assuming beneficial ownership of the land on the making of the grant. That is, application of the inconsistency of incidents test209 meant that the 199   Fisher v Deputy Federal Commissioner of Land Tax (NSW) (1915) 20 CLR 242 (HCA) 248; Hawkins v Minister for Lands (NSW) (1949) 78 CLR 479 (HCA). 200   Hawkins v Minister for Lands (NSW) (1949) 78 CLR 479 (HCA). 201   ibid 492. 202   Above text to n 136ff. See also ch 6 text to n 195ff. 203  McHugh J concurring. Gaudron, Gummow and Hayne JJ delivered a joint majority judgment and Gleeson CJ provided separate reasons essentially agreeing with the joint judgment. 204   Wilson (n 120) [204]. 205   Abhiram Goswami v Shyama Charan Nandi (1909) LR 36 Ind App 148 (PC) 167. 206   Kally Dass Ahiri v Monmohini Dassee (1897) 12 Indian Decisions (NS) 961 (HC Cal). 207   Wilson (n 120) [94] (Gaudron, Gummow and Hayne JJ). See also ibid [204] (Callinan J). 208   ibid [47] (Gaudron, Gummow and Hayne JJ). 209   See below text to n 235ff.



‘Reversion Expectant’ Argument 177

nature of the Crown’s reversion was not addressed. Nevertheless, the important point for present purposes is that, in conformity with the decision in Wik, the Wilson Court did not suggest that any native title might be extinguished upon the Crown acquiring a beneficial reversionary interest. A similar conclusion follows from the Full Federal Court’s decision in Anderson v Wilson:210 the statutory grant of a leasehold interest which confers rights which, although permanent or for an indefinite period, are less than exclusive possession, will not necessarily be inconsistent with all species of native title which might exist over the leased land, yet may be sufficiently inconsistent with some native title rights which might exist over the leased land so that partial extinguishment occurs. Since the Court did not suggest that all native title rights might otherwise be extinguished, it follows that it did not regard the Crown as acquiring a full beneficial interest (reversion or otherwise) in the land at the time of making the grant. Indeed, although the Wilson High Court addressed the statutory position, all members of the Full Federal Court applied the common law test of extinguishment as exemplified in Wik.211 By denying the Crown a full beneficial reversionary interest in the context of a perpetual lease, the treatment of the matter by Dixon J in Hawkins, Callinan J in Wilson, the majority of the Full Federal Court in Anderson v Wilson (explicitly) and the joint majority in Wilson (implicitly) not only accords with the treatment of the reversion expectant argument by the majority of the Wik High Court but also with the proposition that, because radical title is a bare legal title sufficient merely to support the doctrine of tenure and the Crown’s right to acquire and confer title, on exercise of the power to grant tenure in land, the Crown’s radical title is a mere right to acquire or confer title when the grant determines.212 The Crown does not automatically acquire property rights to currently unalienated land. Because there has not been any binding High Court decision on the implications for the Crown’s title of the grant of a common law lease,213 the rationales underlying the majority judges’ decisions in Wik are crucial. Although the High Court was dealing with the statutory grant of an interest not given its content by the common law, it will be seen in the next section that these rationales indicate how the justices might resolve the question of beneficial ownership of any currently unalienated land, including land previously subject to a true common law lease. 210   Anderson v Wilson [2000] FCA 394, (2000) 97 FCR 453 (FCAFC). This case is discussed in Secher, ‘The Legal Nature of the Crown’s Title – Part 2’ (n 86) 57ff. 211   Wilson (n 120) [47] (Gaudron, Gummow and Hayne JJ); Anderson v Wilson (n 210) [25] (Black CJ and Sackville J), [240], [244], [269], [270], [274], [275] (Beaumont J). Accordingly, any inferences drawn from the Full Federal Court’s decision relating to the Crown’s title have more precedential value than the High Court’s treatment of this issue. 212   For the common law position see above text to nn 91–120; for the statutory position see below text in paras immediately following n 216 esp para following n 221. 213   Although the majority of the High Court in Ward (n 8) [369]–[372] held that a common law lease extinguished native title, this was based upon the Court’s application of the inconsistency of incidents test for the purposes of the NTA, rather than upon an expansion of the Crown’s radical title at common law. Thus, the question of the nature of the Crown’s reversion, if any, was not addressed: see below text to n 243ff; Secher, ‘The Legal Nature of the Crown’s Title – Part 2’ (n 86) text to nn 57–61, 136–48. Furthermore, in Fejo (n 20) although reference was made in argument to the reversion expectant theory, this theory was not addressed by the Court as the question in that case concerned an earlier grant in fee simple, not the later lease of the land. Thus, the High Court did not have to consider whether the Crown’s title became a plenum dominium upon the lease coming to an end: ‘there is no question of the Crown becoming entitled to both ownership and possession of the land upon the lease coming to an end. . . . The questions about leasehold interests that were considered in [Wik] do not arise’: ibid [55] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

178  Radical Title Post-Mabo iii  Implications for the Legal Nature of the Crown’s Title on the Statutory Grant of a Common Law Lease: Underlying Rationales in Wik It has been seen that although the Crown’s radical title supported the Crown’s sovereign powers at common law to grant interests in land and to appropriate unalienated land for public purposes, the source of the power to deal with interests in land is now to be found exclusively in statute.214 While the Crown’s radical title may, therefore, no longer be central to its powers to grant rights and interests in land,215 the question is whether it remains central to determining the nature of the Crown’s rights to certain land. That is, where the Crown has a mere radical title to land immediately prior to the grant of a common law lease, what is the nature of the interest, if any, that the Crown acquires upon the expiration of the term of the lease? The implications, beyond those on the statutory grant of a lease, of the enactment of Crown lands legislation in Australia for the legal nature of the Crown’s title to land will be considered in chapter six.216 According to Gummow J and Kirby J’s decisions in Wik, which represent the majority of the majority, no reversion was created in the context of the statutory grant of a pastoral lease. Since the rationale underlying their approaches was based exclusively on the concomitant of sovereignty limb of radical title, they denied that the doctrine of tenure ad veritatem had any role in the context of statutory grants. Thus, the fiction of original Crown ownership did not apply to supply a reversionary interest in the case of the statutory grant of a lease; indeed, the fiction was rendered otiose in the context of any statutory alienation.217 For Gummow and Kirby JJ, therefore, there is no question of a reversion (beneficial or otherwise) on the statutory grant of a common law lease. Toohey J and Gaudron J, as the other members of the majority, held that although a reversion was created, it did not confer full beneficial ownership. Since Toohey J combined aspects of both the postulate of the doctrine of tenure and concomitant of sovereignty limbs of radical title, he accepted that the doctrine of tenure ad veritatem applies in the context of statutory grants. However, while the fiction of original Crown ownership applies to supply a reversion on the grant of a common law lease, the Crown acquires no more than a nominal proprietary interest sufficient to support the lease.218 Gaudron J’s decision was not based upon either limb of radical title. Rather than focusing on the nature of the Crown’s title, her decision focused on the nature of the particular interest granted. Accordingly, although she rejected a narrow approach based upon the application of the doctrine of tenure on the facts of Wik, she suggested that the doctrine of tenure might not only apply but that it would confer beneficial ownership in respect of interests created by statute where those interests are given their content by the common law. For Gaudron J, therefore, the statutory grant of a common law lease confers a full beneficial reversionary interest.219 The minority in Wik followed the reversion expectant theory to its logical conclusion in respect of pastoral leases.220 Accordingly, they based their decision exclusively on the 214   The provisions in the various State and Territory Crown Lands Acts take away the prerogative right of the Crown to grant land: Attorney-General v Cochrane (1970) 91 WN (NSW) 861 (NSWCA) 865 (Jacobs JA). 215   See, eg, Wik (n 6) 189 (Gummow J). 216   See ch 6 text to n 195ff. 217   Above text to nn 148–57, 161–64. 218   Above text to nn 124–39. 219   Above text to nn 142–44. 220   Above text to nn 165–84.



‘Reversion Expectant’ Argument 179

postulate of the doctrine of tenure limb of radical title. They concluded that the application of the Australian doctrine of tenure in the context of an exercise of the statutory power of alienation of a pastoral leasehold estate meant that the fiction of original Crown ownership not only supplied a reversionary interest but also conferred beneficial ownership on the Crown; a fortiori, the statutory grant of a common law lease. Although the approaches adopted by the minority and two members of the majority (Toohey J and Gaudron J) suggest that a reversion is created in the context of the statutory grant of a common law lease, the content of such reversion is not clear. By attributing to the Crown a full beneficial reversion, however, both the minority’s and Gaudron J’s approach fail to distinguish between the role of the fiction of original Crown ownership in the context of the feudal doctrine of tenure and in the context of the doctrine of tenure ad veritatem: they apply the fiction of original Crown ownership to an unintended end. On the other hand, by attributing to the Crown a nominal proprietary interest, Toohey J’s approach is consistent with the effect of the fiction of original Crown ownership under the doctrine of tenure ad veritatem. Thus, in the event that the grant by the Crown of a common law lease does create a reversionary interest in the Crown, it is suggested that Toohey J’s approach would prevail: the reversion would confer a nominal proprietary title sufficient to support the lease, rather than beneficial ownership. The reason for this is two-fold: first, by combining aspects of both limbs of radical title, the rationale underlying Toohey J’s judgment is principled, can be applied consistently and, although dealing with the statutory power of alienation, effectively achieves the same result that would be achieved at common law.221 Secondly, although Toohey J acknowledged that the fiction of original Crown ownership applies, he distinguished its role under the Australian and feudal doctrines of tenure. In any event, by rejecting a narrow approach based upon the application of the feudal doctrine of tenure to Crown leases granted under legislation (that is, either the fiction of original Crown ownership simply does not apply in the case of a statutory alienation as no reversionary interest is required or, although the fiction applies, it does not confer beneficial ownership), the majority’s reasoning reaffirms the limited role of feudal concepts of tenure to statutory interests. On the basis of the majority’s decision, therefore, in the case of the statutory grant of a common law lease, the Crown would have no reversionary interest or at least no reversionary interest as that concept is understood at common law.222 Indeed, it will be seen in the next section that this proposition is supported by the common law doctrine of extinguishment by Crown grant (embraced by both Brennan CJ and the majority in Wik). Moreover, the doctrine of extinguishment by Crown grant is inconsistent with the view that the fiction of original Crown ownership applies whenever the Crown grants any interest in land relying upon its radical title such that the Crown acquires beneficial ownership of the land. It will also be seen that subsequent High Court authority confirms this conclusion. There is a distinction between the   See above text to nn 91–120.   See also AJ Bradbrook, SV MacCallum and AP Moore, Australian Real Property Law, 4th edn (Sydney, Lawbook Co, 2007) 41–42 fn 39 citing U Secher, ‘A Common Law Doctrine of Suspension of Native Title? Judicial Interpretations of the “Reversion Expectant Argument” and the Concept of “Operational Inconsistency” – Part 1’ (2005) 12 Australian Property Law Journal 1 and U Secher, ‘A Common Law Doctrine of Suspension of Native Title? Judicial Interpretations of the “Reversion Expectant Argument” and the Concept of “Operational Inconsistency” – Part 2’ (2005) 12 Australian Property Law Journal 26. See also Secher, ‘The Legal Nature of the Crown’s Title – Part 2’ (n 86) 34–39. 221 222

180  Radical Title Post-Mabo effect on native title of a real title and the effect on native title of the Crown’s fictional title. III  EXTINGUISHMENT OF NATIVE TITLE BY CROWN GRANT223

A  Brennan CJ: Author of Minority Judgment in Wik The conclusion that the Crown acquired a beneficial reversion was one reason which led the minority in Wik to reject the argument that native title rights and interests had been suspended for the term of the pastoral leases. That is, the holding that a legal reversionary interest must be vested in the Crown was reached in the context of examining the question whether the issuing of the relevant pastoral leases extinguished native title permanently or merely suspended it for the duration of the leases.224 And Brennan CJ had already held that the grant of the leases extinguished the native title: since they conferred a right of exclusive possession on the lessees which was inconsistent with native title, the lessees’ rights prevailed over the rights of the holders of native title.225 In other words, pursuant to the common law doctrine of extinguishment by Crown grant, the grant of the leases had the extinguishing effect on native title; there was no question of suspension. Crucially, however, by focusing on the expansion of the Crown’s title, rather than the interest granted, both Brennan CJ’s reversion expectant dictum and his dictum to the effect that the Crown grant of any estate in land confers full beneficial ownership on the Crown, suggest that the grant of any estate (and in particular any lease) necessarily extinguishes native title, irrespective of whether or not the grant of the interest is otherwise inconsistent with native title.226 This produces an anomaly: if the Crown’s title necessarily expands from radical to beneficial title whenever the Crown exercises the right to grant tenure in land (on the ground that the grant of any interest in land is dependent upon and can flow from nothing less than full beneficial ownership), then native title is necessarily extinguished by the grant of any interest in land and there is no need for an independent test of extinguishment based upon inconsistency between the grantee’s rights and native title rights. While the relevant leases did, in Brennan CJ’s view, confer exclusive possession and were therefore inconsistent with native title, Brennan CJ’s reasoning blurs the distinction between extinguishment of native title because of inconsistent Crown grant (that is, because the grantee’s title is inconsistent with any native title) and extinguishment of native title because of Crown acquisition of beneficial ownership (that is, because the Crown’s radical title has expanded into a plenum dominium). Indeed, although Brennan J’s reversion expectant dictum in Mabo suggests that the Crown acquires a plenum dominium when the term of a lease expires, it has been seen that a reversion is an existing interest, albeit vested in interest, and thus any plenary title would have to exist at the

223   See also Secher, ‘The Legal Nature of the Crown’s Title – Part 1’ (n 86) 25–30; ‘The Legal Nature of the Crown’s Title – Part 2’ (n 86) 37–39. 224   Wik (n 6) 88. 225  ibid. 226   ibid 89, cf 92.



Extinguishment by Crown Grant 181

start of the lease.227 And Brennan CJ’s further comments in Wik, suggesting that the Crown grant of any estate in land confers beneficial ownership on the Crown, treats the Crown as having a full legal reversionary interest on exercise of the power of alienation of an estate. Thus, Brennan CJ’s own analysis regarding the Crown’s title to land upon the grant of any estate (in particular a lease) renders his test for extinguishment by Crown grant obsolete: if the Crown has beneficial ownership from the moment a pastoral lease is granted, any native title rights would necessarily be extinguished and there can be no question of inconsistency between the lessee’s rights and native title rights. Furthermore, although a full beneficial reversion on the grant of a lease under the doctrine of tenure (feudal or ad veritatem) would be supplied by the fiction of original Crown ownership, it would not be a real title. This is crucial: when considering the effect, at common law, of the two limbs of radical title, the question was raised: since the essence of Mabo lies in saying that the Crown’s fictional title cannot preclude the exist­ ence of native title, why could such a fictional title extinguish native title?228 It was submitted that native title is only liable to be extinguished by a real, not fictional, title. Indeed, although the fiction of original Crown ownership does not confer a beneficial title on the Crown, it does allow derivative title to pass to the grantee. In this way, although the rights that a particular estate confers on a Crown grantee may be inconsistent with the continuance of any native title rights and, to the extent of that inconsistency, extinguish the native title rights, the invocation of the fiction of original Crown ownership whenever the Crown grants an interest in land cannot affect native title. Native title is, therefore, extinguished as a result of the operation of the doctrine of estates, not the doctrine of tenure.229 Where the Crown appropriates land to itself, however, the Crown’s acquisition of a beneficial title will have the effect of extinguishing native title; in such a case the beneficial title of the Crown is real, it is not supplied by virtue of the fiction of original Crown ownership. Brennan CJ suggested that if his conclusion, that the grant of a leasehold estate necessarily vests a full beneficial reversionary interest in the Crown, was incorrect, then the underlying or residual common law title (beneficial interest in the land) would presumably subsist in the holders of native title.230 For Brennan CJ, however, such a theory was inconsistent with the fundamental doctrines of the common law and ‘it would equate native title with an estate in fee simple which, ex hypothesi, it is not’.231 While the High Court has made it clear that native title is not a common law title,232 it will be seen in chapters six and seven that different considerations apply to non-Crown derived sources of common law title to land. The important point for present purposes is that, for Brennan CJ, the effect of the reversionary interest was that any native title which had been extinguished by the grant   See above text to n 102ff.   See above text in para following n 95. 229   See above text in para following n 95. 230   Wik (n 6) 89–90. 231   ibid 90. 232   Mabo (n 1) 61 (Brennan J); Fejo (n 20) [46] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ): ‘Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law’. The majority of the Ward High Court has, however, made it clear that ‘native title rights and interests are allodial’: Ward (n 8) [331] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). The concept of allodial title, the only true exception to the feudal doctrine of tenure, is considered further in ch 7. 227 228

182  Radical Title Post-Mabo of a pastoral lease ceased permanently and could not be revived. His Honour did not suggest that any unextinguished native title was extinguished as a result of the reversionary interest. It will be seen under the next heading that, in light of their conclusion on the reversion expectant argument, the Wik majority’s treatment of the doctrine of extinguishment by Crown grant leaves open the possibility that native title might be temporarily suspended, rather than permanently extinguished, as a result of the grant of a lease.233 The crucial point, however, is that, like the minority, all members of the majority in Wik adopted the ‘inconsistency of incidents’ test: a test which, by definition, is inconsistent with the Crown’s acquisition of a beneficial title upon the grant of any interest in land. B  Wik Majority and Ward Although the inconsistency of incidents test requires a comparison to be drawn between the legal nature and incidents of rights granted and rights held under native title, all members of the Wik majority expressed the requisite extent of inconsistency in slightly different terms. For Toohey J, the relevant extent of inconsistency between the rights granted and native title rights was ‘the inability of the two to co-exist’.234 While Gummow J and Kirby J relied on the same English authority,235 the criterion adopted by Gummow J bears the closest resemblance to Toohey J’s: whether there was a physical inconsistency such that the rights cannot coexist?236 Kirby J adopted a criterion suggesting that co-existence must be ‘impossible’.237 Without expanding on the meaning of inconsistency, Gaudron J simply affirmed her view in Mabo (shared by Deane J) that native title rights ‘are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown’.238 For the majority in Wik, therefore, the relevant criterion was the inability or impossibility of co-existence. However, because the trial judge had not made any findings as to the rights making up native title, the majority were unable to determine whether the native title rights and the rights granted under the pastoral leases were inconsistent. Accordingly, they held that native title was not ‘necessarily inconsistent’ with the grant of the pastoral leases.239 Nevertheless, when read in light of their conclusion on the reversion expectant argument, the Wik majority’s treatment of the doctrine of extinguishment by Crown grant leaves open the possibility that native title might be temporarily suspended, rather than permanently extinguished, as a result of the grant of a lease. That is, where the Crown

233   There is considerable judicial support for a common law concept of suspension: see, eg, Ward v Western Australia (1998) 159 ALR 483 (FCA) (Lee J); Western Australia v Ward [2000] FCA 191, (2000) 99 FCR 316 (FCAFC) [750]–[758] (North J); Anderson v Wilson (n 210) where Beaumont J left open the question of suspension in the context of the test of inconsistency; Secher, ‘A Common Law Doctrine of Suspension of Native Title? – Part 1’ (n 222); ‘A Common Law Doctrine of Suspension of Native Title? – Part 2’ (n 222). 234   Wik (n 6) 126 relying on a passage from Macfarlane JA’s judgment in Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 (BCCA) 525. 235   Corporation of Yarmouth v Simmons (1878) 10 Ch D 518, 527 (Fry J). 236   Wik (n 6) 185. 237   ibid 249. 238   ibid 124 referring to Mabo (n 1) 110. 239   Wik (n 6) 133 (postscript contained in Toohey J’s reasons and added with the concurrence of the other majority judges).



Extinguishment by Crown Grant 183

grants a leasehold estate based upon its radical title, although native title may be ‘extinguished’ on the ground of inconsistency with a particular lessee’s rights, since the reversion, if a reversion applies at all, does not confer beneficial ownership on the Crown, the Crown does not automatically assume beneficial ownership of the land when the lease expires. Put another way, although native title in respect of land is necessarily extinguished if the Crown’s radical title to that land is converted into beneficial ownership, it does not automatically follow that the Crown acquires a plenary title to the land if native title is extinguished on the ground of inconsistency with statutory rights.240 Although the majority of the High Court in Ward241 rejected any common law doctrine of suspension, the Court’s treatment of this issue was merely obiter.242 Furthermore, the decision in Ward that a common law lease extinguished, rather than suspended, native title was based solely on the Court’s formulation and application of the inconsist­ ency of incidents test;243 it did not address the issue of the nature of the Crown’s reversion, if any, upon the grant of the lease. Moreover, despite applying the ‘inconsistency of incidents’ test formulated in Wik, the majority in Ward did not refer to the criterion of ‘inability or impossibility of co-existence’.244 Instead, they rejected the premise that there can be ‘degrees of inconsistency of rights, only some of which can be described as “total”, “fundamental” or “absolute”’.245 For the majority, ‘[t]wo rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment’.246 Although expressly adopting a criterion of ‘total’ inconsistency, in line with Gummow J’s dictum in Yanner,247 the majority also embraced a criterion suggesting that extinguishment could be determined by reference to whether the rights granted were ‘necessarily inconsistent’ with the native title rights.248 The ‘criterion to determine extinguishment by inconsistent 240   It is in this context that Toohey J’s comments, in particular, question the generally accepted view that extinguishment connotes a permanent cessation of rights or at least that they are permanently rendered unenforceable. See also above n 233. 241   Above n 8. For comment see articles in R Bartlett (ed) ‘Special Edition: Native Title After Ward’ (2002) 21 Australian Mining & Petroleum Law Journal 205–310. 242   The Court emphasised that extinguishment of native title was governed by the NTA; statute lay at the core of the litigation: Ward (n 8) [1], [2] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). Indeed, the Court distinguished the decisions in Mabo, Wik, Fejo and Yanner as not having been given in respect of applications under the NTA: ibid [25]. Consequently, the only relevance of those decisions was for ‘whatever light they cast on the NTA’: ibid. See also above n 233. 243   In this context, the Ward test is discussed in Secher, ‘The Legal Nature of the Crown’s Title – Part 2’ (n 86) 40ff; ‘A Common Law Doctrine of Suspension of Native Title? – Part 2’ (n 222) 28ff. As a result of the application of their test, the Ward majority held that a greater degree of extinguishment had occurred by virtue of the Argyle mining lease, special leases, reserves and conditional purchase lease than the trial judge had. 244   By adopting an inconsistency of incidents test uninformed by the requirement for a clear and plain intention, the Court in Ward (n 8) followed Brennan CJ’s dissenting judgment in Wik (n 6). 245   Ward (n 8) [82] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). The rejection of an approach based on ‘degrees of inconsistency’ justified the conclusion that ‘questions of suspension of one set of rights in favour of another do not arise’: ibid. 246  ibid. The Ward Court also rejected the notion that such total inconsistency had to be permanent. Nevertheless, total inconsistency (whether or not permanent) may be inconsistent with only some components of native title rights, with the result that ‘to some extent the native title might survive or there might be no inconsistency in the relevant sense at all’: ibid [26]. That is, there may be partial extinguishment – a concept which is inconsistent with the acquisition by the Crown of a beneficial interest in land on the grant of a lease or, indeed, any interest in land: see below text to n 264ff. 247   Yanner (n 156) [109] (Gummow J), see also [37] (Gleeson CJ, Gaudron, Kirby and Hayne JJ). 248   Ward (n 8) [219], [296], [308], [333], [340], [417], [468] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

184  Radical Title Post-Mabo grant’, therefore, appears to be ‘finding that the rights granted are ‘necessarily inconsistent’ with the native title rights under consideration’.249 What is clear is that the inconsistency of incidents test forms the basis of the common law doctrine of extinguishment. The important point is that under the inconsistency of incidents test, native title is extinguished (or impaired) on the ground that the rights conferred on the lessee by the lease are inconsistent (whatever the criterion used to establish such inconsistency) with the continued enjoyment of native title rights. Extinguishment does not occur as a result of the acquisition by the Crown of any beneficial interest in the land on exercise of the power to grant the lease or upon the expiration of the term of the lease. Whether or not a lease confers exclusive possession and thus extinguishes native title, therefore, obscures rather than resolves the question of the Crown’s title on the grant of a lease or upon the expiration of the term of a lease. Indeed, there is no authoritative decision on the legal implications for the Crown’s title of the grant of a common law lease: although the majority in Ward held that a common law lease extinguished native title, this was based on the Court’s application of the inconsistency of incidents test for the purposes of the NTA, rather than on an expansion of the Crown’s radical title at common law.250 Thus, although the grant by the Crown of a common law lease relying upon its radical title may, as suggested by Gaudron J in Mabo251 and Gummow J in Yanner,252 extinguish any native title at common law on the ground that the lessee’s interest is inconsistent with its continued enjoyment, any beneficial residuary rights to the leased land do not automatically lie with the Crown.253 Should the Crown wish to claim a right to the land itself, it must exercise its sovereign power to appropriate the land to itself.254 Not only does the inconsistency of incidents test formulated in Wik and Ward support this position, so does the test for extinguishment by freehold grant as articulated by the High Court in Fejo v Northern Territory,255 the adoption of the notion of partial extinguishment by the majority of both the High Court and Full Federal Court in Ward256 and the emerging concept of ‘operational inconsistency’. Indeed, it will be seen that the approach adopted by the courts in these contexts is also inconsistent with Brennan CJ’s suggestion in Wik that the Crown grant of any estate in land necessarily confers full beneficial ownership on the Crown.

249  Bartlett, Native Title in Australia (n 91) 331. On the issue of inconsistency at common law see also Brown v Western Australia [2012] FCAFC 154, (2012) 208 FCR 505; Brown v Western Australia (No 2) [2013] FCAFC 18 where the question of extinguishment was considered in the context of mineral leases granted pursuant to an agreement ratified by statute. It was held that any native title rights were necessarily inconsistent with the rights granted to the joint venturers under the agreement subject to one qualification: that the grant of rights to the joint venturers had a temporal element because the grant was for a term with the right to successive renewal. The native title rights were, therefore, not extinguished by the grant but the exercise of the granted rights prevented the exercise of each of the native title rights for so long as the grantee carried on the activities contemplated by the agreement. 250   See above n 243 and text. 251   Mabo (n 1) 110. 252   Yanner (n 156) [108]. 253   It has been seen that although the High Court in Ward (n 8) held that the grant of a common law lease extinguished native title for the purposes of the NTA, the question of the nature of the Crown’s reversion, if any, was not addressed: above nn 243, 250 and text. 254   Or be given a conveyance from the beneficial owners. 255   Above n 20. 256   Ward (n 8); Western Australia v Ward [2000] FCA 191, (2000) 99 FCR 316 (FCAFC).



Extinguishment by Crown Grant 185

C  Extinguishment by Freehold Grant: Fejo v Northern Territory257 The Fejo High Court made it clear that at common law a grant in fee simple extinguishes native title once and for all.258 Importantly, however, the extinguishment occurs because the fee simple holder has the right to use the land in any way that the law allows, and this right is incompatible with any exercise of native title. The joint judgment of the majority stated the proposition in clear terms: Native title is extinguished by a grant in fee simple. And it is extinguished because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title. An estate in fee simple is, ‘for almost all practical purposes, the equivalent of full ownership of the land’ and confers ‘the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination.’ It simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title.259

In the context of a fee simple grant, therefore, extinguishment of native title occurs as a result of inconsistency with the grantee’s rights rather than the Crown’s rights on exercise of the power of alienation: native title is extinguished by the operation of the doctrine of estates, not the doctrine of tenure.260 Thus, where the Crown has a mere radical title to land prior to the grant of a freehold estate, although the fiction of original Crown ownership will supply the Crown with a nominal proprietary interest sufficient to support the estate, such fictional title cannot effect an extinguishment of native title. Native title is only liable to be extinguished by a real title. A fee simple grant is, of course, the greatest estate known to the common law. This is crucial: if the Crown does not acquire a beneficial interest on exercise of the power of alienation of a freehold estate, why would it do so on exercise of the power of alienation of any lesser estate? This aspect of the decision in Fejo clearly supports the proposition that the Crown does not acquire a beneficial reversionary interest on the grant of any interest in land, including a common law lease. It has been seen that (as a result of the Wik majority’s treatment of the doctrine of extinguishment) the grant of an interest in land for a limited duration, like a common law lease, may suspend rather than extinguish native title. In Fejo, the High Court rejected an argument that the fee simple grant had merely suspended native title so that it might again be asserted when the land was, once more, held by the Crown as a result of a compulsory acquisition: That the grant of freehold title extinguishes rather than suspends native title rights follows from the way in which the sovereign power to create rights and interests in land was exercised. The legislation that provided for the making of grants in fee simple of waste lands provided for the creation of rights in respect of land that were inconsistent with any continued right to native title. The rights created by the exercise of sovereign power being inconsistent with native title, the rights and interests that together make up that native title were necessarily at an end.   See also Secher, ‘The Legal Nature of the Crown’s Title – Part 2’ (n 86) 37ff.   See also P Butt, ‘Extinguishment of Native Title by Freehold Grant’ (2001) 75 Australian Law Journal

257 258

461.

259   Fejo (n 20) [43] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). See also Bodney v Westralia Airports Corp Pty Ltd [2000] FCA 1609, (2000) 109 FCR 178 [22]. 260   See above text to nn 93ff, 229.

186  Radical Title Post-Mabo There can be no question, then, of those rights springing forth again when the land came to be held again by the Crown.261

For the High Court, native title rights are necessarily extinguished permanently as a result of their inconsistency with the rights of the holder of an estate in fee simple. This result is no doubt attributable to the nature of the fee simple interest: Where the Crown makes an unqualified grant in fee simple the duration of the rights created by the grant is limitless. There is therefore a necessary absolute temporal inconsistency between the rights created by the law or act and native title, and native title is extinguished.262

Thus, the grant in fee simple is so comprehensive as to preclude any question of revival of native title. That is, the legal criterion of inconsistency is established unequivocally by the grant of a freehold estate. It is critical to remember, however, that it is only because of native title’s non-common law status that the Crown has power to grant land subject to native title and thereby confer rights on the grantee which, if inconsistent with the continued existence of the native title, may extinguish it. The Crown cannot exercise its prerogative power to grant land so as to prejudice property rights secured by the common law: in the context of common law Aboriginal rights to land, therefore, there would be no question of inconsistency between a later Crown grantee’s rights (whatever their content) and the Aboriginal rights.263 D  The Common Law Concept of Partial Extinguishment264 The question of partial extinguishment of native title rights at common law has not been authoritatively determined by the High Court: in Wik and Fejo the High Court did not have to consider whether there could be partial extinguishment of native title. In Ward, although the question whether partial extinguishment was a possible legal consequence of a statutory grant was a major issue of contention between the parties, the High Court emphasised that the provisions of the NTA265 were directly engaged in the litigation with the result that their judgment represents the statutory, rather than common law, position.266 Significantly, however, both the trial judge and the Full Federal Court in Ward applied the common law test of extinguishment exemplified in Wik. Partial extinguishment addresses the question whether: [I]f the grant, the exercise of a right or privilege contained in the grant or the Crown use of land, [is] not wholly inconsistent with the rights of the holders of native title, but [is] inconsist­ 261   Fejo (n 20) [58] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). See also Yanner (n 156) [108] (Gummow J). 262   WardFC (n 256) [684] (North J). 263   Note that, even in the context of native title, there is a distinction between an interest that is ‘limitless’ and a ‘limited’ interest. Indeed, when distinguishing between extinguishment and suspension, the Court in Fejo (n 20) considered it important that ‘A grant in fee simple does not have only some temporary effect on native title rights or some effect that is conditioned upon the land not coming to be held by the Crown in the future’: [45] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). In making this statement, the High Court left open the possibility that the grant of an interest in land which has ‘only some temporary effect on native title rights’ might result in suspension, rather than extinguishment, of native title. 264   See also Secher, ‘The Legal Nature of the Crown’s Title – Part 2’ (n 86) 40ff; Secher, ‘A Common Law Doctrine of Suspension of Native Title? – Part 2’ (n 222) 30ff. 265   In particular, Div 2B of Pt 2. 266   Ward (n 8) [2], [25] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).



Extinguishment by Crown Grant 187 ent with the enjoyment of some only of those rights, the inconsistent rights are extinguished to the extent of the inconsistency.267

The majority of the Full Federal Court in Western Australia v Ward268 unequivocally adopted the notion of partial extinguishment.269 Although the notion depended on their conceptualisation of native title as a ‘bundle of rights’,270 the majority concluded that: ‘[t]o describe native title as a bundle of rights is not to deny the possibility that in a particular case the rights and interests may be so extensive as to be in the nature of a proprietary interest in land’.271 While the majority of the High Court in Ward also described native title as a ‘bundle of rights’,272 since they emphasised the terms of the statute, rather than the common law, they explained that ‘[t]he NTA, particularly in the distinction [drawn in s 23A], . . . between complete extinguishment and extinguishment “to the extent of any inconsist­ ency”, mandates the correctness of the approach taken by the Full Court’.273 Thus, the practical effect of the metaphor of ‘bundle of rights’ was to emphasise that the NTA provides for the concept of partial extinguishment. Nevertheless, the Court went further and concluded that native title is also subject to partial extinguishment at common law.274   WardFC (n 256) [87] (Beaumont and von Doussa JJ).   Above n 256. 269   WardFC (n 256) [109] (Beaumont and von Doussa JJ). In Anderson v Wilson (n 210) [94] Black CJ and Sackville J considered that WardFC had authoritatively and affirmatively determined the question of whether there could be partial extinguishment of native title rights. But although noting that ‘the recognition that there can be partial extinguishment of native title is of some importance to the present case’, because of the way in which the critical question in the case was framed, the lessee could only succeed if he was able to demonstrate that the lease granted rights necessarily inconsistent with ‘all “species of native title”’ which might exist over the land, so the fact that some native title rights were extinguished by the lease would not require an affirmative answer to be given to the question in the case: ibid [95], [97]. The two justifications given by the majority in WardFC for their adoption of partial extinguishment were: first, that the notion ‘fits comfortably’ with the principle stated in Mabo that 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: WardFC (n 256) [90] (Beaumont and von Doussa JJ). Secondly, that because native title is not an institution of the common law they were free to mould it as they pleased: ibid [96]ff. For criticism of these justifications see: K Howden, ‘The Common Law Doctrine of Extinguishment – More than a Pragmatic Compromise’ (2001) 8 Australian Property Law Journal 206, 216–17. 270   WardFC (n 256) [109] (Beaumont and von Doussa JJ). 271   ibid [97]. See also U Secher, ‘Native Title – An Exception to Indefeasibility and a Ground for Invoking the Deferred Indefeasibility Theory’ (2000) 7 James Cook University Law Review 17, 49–57. 272   Ward (n 8) [76], [95] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See also Ward (n 8) [616], [638] (Callinan J). Callinan J was one of the majority judges in Ward but provided separate reasons (with whom McHugh J agreed). His approval of the Full Federal Court’s approach was made in the context of examining the common law position. 273   Ward (n 8) [76] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See also ibid [2], [25]. 274   For the statutory position: Ward (n 8) [26], [27], [29], [468]; for the common law position: Ward (n 8) [26]–[27], see also [284], [308] where partial extinguishment at common law was assumed in the context of the Court’s analysis of ‘mining leases in general’. cf K McNeil, ‘The Vulnerability of Indigenous Land Rights in Australia and Canada’ (2004) 42 Osgoode Hall Law Journal 271, 282–85 (esp fn 56) where McNeil concludes that the High Court has failed to properly interpret s 23G of the NTA (which is headed ‘Confirmation of partial extinguishment of native title by previous non-exclusive possession acts of Commonwealth’). McNeil argues that the heading to s 23G of the NTA is irrelevant as a result of s 13(3) of the Acts Interpretation Act 1901 (Cth). Nonetheless, McNeil does conclude that ‘When ss 23A and 23G [of the NTA], as enacted, are read together, it is apparent that [non-exclusive agricultural or pastoral leases] only extinguish native title rights and interests if that would have occurred apart from the NTA (or corresponding State or Territory Acts)’: ibid 286 fn 56. Although this is also the conclusion reached by the author, the author’s analysis is offered as support for a common law doctrine of suspension of native title: Secher, ‘A Common Law Doctrine of Suspension of Native Title? – Part 2’ (n 222) text to fn 41ff esp fn 63 and text. 267 268

188  Radical Title Post-Mabo It is significant to note that at least three members of the majority of the Mabo High Court held that native title is an interest in land.275 Indeed, Lee J, at first instance in Ward v Western Australia,276 and North J, the minority member in WardFC, rejected the notion of partial extinguishment because they conceptualised native title as a ‘right to the land itself’ reflecting an underlying title in the land so that if extinguishment were to occur, the entire underlying native title would need to be extinguished.277 Irrespective of the conceptualisation of native title and the statutory position vis-a-vis partial extinguishment, the importance of the development of the common law notion of partial extinguishment is that it is inconsistent with the acquisition by the Crown of a beneficial interest in land on exercise of the power to grant tenure in land. That is, the concept of partial extinguishment acknowledges that the Crown does not acquire beneficial ownership of land at the time of granting an interest in the land as such beneficial title would necessarily be inconsistent with all existing native title rights. Although the Ward High Court has made it clear that partial extinguishment, in the sense of total extinguishment of some components of native title, is an aspect of the doctrine of extinguishment, the Court’s position with respect to the concept of ‘operational inconsistency’ is not so clear. E  Operational Inconsistency278 The description ‘operational inconsistency’ was adopted by the majority of the Full Federal Court in both Commonwealth v Yarmirr279 and WardFC to explain Gaudron J and Gummow J’s observations in Wik to the effect that inconsistency with native title is to be ascertained not only by reference to the terms of the grant of an interest in land, but also by reference to the exercise of certain rights under the grant, such as the construction of improvements pursuant to conditions in a lease.280 For the majority in   Mabo (n 1) 51 (Brennan J).   Ward v Western Australia (1998) 159 ALR 483 (FCA). 277   Ward v Western Australia (n 276) 508 (Lee J); WardFC (n 256) [684], [849] (North J). Lee J and North J support another concept which is inconsistent with the acquisition by the Crown of a beneficial interest on the grant of a lease, namely, the concept of suspension of native title rights: see above n 233. 278   See U Secher, ‘The Concept of “Operational Inconsistency” in Australia: Implications for Native Title – the Common Law and Statutory Positions – Part I’ (2010) 18 Australian Property Law Journal 150; U Secher, ‘The Concept of “Operational Inconsistency” in Australia: Implications for Native Title – the Common Law and Statutory Positions – Part II’ (2010) 18 Australian Property Law Journal 218. 279   Commonwealth v Yarmirr [1999] FCA 1668, (1999) 101 FCR 171 (FCAFC). Note that Gummow J had in fact used the phrase ‘operational inconsistency’ in Yanner (n 156) [110] two months before Beaumont and von Doussa JJ had adopted it in YarmirrFC. 280   Wik (n 6) 166 (Gaudron J), 203 (Gummow J). Indeed, although inconsistency of native title with other rights created has been identified as the basis for the common law doctrine of extinguishment, Brennan J in Mabo (n 1) 68 recognised that in certain cases (eg where the Crown grants land in trust or reserves and dedicates land for a public purpose) the relevant inconsistency will only be revealed upon particular use of the land for a purpose otherwise inconsistent with native title. In WardFC (n 256) [95] the majority of the Full Federal Court described such inconsistency as ‘operational inconsistency’ (see also ibid [86]). Although the majority of the High Court Ward questioned the concept of ‘operational inconsistency’, such questioning was in the context of the NTA, rather than the common law per se: Ward (n 8) [394] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See discussion in Secher, ‘The Concept of ‘Operational Inconsistency’ – Part II’ (n 278) text to fn 10ff. The phrase ‘operational inconsistency’ first appears in Yanner (n 156) [110] when used by Gummow J to suggest that, although the mere existence of unperformed conditions in the grant of a pastoral lease have no immediate legal effect, in terms of inconsistency with native title, once performed, questions arise respecting ‘operational inconsistency’ between the performed condition and the continued exercise of native title rights. 275 276



Extinguishment by Crown Grant 189

WardFC, therefore, ‘operational inconsistency’ from actual use may bring about extinguishment in addition to that arising upon grant.281 On appeal, the majority of the High Court in Ward held that, for the purposes of the NTA, the concept of ‘operational inconsistency’ was ‘useful, if at all, only by way of analogy’.282 That is, reference to ‘use’ of land is relevant only to the extent that it dem­ onstrates that certain rights have been created or asserted.283 In this way, the Ward High Court rejected, ‘in principle’,284 the concept of ‘operational inconsistency’: looking to the use that has actually been made of the land distracts attention from the central inquiry which is an inquiry about rights created in others or asserted by the executive, not the way in which they have been exercised at any time.285

Significantly, although the High Court in Ward emphasised that the law governing extinguishment under the NTA is the legislation rather than the common law, in questioning the concept of operational inconsistency, the Court appears to have focused entirely on the common law. That is, the majority did not conclude that Gaudron J and Gummow J had erred in suggesting the concept of operational inconsistency in Wik. Rather, the majority suggested that Gaudron J and Gummow J’s use of the word ‘grant’ in their formulation of the concept was apt to mislead and explained that: The operation of a grant of rights may be subject to conditions precedent or subsequent. The rights themselves may be incapable of identification in law without the performance of a further act or the taking of some further step beyond that otherwise said to constitute the grant.286

Thus, the concept of ‘operational inconsistency’ was questioned as a result of the High Court’s analysis of relevant common law dicta; the terms of the NTA were not addressed. Importantly, however, it will be seen that the NTA does in fact recognise a concept of operational inconsistency; indeed, it presupposes the existence of the concept at common law.287 Moreover, and the crucial point is that, the majority in Ward clearly contemplated that in some circumstances, native title rights might only be suspended rather than extinguished, depending on the nature of the activity carried out by the grantee of land:

Although this description of ‘operational inconsistency’ was subsequently adopted by Beaumont and von Doussa JJ, as the majority of the Full Federal Court in YarmirrFC (n 279), it was not until the decision in WardFC that Beaumont and von Doussa JJ, again constituting the majority of the Full Federal Court, began to explain the circumstances in which the exercise of rights conferred by the grant of an interest in land, as distinct from the creation of the rights by the grant per se, might impair/extinguish native title: WardFC (n 256) [95], see also [86]. Crucially, however, the Full Court in WardFC made it clear that the idea behind the concept of ‘operational inconsistency’ has its origins in the judgments of Gaudron and Gummow JJ in Wik. 281  The majority held that the trial judge, Lee J, had departed from the inconsistency of incidents test approved by the High Court in Wik and Fejo by requiring operational inconsistency in all cases irrespective of extinguishment by grant: WardFC (n 256) [78], [79], [86] (Beaumont and von Doussa JJ). 282   Ward (n 8) [149]–[151], [215]–[216], [234], [306], [394], [468] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 283   ibid [149]. See also ibid [78]. 284   ibid [394]. 285   ibid [234]. See also Daniel v Western Australia [2003] FCA 1425, [12] (Nicholson J). Indeed, the Ward High Court rejected references to ‘use’ in the context of both Crown dispositions and Crown reserves. The Court also expressly stated that Brennan J’s reference, in Mabo, to ‘use of the land that is reserved, may distract attention from the relevant inquiries’: Ward (n 8) [215] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 286   Ward (n 8) [149]–[150] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 287   See below text immediately before and accompanying n 310ff.

190  Radical Title Post-Mabo The grant of exclusive possession for mining purposes is directed at preventing others from carrying out mining and related activities on the relevant land. . . . In understanding what ‘mining purposes’ are, . . . account must also be taken of the fact that a grant of a right (in this case to mine) encompasses those rights necessary for its meaningful exercise. The holder of a mining lease having a right to exclude for the specified purposes, the holder may exercise that right in a way which would prevent the exercise of some relevant native title right or interest for so long as the holder of the mining lease carries on that activity. Just as the erection by a pastoral lease holder of some shed or other structure on the land may prevent native title holders gathering certain foods in that place, so too the use of land for mining purposes may prevent the exercise of native title rights and interests on some parts (even, in some cases, perhaps the whole) of the leased area.288 (emphasis added)

Thus, the High Court’s approach envisaged that, at least in the context of mining and pastoral leases, the effect of the concept of operational inconsistency is suspension, rather than extinguishment, of native title. While this view was adopted by the Federal Court in Daniel v Western Australia,289 the trial judge and the Full Federal Court in De Rose v South Australia290 preferred the view of the Full Federal Court in WardFC when it articulated the concept: that is, the effect of ‘operational inconsistency’ results in extinguishment of native title.291 The crucial point, however, is that whether the concept of ‘operational inconsistency’ suspends or extinguishes native title rights, ‘conflict in actual use is only a material consideration where the grant itself does not extinguish native title, but the later exercise or performance of a power or condition contained in the grant does so’.292 The concept is, therefore, inconsistent with the Crown acquiring a beneficial title as a result of making the grant; a fortiori, inconsistent with Brennan CJ’s reversion expectant dictum and his dictum to the effect that the Crown grant of any estate in land confers full beneficial ownership on the Crown. It will be seen in the next section that the provisions of the NTA dealing with the relationship between native title rights and leasehold rights offer further guidance on the issue of the legal nature of Crown’s title on the grant of lease: the question of beneficial ownership of currently unalienated land.

288   Ward (n 8) [308] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See also R Bartlett, ‘The Denial of Native Title to the Resource Provinces of the Burrup Peninsula and the Pilbara: Daniel v State Western Australia’ (2003) 22 Australian Resources and Energy Law Journal 453, 463–64. 289   Daniel v Western Australia [2003] FCA 666 [723], [1110], [1107], [1109] (Nicholson J). See also Secher, ‘The Concept of “Operational Inconsistency” – Part II’ (n 278) 224ff. Note that not only is Nicholson J’s decision in Daniel v WA consistent with the Wik High Court’s ‘no plenum dominium’ analysis in the context of the legal nature of the Crown’s title on the grant of a lease, it went even further: Nicholson J extended this analysis to the legal nature of a pastoral lessee’s title when exercising the power to construct improvements: ibid [1107], [1109]. 290   De Rose v South Australia [2002] FCA 1342 (O’Loughlin J); De Rose v South Australia (No 2) [2005] FCAFC 110, (2005) 145 FCR 290. 291  See De Rose (n 290) esp [554], [555], [542]–[558]; De Rose (No 2) (n 290) esp [145], [414], [425], [417], [419]. See also Secher, ‘The Concept of ‘Operational Inconsistency’ – Part II’ (n 278) 226ff. Note that other Federal Court decisions, including the decision in Turrbal People v Queensland [2006] FCA 187, (2006) 150 FCR 103 have presupposed the existence of the concept without specifying its effect on native title. 292   WardFC (n 256) [86] (Beaumont and von Doussa JJ).



Native Title Legislation 191

IV  NATIVE TITLE LEGISLATION: IMPLICATIONS FOR PROPERTY RIGHTS TO CURRENTLY UNALIENATED LAND293

Under the NTA, once native title is recognised, it cannot be extinguished contrary to the Act.294 Native title can, therefore, only be extinguished in limited circumstances: where it is necessary to validate past acts affecting native title;295 where it is necessary to validate certain acts done and grants made on the basis of the pre-Wik presumption that pastoral leases extinguished native title in the intermediate period between the commencement of the NTA and the Wik decision;296 where this is the result of the confirmation of the relationship between native title and other non-native title interests existing on or before the date of the Wik decision;297 or under the future acts regime.298 Indeed, having recognised native title, the NTA aims to provide significant protection for native title rights and interests. It will be seen that it is in this context that the NTA’s recognition of the non-extinguishment principle299 and the statutory concepts of suspension,300 partial extinguishment301 and ‘operational inconsistency’302 support the proposition that the Crown does not automatically acquire a beneficial interest to land by merely granting an interest in the land. Significantly, the non-extinguishment principle applies not only in cases involving the creation of rights which, although inconsistent, are not completely inconsistent with native title rights, but (in a departure from the common law concept of extinguishment) also in cases involving complete inconsistency between created rights and native title rights. This is crucial: since the non-extinguishment principle contemplates that native title may revive in cases involving the grant of an interest in land that is completely inconsistent with native title, it implies that the NTA is based upon the assumption that the acquisition of any interest by the Crown as a result of granting an interest in land (including one that is completely inconsistent with native title) does not stand in the way of the recognition of native title at that point. Thus it rejects the proposition that the Crown automatically acquires a beneficial interest on the grant of any interest in land. The NTA’s recognition that a grant which does not confer a right of exclusive possession may suspend rather than extinguish native title rights is similarly based upon the assumption that the Crown does not acquire a beneficial interest in land simply as a 293   See also Secher, ‘The Concept of ‘Operational Inconsistency’ – Part II’ (n 278) 229ff, 239ff; Secher, ‘A Common Law Doctrine of Suspension of Native Title? – Part 2’ (n 222) 54ff. 294   NTA, s 11. 295   NTA, Pt 2, Div 2. 296   NTA, Pt 2, Div 2A. 297   NTA, Pt 2, Div 2B. 298   NTA, Pt 2, Div 3. Although acts transferring land or waters under Commonwealth and South Australian Aboriginal land rights legislation identified in s 253 of the NTA are not future acts (NTA, s 233(3)), special provision is made for the validation of future acts consisting of transfers under New South Wales land rights legislation: NTA, Pt 2, Div 2AA. 299   NTA, s 238. 300   NTA, s 23G, esp 23G(1)(b)(ii) which provides that, if the inconsistent act does not extinguish native title at common law, ‘to the extent’ of any inconsistency, the native title rights are suspended for the time the inconsistent act is in force. 301   NTA, ss 23G, see also 23A(1), 23A(3). Note that although s 23G is headed ‘Confirmation of partial extinguishment of native title by previous non-exclusive possession acts of Commonwealth’, it provides for both partial extinguishment and suspension of native title: above n 300. 302   NTA, s 23B(9C).

192  Radical Title Post-Mabo result of granting an interest in land. In this context, Division 2B of Part 2 of the NTA confirms the effect on native title of previous non-exclusive possession acts, which must consist of the grant of a non-exclusive agricultural lease or a non-exclusive pastoral lease.303 Previous non-exclusive possession acts attributable to the Commonwealth or to a State or Territory304 either extinguish any native title rights that are inconsistent with the grant if that is the position at common law,305 or suspend any native title rights that are inconsistent with the grant.306 Because there is no statutory test for determining what amounts to ‘inconsistency’ for the purpose of the non-extinguishment principle, the question of inconsistency is left for resolution by the common law. Although there is some support for the proposition that, at common law, a lease, being for a limited duration, can never satisfy the degree of inconsistency necessary to extinguish native title,307 the NTA makes it clear that some leases do effect an extinguishment of native title. This is, however, as a result of the statutory provisions. The NTA provisions can, of course, also result in the suspension and revival of native title rights notwithstanding that an application of the common law inconsistency of incidents test would effect an extinguishment of native title.308 Nevertheless, the common law doctrine of extinguishment also retains a role under the NTA with respect to determining ‘the extent of any inconsistency’ for the purposes of the statutory equivalent to the common law notion of ‘partial extinguishment’.309 Significantly, it has been seen that the doctrine of partial extinguishment is inherently inconsistent with the view that the Crown acquires a beneficial reversion on the grant of a lease. This is also the result of the concept of operational inconsistency. Indeed, although the Ward High Court has questioned the concept of ‘operational inconsistency’, section 23B(9C) of the NTA presupposes that inconsistency of ‘use’, rather than ‘grant’, can result in extinguishment of native title rights at common law. Thus, the NTA recognises a concept of ‘operational inconsistency’ in the context of the confirmation of extinguishment by previous exclusive possession act. The statutory provision specifically relating to ‘operational inconsistency’ provides that a grant to the Crown or a statutory authority will only constitute a previous exclusive possession act if the grant extinguished native title at common law, or where the grant did not extinguish native title at common law, when the land or waters concerned were used in such a way that, at common law, native title is extinguished.310 In the latter case, the Crown’s right to use the land or waters concerned is expressly declared to be valid.311 303  NTA, s 23F(2)(c). The terms ‘non-exclusive agricultural lease’ and ‘non-exclusive pastoral lease’ are defined in NTA, ss 247B and 248B, respectively. 304   Provided the State or Territory has legislated in accordance with NTA, Pt 2, Div 2B. 305   NTA, s 23G(1)(b)(i), 23I. 306   NTA, ss 23G(1)(b)(ii), 23I. 307   See cases discussed in Secher, ‘A Common Law Doctrine of Suspension of Native Title? – Part 1’ (n 222); Secher, ‘A Common Law Doctrine of Suspension of Native Title? – Part 2’ (n 222). 308   eg the validation of an exclusive possession, long-term mining lease, for the purposes of the ‘past’ and ‘intermediate period’ act regimes, invokes the non-extinguishment principle. 309   NTA, s 23G. The statutory concept of partial extinguishment applies to ‘previous non-exclusive possession acts’ including grants of non-exclusive agricultural leases or non-exclusive pastoral leases (s 23A) and to category B ‘past’ and ‘intermediate period’ acts (ss 15(1)(c) and 22B(c) respectively). 310   NTA, s 23B(9C). In effect, this provision excludes ‘fake freehold’ or Crown to Crown grants from the list of tenures which the government considers confer a right to exclusive possession on the grantee. 311   NTA, s 23DA.



Conclusion 193

Thus, the NTA recognises that a grant of an interest in land conferring exclusive possession may not extinguish native title, yet the subsequent use of the land by the grantee may have this effect: but only if used in a way that would extinguish native title at common law. This is crucial: the NTA presupposes a concept of ‘operational inconsistency’ at common law. Moreover, the effect of ‘operational inconsistency’ under the NTA is dependent upon the effect of ‘operational inconsistency’ at common law. Accordingly, if the effect of ‘operational inconsistency’ at common law is suspension, rather than extinguishment, of affected native title rights, this will also be the result under the NTA. Although the NTA affects the legal consequences of a particular grant of an interest in land, it does not affect the nature of the Crown’s title to the land granted. Thus, where the Crown has a mere radical title prior to the grant of a leasehold estate, the common law determines the nature of the Crown’s title on the expiration of the term. Despite the NTA, therefore, the nature of the Crown’s title retains the character it had before the grant; it does not give rise to a beneficial reversionary interest. In the event that this view is incorrect, and the NTA is found to affect the nature of the Crown’s title upon the grant of an interest in land, the Crown’s title would only be affected by the statute in a very limited way. Since the NTA is only concerned with the effect of acts done and grants made over land subject to native title, the legislation would merely prescribe the consequences for radical title in respect of land subject to (non-common law) native title, it would not affect the consequences of the Crown’s title in respect of land subject to common law Aboriginal title.

V CONCLUSION

Although chapter three demonstrated that the ‘postulate of the doctrine of tenure’ limb of radical title does not confer beneficial ownership of any land on the Crown, the Mabo High Court suggested four circumstances in which the Crown, upon acquisition of sovereignty, automatically acquired beneficial ownership of land. Significantly, all four circumstances involved unalienated land. Although unalienated land includes, by definition, land which has never been brought within the doctrine of tenure ad veritatem (‘original’ unalienated land), it also includes land which has previously been brought within the regime governed by the doctrine of tenure ad veritatem but has ceased to be within it because the relevant Crown grant has expired (‘currently’ unalienated land). Since the postulate of the doctrine of tenure limb of radical title does not apply to original unalienated land, the question of beneficial ownership of such land depends upon the juridical nature of radical title as a concomitant of sovereignty. The question of the legal nature of the Crown’s title to currently unalienated land, however, involves a consideration of the interaction of both limbs of radical title. That is, because of the limited role of the doctrine of tenure in Australian land law, the question of beneficial ownership of unalienated land (except to the extent of native title) depends upon the juridical nature of radical title as a concomitant of sovereignty per se or in conjunction with the postulate of the doctrine of tenure limb of radical title. The majority of the Mabo High Court attributed beneficial ownership of original unalienated land (considered in section I) to the Crown on the ground that there was ‘no other proprietor’. In the context of currently unalienated land (considered in sections II,

194  Radical Title Post-Mabo III and IV), the Crown’s beneficial ownership was justified on the basis of the ‘reversion expectant’ argument. This chapter has, however, shown that, as a concomitant of sovereignty, radical title does not automatically confer beneficial ownership of any land. Crucially, the ‘no other proprietor’ and ‘reversion expectant’ arguments are merely two new legal fictions which the High Court has created to replace the feudal fiction of ‘original Crown ownership’. In section I it was seen that there are three objections to the ‘no other proprietor’ principle, and Brennan J’s reliance upon it in Mabo: it is not only obiter which is incorrect in law, it also contradicts the legal origins and purpose of the two limbs of radical title. In sections II, III and IV, it was seen that there are six objections to the ‘reversion expectant’ argument. The first is that, on general principles, the High Court’s identification of radical title as both a postulate of the doctrine of tenure and a concomitant of sovereignty denies the acquisition by the Crown of a beneficial reversionary interest upon the grant of any lease. In the context of the concomitant of sovereignty limb, the Crown’s radical title is an aspect of its sovereignty and is sufficient to create an interest in land without requiring a beneficial interest in the land. That is, the Crown’s undoubted power of alienation is divorced from the assumption that the Crown holds all lands absolutely. Unless the Crown has more than mere radical title to the land, the Crown does not have, nor need, a freehold estate when a lease is created. As a concomitant of sovereignty, the Crown’s radical title is sufficient to create an interest for a term of years without requiring the creation of a reversion expectant. Although the Crown’s power to grant land is not dependent upon ownership of the land, once the Crown has exercised its sovereign power, at common law, to grant an interest in land not part of its own demesne, the land is brought within the regime governed by the doctrine of tenure ad veritatem and the fiction of original Crown ownership is invoked. Consequently, when the Crown grants a leasehold estate in respect of unalienated land (that is, before the Crown has acquired an actual title to the land), the common law vests a reversionary interest in the Crown in order to support and enforce the relationship of landlord and tenant. Although such reversionary interest will be supplied by virtue of the application of the fiction of original Crown ownership in respect of the particular Crown grant, the fiction is only invoked to achieve the intended grant, it does not apply to confer title on the Crown. Since the two limbs of radical title apply contemporaneously at common law, although the postulate of the doctrine of tenure limb dictates that a reversion is created upon the grant of a leasehold estate, the concomitant of sovereignty limb dictates that such reversion merely confers a nominal proprietary interest sufficient to support the lease for its duration. The second objection to Brennan J’s reversion expectant dictum in the context of the grant of any lease, including a common law lease, is the High Court’s unequivocal adoption of the inconsistency of incidents test as the basis for the common law doctrine of extinguishment of native title by Crown grant (including a grant in fee simple). The inconsistency of incidents test is the very antithesis of Brennan CJ’s view, as author of the minority judgment in Wik, that the Crown grant of any estate in land necessarily confers full beneficial ownership on the Crown: if this were the legal consequence of a Crown grant, any extinguishment of native title would occur as a result of the Crown’s acquisition of beneficial title to the land; the test of inconsistency would be otiose. Nevertheless, Brennan CJ expressed this view in the context of affirming and extending his earlier position articulated in Mabo that irrespective of the terms of a lease, the mere



Conclusion 195

granting of a lease would necessarily expand the Crown’s radical tile into a plenum dominium and thereby extinguish native title. Thirdly, the majority of the Wik High Court rejected the reversion expectant argument in the context of pastoral leases. Since the majority found that either the Crown has no reversionary interest, or no reversionary interest as that concept is understood at common law, they distinguished ‘reversion’ from its common law meaning and held it to connote the resumption of the character of Crown land liable to further disposition. That is, the Crown’s radical title remained unaltered. Although the majority of the Wilson High Court recognised that there was a reversion dependent upon the expiration of a perpetual lease, they did not clarify whether or not such reversion embraced the traditional meaning of reversion. The majority of the High Court’s approach in Wik, therefore, continues to be authoritative on this issue. The fourth objection to Brennan J’s reversion expectant dictum is the acceptance, by the majority of both the Full Federal Court and the High Court in Ward, of the concept of partial extinguishment. The concept of partial extinguishment acknowledges that it is possible for only some native title rights to be extinguished by the creation of inconsistent rights. It follows that on the grant of an interest in land conferring such inconsistent rights, the Crown does not acquire beneficial ownership of the land at the time of the grant as such beneficial title would necessarily be inconsistent with all existing native title rights. Similarly, by recognising that inconsistency of ‘use’, rather than ‘grant’, can extinguish native title, the concept of ‘operational inconsistency’ denies the Crown’s acquisition of a beneficial title as a result of making a grant and constitutes the fifth objection to the reversion expectant argument. It is also clear that the absence of any statutory test for determining what amounts to inconsistency under the NTA means that the common law inconsistency test is incorporated into the NTA. Nevertheless, the sixth reason for rejecting Brennan J’s reversion expectant dictum is found in the NTA’s non-extinguishment principle and the statutory concepts of suspension, partial extinguishment and operational inconsistency. Both the non-extinguishment principle and the statutory concept of suspension contemplate that native title may revive not only in cases involving the creation of rights which, although inconsistent, are not completely inconsistent with native title rights, but (in a departure from the common law position) also in cases involving complete inconsistency between created rights and native title rights. These statutory concepts thus imply that the NTA is based upon the assumption that the acquisition of any interest by the Crown as a result of granting an interest in land (including one that is completely inconsistent with native title) does not stand in the way of the recognition of native title at that point. Thus, they necessarily reject the proposition that the Crown automatically acquires a beneficial interest on the grant of any interest in land. The same conclusion applies to the statutory equivalents of the common law concepts of partial extinguishment and operational inconsistency. The objections to Brennan J’s ‘no other proprietor’ and ‘reversion expectant’ arguments for attributing beneficial ownership of unalienated land to the Crown all support the proposition that, as a concomitant of sovereignty, radical title does not, without more, invest the Crown with beneficial ownership of any land. Thus, the radical title which the Crown acquired to land in Australia upon assumption of sovereignty did not, of itself, confer beneficial ownership of any land. Although this proposition clearly

196  Radical Title Post-Mabo represents the common law position, the alienation of land in Australia is now governed by a statutory regime. While the term ‘Crown land’ was no doubt defined in all Acts passed by the colonial governments dealing with unalienated land in the pre-Mabo belief that the absolute ownership of all land was vested in the Crown until it was alienated by Crown grant, the Wik majority’s analysis of residuary rights to ‘Crown land’ reveals that the meaning of ‘Crown Land’ in the Queensland Land Acts is merely land which the Crown has radical title to. In Wik, however, Brennan CJ (as he had become) not only confirmed his earlier ‘reversion expectant’ dictum but suggested that the grant of any estate in land necessarily conferred beneficial ownership on the Crown. While this approach appears to accept the view that the Crown’s ownership of all land subject to native title vested upon settlement, it has been suggested that Brennan CJ adhered to the interpretation of radical title as a bare legal title sufficient to support the doctrine of tenure, but that he merely applied the fiction associated with the doctrine of tenure ad veritatem beyond its purpose. In any event, by focusing on the creation of a tenure (and thus the postulate of the doctrine of tenure limb of radical title), Brennan CJ’s judgment is irrelevant to the question of the beneficial ownership of unalienated land: a question which depends on the juridical nature of radical title as a concomitant of sovereignty per se or in conjunction with the postulate of the doctrine of tenure limb of radical title. Furthermore, it will be seen in the next chapter, that in Commonwealth v WMC Resources Ltd,312 Brennan CJ’s treatment of the statutory power of alienation under the Petroleum (Submerged Lands) Act 1967 (Cth) is the very antithesis of his treatment of the statutory power of alienation under the Queensland Land Act in Wik. Although WMC concerned the Crown’s title to the continental shelf outside the territorial sea, in Commonwealth v Yarmirr,313 Merkel J, specifically referring to Brennan CJ’s analysis in WMC, suggested that the Crown’s title to the territorial sea is equivalent to the Crown’s radical title. Thus, the question examined in the next chapter is whether any analogy can be drawn between the Crown’s title to the sea and the Crown’s title to land.

  Commonwealth v WMC Resources Ltd [1998] HCA 8, (1998) 194 CLR 1.   Above n 279.

312 313

5 Radical Title: Lessons from the Sea

I

T WAS SEEN in chapters three and four that there is considerable authority, including the majority of the High Court in both Mabo1 and Wik,2 to support the proposition that radical title is merely a bare nominal title which does not confer any beneficial entitlement to the land to which it relates. Of course, both Mabo and Wik concerned the nature of the Crown’s title to land within Australia. Subsequently, the High Court’s decision in Commonwealth v Yarmirr3 raised the important question of whether the Crown’s acquisition of sovereignty over the territorial sea was accompanied by the vesting of radical title which could thus be burdened by native title. Prior to this decision, the High Court in Commonwealth v WMC Resources Ltd4 had considered the Crown’s title to the continental shelf beyond the territorial sea and, in doing so, had made some important observations regarding the Crown’s title to the territorial sea and seabed. Indeed, it will be seen that, as author of the principal judgment in WMC, Brennan CJ declared that the Crown’s radical title does not exist below low-water mark. Consequently, in Yarmirr, the majority of the High Court drew a distinction between the Crown’s radical title to land and the Crown’s ‘sovereign rights and interests’ to the territorial sea. Nevertheless, the Yarmirr High Court indicated, without deciding, that as a result of legislation effecting the offshore constitutional settlement, radical title may now be the appropriate ‘tool’ with which to analyse the Crown’s rights to the territorial sea. Indeed, as a member of the Full Federal Court in Commonwealth v Yarmirr,5 Merkel J specific­ ally referred to Brennan CJ’s key reference to radical title in WMC and suggested that the two concepts, radical title and ‘sovereign rights and interests’, are analogous. Although the Yarmirr High Court did not address the intertidal zone,6 it will be seen that the Full Federal Court in YarmirrFC held that the enactment of the Native Title Act 1993 (Cth) (NTA)7 gave recognition to the Crown’s acquisition of sovereignty and radical title over the whole area to which the NTA applied, including the intertidal zone.8 While this amounted to a statutory extension of radical title to the intertidal zone, the   Mabo v Queensland (No 2) (1992) 175 CLR 1 (HCA).   Wik Peoples v Queensland (1996) 187 CLR 1 (HCA). 3   Commonwealth v Yarmirr [2001] HCA 56, (2001) 208 CLR 1 [178]. 4   Commonwealth v WMC Resources Ltd [1998] HCA 8, (1998) 194 CLR 1. 5   Commonwealth v Yarmirr [1999] FCA 1668, (1999) 101 FCR 171 (FCAFC). 6   The ‘intertidal zone’ refers to the area of the shore between high and low-water marks and that part of rivers and estuaries that is affected by the tides: Gumana v Northern Territory [2005] FCA 50, (2005) 141 FCR 457 [3], [31] (Selway J). It includes ‘the foreshore’ (the shore between high and low-water marks: [31], [61]) and the ‘arms of the sea’ (‘estuaries and rivers capable of navigation and subject to the ebb and flow of the tide’: [66]). 7   Act No 110 of 1993 as amended. 8   See below text to n 56ff. 1 2

198  Radical Title: Lessons from the Sea subsequent Federal Court decision in Gumana v Northern Territory9 contributed to the common law analysis of the Crown’s title to the intertidal zone. Furthermore, in the recent case recognising native title in respect of a major part of the sea area of Torres Strait, Akiba v Queensland (No 2),10 the Federal Court made some important observations about the implications of the Crown’s acquisition of sovereignty beyond the territorial sea in relation to the Exclusive Economic Zone and the continental shelf. These developments are considered for their contribution to identifying the rights of the Crown upon acquisition of sovereignty. Thus, this chapter examines the legal nature of the Crown’s title to the sea, including the intertidal zone,11 the territorial sea and both the Exclusive Economic Zone and continental shelf beyond the territorial sea,12 to determine whether any analogy can be drawn between such title and the Crown’s radical title to land. The principal question sought to be answered is: does the juridical nature of the title acquired by the Crown upon acquisition of sovereignty beyond high and low-water mark assist in elaborating the nature of the title acquired by the Crown upon acquisition of sovereignty over land? It will be seen that different tests exist for initial recognition of native title vis-a-vis land and sea: the Yarmirr High Court introduced a ‘double’ inconsistency of incidents test for the purpose of the territorial sea which is incompatible with Brennan J’s fundamental statement of recognition of native title in Mabo. It was possible for these different tests to develop because of the perceived distinction between the legal nature of the Crown’s title to land and the territorial sea. Crucially, however, it will be seen that both authority and sound legal principle support a consistent approach to characterising the legal nature of the Crown’s title to both sea and land: the rights and powers acquired over land and sea upon assumption of sovereignty are equivalent, conferring a bare legal title on the Crown.13   Above n 6.   Akiba v Queensland (No 2) [2010] FCA 643, (2010) 270 ALR 564. Finn J’s finding in this case at [6] that the assertion of sovereignty over the islands of the Torres Strait by the British Crown ‘did not lead to the Islanders being dispossessed of their land or sea domains, or deprived of their traditional means of livelihood’ was not challenged and was confirmed by the Full Federal Court: Commonwealth v Akiba [2012] FCAFC 25, (2012) 204 FCR 260 [3] (Keane CJ and Dowsett J). Finn J’s finding that offshore native title exists was also not contested; the scope of the native title rights was: see below text to nn 277–82. Author’s postscript: the High Court’s decision in Akiba v Commonwealth [2013] HCA 33, (2013) 87 ALJR 916 restored Finn J’s decision visa-vis the scope of offshore native title rights and, more importantly for present purposes, did not disturb the principles which emerge from Finn J’s observations regarding the Crown’s acquisition of sovereignty beyond the territorial sea in relation to the Exclusive Economic Zone and the continental shelf: see below n 286. 11   See the definition of ‘intertidal zone’ above n 6. 12  The ‘territorial sea’ refers to all areas below low-water mark. Australia’s Exclusive Economic Zone extends from the outer edge of the territorial sea up to 200 nautical miles from the territorial sea baseline. The outer limit is less than 200 nautical miles in some areas in accordance with agreements with neighbouring countries. Although coastal states are not obliged to claim the Exclusive Economic Zone, Australia has done so: Akiba (n 10) [691] (Finn J). 13   On the issues raised in this chapter see also U Secher, ‘The Crown’s Radical Title and Native Title: Lessons from the Sea: Part One – The Position Before Yarmirr’ (2011) 35 Melbourne University Law Review 523; U Secher, ‘The Crown’s Radical Title and Native Title: Lessons from the Sea: Part Two – Yarmirr and Beyond’ (2011) 35 Melbourne University Law Review 1099. Parts of these articles have been reproduced with the permission of the Melbourne University Law Review Editorial Board. Note that the literature on offshore recognition of native title has focused on the implications of specific judicial pronouncements for native titleholders rather than on examining the underlying legal nature of the Crown’s title to offshore areas and thus identifying a principled approach vis-a-vis the implications for affected native title: see, eg, R Levy, ‘Native Title and the Seas: The Croker Island Decision’ (1999) 4(17) Indigenous Law Bulletin 20; L Strelein, ‘Native Title Offshore – Commonwealth v Yarmirr; Yarmirr v NT’ (2001) 5 Native Title News 78; G Hiley, ‘The Croker Island Appeals’ in B Keon-Cohen (ed), Native Title in the New Millennium (Canberra, Aboriginal Studies Press, 2001) 213; A Grey, ‘Offshore Native Title: Currents in Sea Claims Jurisprudence’ (2007) 11(2) Australian 9

10



The Territorial Seabed and Beyond Before Mabo 199 I  THE CROWN’S TITLE TO THE TERRITORIAL SEABED AND BEYOND: THE POSITION BEFORE MABO

Pre-Mabo, it was generally accepted that the foreshores and territorial seabed were presumed to be owned by the Crown by prerogative right.14 Historically, however, the foreshore and territorial sea have been treated differently from other lands: while the fiction of original Crown ownership applied, the fiction of Crown grants did not.15 Consequently, statutes of limitation apart, a subject claiming title to such land had to allege a Crown grant.16 It has been suggested that the reason for this rule is that, unlike other lands, since the foreshore and seabed were not granted to subjects by the King, original title was retained.17 Although the general rule is that the Crown’s title must be a matter of record before the Crown can be in possession of lands, because the Crown was presumed to be in possession of the foreshore and territorial seabed, no record was necessary.18 Nevertheless, in 1876, the Privy Council suggested in R v Keyn19 that although the Crown was admitted to be the owner of the foreshore, Crown property did not extend further seaward than low-water mark. This suggested limitation on the Crown’s dominion was, however, rejected by the Privy Council in Secretary of State for India v Chelikani Rama Rao.20 Indeed, there is considerable authority, including Chelikani, for the proposition that, post-Keyn, there was no doubt that the Crown had property rights over the territorial seabed.21 Indigenous Law Reporter 55; S Dorsett, ‘An Australian Comparison on Native Title to the Foreshore and Seabed’ in A Erueti and C Charters (eds), Maori Property Rights and the Foreshore and Seabed: The Last Frontier (Wellington, Victoria University Press, 2007) 59; J Ruru, ‘Claiming Native Title in the Foreshore and Seabed’ in LA Knafla and H Westra (eds), Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand (Vancouver, UBC Press, 2010) 185, esp 196–98. Furthermore, while the legal nature of the Crown’s radical title post-Mabo has been examined by other authors (notably McNeil and Hepburn), such examinations have been largely confined within a land framework: see, eg, K McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (1996) 1 Australian Indigenous Law Reporter 181 (reprinted in K McNeil, Emerging Justice? Essays on Indigenous Rights in Canada and Australia (Saskatoon, University of Saskatchewan Native Law Centre, 2001) 357–408); S Hepburn, ‘Feudal Tenure and Native Title: Revising an Enduring Fiction’ (2005) 27 Sydney Law Review 49; S Hepburn, ‘Disinterested Truth: Legitimation of the Doctrine of Tenure Post-Mabo’ (2005) 29 Melbourne University Law Review 1. Indeed, for Hepburn, the High Court’s recognition of the Crown’s radical title ‘foreshadows the eventual destruction of feudal tenure in Australia’: ibid 23. Hepburn’s main argument in the context of recognition of radical title is that in order to promote a pluralist property culture, the complete abolition of the feudal doctrine of tenure and its replacement with an allodial system of landholding is necessary. 14   J Chitty, A Treatise on the Law of the Prerogatives of the Crown; and the Relative Duties and Rights of the Subject (London, Joseph Butterworth and Son, 1820) 206–08; K McNeil, Common Law Aboriginal Title (Oxford, Clarendon Press, 1989) 103–04, esp the authorities cited at 104 fn 113; Yarmirr (n 3) [213]–[214] (McHugh J). See also, inter alia, Lord Fitzhardinge v Purcell [1908] 2 Ch 139 (Ch D) 166–67 (Parker J); Secretary of State for India v Chelikani Rama Rao (1916) 43 LR Ind App 192 (PC). There was no doubt that the Crown had property over the seabed municipally for an indeterminate distance from the shore and internationally for three miles therefrom: Foreman v Free Fishers and Dredgers of Whitstable (1869) 4 LR HL 266. 15  Where a subject is in possession the law generally deems a Crown grant: McNeil, Common Law Aboriginal Title (n 14) 82. 16   Lardil Peoples v Queensland [2004] FCA 298 [221] (Cooper J); Yarmirr (n 3) [213] (McHugh J); McNeil (n 14) 104. 17   Chitty (n 14) 207, McNeil (n 14) 104. 18   McNeil (n 14) 103–05. On the record requirement see ch 6 text to n 120ff. 19   R v Keyn (1876) 2 Ex D 63 (PC). 20   Above n 14. 21   See, eg, Lord Fitzhardinge v Purcell (n 14). See also Attorney-General for British Columbia v AttorneyGeneral for Canada [1914] AC 153 (PC) 174 where Viscount Haldane LC (for Viscount Haldane LC and Lords Atkinson and Moulton) specifically left this question open; Yarmirr (n 3) [358] (Callinan J).

200  Radical Title: Lessons from the Sea The High Court of Australia had, however, expressed divergent views on this issue. In New South Wales v The Commonwealth,22 Gibbs J, Stephen J and Jacobs J concluded that the Crown did own the seabed;23 Barwick CJ observed that ‘any conclusion on [the] question may be fraught with considerable uncertainty;24 and Mason J emphasised that the cases relied upon to establish Crown ownership of the territorial seabed failed to acknowledge that the territorial sea was a distinct concept from land.25 Subsequently, therefore, it was possible for Mason J, in Robinson v Western Australia Museum,26 to reject a submission that the High Court in NSW v Commonwealth had held that the Seas and Submerged Lands Act 1973 (Cth) (SSLA) conferred on the Crown ‘proprietary rights in the sea bed’.27 Nevertheless, the majority of the Court in NSW v Commonwealth agreed that the common law operated only in the realm which ended at low-water mark.28 Of the four majority judges on this issue, however, only three referred to Chelikani29 and of these, only two expressly distinguished it.30 Thus, pre-Mabo, while it was not entirely clear whether the Crown had property rights below low-water mark, if it did the source of the title was not the common law. Indeed although divergent views on the question of the Crown’s property rights below low-water mark (if any) and their source continued to be expressed until the law was eventually clarified by the Yarmirr High Court, the new element introduced into the debate post-Mabo was the concept of ‘radical title’.

II  THE CROWN’S TITLE TO THE TERRITORIAL SEABED AND BEYOND POST-MABO: WMC AND YARMIRRFC

A  WMC: Brennan CJ’s Judgment – Radical Title versus Statutory Sovereign Rights In WMC, four of the six High Court justices referred, either expressly31 or impliedly,32 to the concept of radical title and all six justices referred to the concept of ‘sovereign rights’.33 WMC concerned the continental shelf beyond the territorial sea. Section 11 of the SSLA relevantly provided: [T]he sovereign rights of Australia . . . in respect of the Continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth.

  New South Wales v The Commonwealth (1975) 135 CLR 337 (HCA).   ibid 397–400 (Gibbs J), 433 (Stephen J), 487 (Jacobs J). 24   ibid 367. 25   ibid 465–66. 26   Robinson v Western Australia Museum (1977) 138 CLR 283 (HCA). 27   ibid 337. 28   NSW v Commonwealth (n 22). The majority judges were Barwick CJ, McTiernan, Mason and Jacobs JJ. 29   ibid 465–66 (Mason J), 487 (Jacobs J), 421, 423, 427, 448 (Stephen J). 30   ibid 465–66 (Mason J), 448 (Stephen J). 31   WMC (n 4) [20]–[21] (Brennan CJ), [236], [242], [244] (Kirby J). 32   ibid [84] (Gaudron J), [161] (Gummow J). 33   ibid [3]–[5] (Brennan CJ), [28]–[29], [32]–[33], [35]–[36] (Toohey J), [69], [71], [84]–[85] (Gaudron J), [94]–[96] (McHugh J), [158]–[163] (Gummow J), [212]–[213], [226], [227], [236], [243]–[244], [246] (Kirby J). 22 23



The Territorial Seabed and Beyond Post-Mabo 201

At this point, discussion is restricted to Brennan CJ’s ‘key majority’34 judgment for two reasons: first, although giving their own separate reasons, the majority of the High Court in WMC agreed with the orders proposed by the Chief Justice;35 and, secondly, as a member of the Full Federal Court in YarmirrFC, Merkel J, whose approach most closely resembles the High Court’s approach on appeal, specifically referred to Brennan CJ’s judgment.36 Brennan CJ found that, although the petroleum exploration permit and WMC Resources Ltd’s interest could be classified as proprietary rights,37 holders of offshore petroleum permits did not have a proprietary interest protected by section 51(xxxi) of the Constitution.38 The rights were the creatures of statute, namely of the Petroleum (Submerged Lands) Act 1967 (Cth) (P(SL)A),39 and their continued existence depended upon the continued existence of their statutory support.40 Speaking of the source of the rights of permit holders under the P(SL)A, the Chief Justice observed that there was a distinction between the Crown’s title to land and the Crown’s title to the relevant area of the continental shelf: It is erroneous to regard the [P(SL)A] as the off-shore equivalent of those provisions which, in Australia, authorise the Crown to alienate interests in the waste lands of the Crown (provisions which I shall call ‘Land Acts’). If it were the equivalent of Land Acts, it would be arguable that the extinguishing of a permittee’s proprietary rights relieves the Commonwealth of a reciprocal burden on its title to land within the permit area and thus constitutes an acquisition of property.41

He explained that this was because what he described as the ‘Land Acts’ ‘assume the existence of the Crown’s radical title to land lying above the low water mark’.42 Brennan CJ did not, however, expand on his views on the nature of radical title, simply stating that he had examined the concept in Mabo and it was unnecessary to repeat it.43 Nonetheless, he made it clear that the position in relation to interests in the continental shelf was different: the Crown’s radical title did not exist below low-water mark. In this context, Brennan CJ cited Keyn as authority for the proposition that ‘[t]he colonists inherited the common law: but it operated only in the realm which ended at low-water mark. . . . Thus, property in and power over the territorial seas could not have come by the common law’.44 His Honour accepted, however, that the power to make laws for the peace, order and good government of a colony was wide enough to enact laws applying to territorial waters and beyond.45 Thus, he drew a distinction between a proprietary interest in the territorial sea and beyond and its seabed, on the one hand, and legislative power and jurisdiction over them, on the other. Accordingly he concluded: 34   P Brazil, ‘The Protection of Resource Rights Below Low Water’ (2000) 19 Australian Mining & Petroleum Law Journal 16, 18. 35   WMC (n 4) [88] (Gaudron J), [151] (McHugh J), [205] (Gummow J). 36   See, eg, YarmirrFC (n 5) [492]. 37   WMC (n 4) [14]. 38   ibid [24]. 39   ibid [14]. 40   See ibid where Brennan CJ stated that the question was: ‘If the statute [was] amended so that the rights [were] diminished, [did] the diminution amount to an acquisition of property?’. 41   ibid [20]. 42  ibid. 43  ibid. 44   ibid [21] quoting Barwick CJ in NSW v Commonwealth (n 22) 368–69. 45   WMC (n 4) [21] quoting Mason J in NSW v Commonwealth (n 22) 468–69.

202  Radical Title: Lessons from the Sea The [P(SL)A] is a law passed in exercise of the legislative powers of the Commonwealth and a person who seeks and obtains the grant of a permit or licence under that Act cannot deny the authority of the Commonwealth to make the grant, but that is not to say that the Commonwealth has any proprietary interest in the continental shelf or the seas above it.46

Although by municipal law the Commonwealth had power to legislate in respect of the exploration and exploitation of the resources of the continental shelf, it had no property in the continental shelf at common law.47 Thus, Brennan CJ recognised that, in relation to the continental shelf beyond the territorial sea, the Crown has power to grant interests and this power is divorced from any concept of Crown ownership of the underlying estate. Furthermore, the grantee still acquires a proprietary interest. Although this is reminiscent of the conception of radical title as a bare legal title, Brennan CJ’s conclusion that the common law of Australia stops at low-water mark meant that so did the concept of radical title. Instead, the Crown’s interest below low-water mark was statutory in origin and did not confer any beneficial title on the Crown. Brennan CJ’s analysis in this respect is puzzling because it is the very antithesis of his approach in Wik, when he dealt with the statutory power of alienation under the Land Act 1910 (Qld).48 Although the rights under the two legislative regimes are of a similar order, in Wik Brennan CJ was of the view that the Land Act treated the Crown as having not only the power to grant a lease, but also ‘the reversionary interest which, under the ordinary doctrines of the common law, a lessor had to possess in order to support and enforce the relationship of landlord and tenant’.49 Thus, although dealing with a statutory power of alienation, Brennan CJ considered it essential that the Crown have, on exercise of the power of alienation, the full legal reversionary interest. In light of the majority decision in Wik,50 Brennan CJ’s conclusion in WMC that the Crown does not have beneficial ownership of the sea and solum below low-water mark is to be preferred to his conclusion in Wik that the Crown has a full reversionary interest. Indeed, as held by the majority in Wik, the absence of Crown ownership does not necessarily mean that the grantee is denied a full proprietary interest.51 In any event, Brennan CJ’s observations on the application of radical title below low-water mark but within the territorial sea are merely obiter: the question for determination in WMC related to permit areas within the continental shelf beyond the territorial sea. Brennan CJ’s decision is, therefore, only authority for the Crown’s radical title not extending to the continental shelf beyond the territorial sea. Thus, a tripartite distinction emerges between the Crown’s title to land within Australia,52 the Crown’s title to the territorial sea/solum, and the Crown’s title to the continental shelf beyond the territorial sea. It will be seen that interests in land within Australia and within its territorial sea are granted out of the Crown’s title derived from its sovereignty over Australia. Since the Crown has ‘statutory sovereign rights’, rather   WMC (n 4) [22].   ibid [23]. 48   See ch 4 text to nn 165ff, 220ff. 49   Wik (n 2) 93. Brennan CJ was the author of the minority judgment; the judgments of Kirby J and Gummow J, representing the majority of the majority, are considered in ch 4 text to nn 158–64 and 145–57 respectively and n 217 and text. 50   See ch 4 text to n 123ff; Wik (n 2) 128, 129 (Toohey J), 155 (Gaudron J), 189 (Gummow J), 244–45 (Kirby J). 51   See ch 4 text to nn 226–29; ch 3 text to n 354; Wik (n 2) 133 (postscript contained in Toohey J’s reasons and added with the concurrence of the other majority judges). 52   Including the Crown’s title to land up to low-water mark. 46 47



The Territorial Seabed and Beyond Post-Mabo 203

than sovereignty, over the continental shelf beyond the territorial sea,53 a title derived from sovereignty does not support any interest in this area. Nevertheless, it will be seen that while the Crown’s ‘statutory sovereign rights’ beyond the territorial sea and the Crown’s title to the territorial sea do not constitute radical title, there is authority to suggest that the three titles are equivalent. B  YarmirrFC: Full Federal Court YarmirrFC involved two appeals against the judgment of the primary judge, Olney J, which had determined that, although native title existed in the sea and seabed in offshore areas in the vicinity of Croker Island in the Northern Territory, the evidence failed to establish exclusive native title rights to the subject waters.54 The claimants appealed against the rejection of the claim to exclusive possession of the area. The Commonwealth, supported by the Northern Territory and fishingindustry parties, appealed on the ground that native title in the offshore areas claimed was not recognised or protected under Australian law. Relying upon Keyn, counsel for the Commonwealth argued that because the common law did not apply beyond low-water mark, native title in the territorial sea was not capable of recognition by the common law as required by section 223(1)(c) of the NTA. i  The Majority: Statutory Extension of Radical Title and Selective Operation of the Common Law The majority judges, Beaumont and von Doussa JJ, were of the opinion that the appeal failed essentially for the reasons given by the primary judge. They agreed with Olney J that native title in respect of the claimed area was a statutory title brought into existence upon the enactment of the NTA, rather than a native title recognised and protected at common law and, therefore, by the NTA.55 Thus, the Commonwealth’s exercise of legislative power in enacting the NTA gave statutory recognition to native title in the coastal sea provided the conditions for recognition in section 223(1) of the NTA had been met. And this is the critical point: both Olney J and the majority of the Full Court held that, for the purposes of section 223(1)(c), it was sufficient that the common law recognise only the type or kind of right or interest claimed as a native title right and interest.56 This meant that it was not relevant that, as a result of Keyn, the common law could not recognise, give effect to or protect that interest beyond low-water mark. For the majority, the enactment of the NTA gave recognition to the Crown’s acquisition of sovereignty and radical title over the whole area to which the NTA applied. Thus, although the majority found that the common law operated only to low-water mark, they concluded that there was a statutory extension of radical title to the whole area to which the NTA applies. The majority’s insistence on a statutory basis for offshore recognition of native title, however, produces an anomaly when read in the context of their judgment as a whole. Inherent in the majority’s consideration of the nature   SSLA, s 11. See also above text to n 44, below text to n 90.  See Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 (FCA). 55   YarmirrFC (n 5) [56]–[62], esp [62]. 56   ibid [60], [62] (Beaumont and von Doussa JJ); Yarmirr (No 2) (n 54) 551 (Olney J). 53 54

204  Radical Title: Lessons from the Sea of common law public rights to fish/navigate in tidal waters is their acceptance that certain rights in tidal waters and the high seas have a common law basis. In explaining the nature of the public right to fish, the majority referred to the common law position detailed by the High Court in Harper v Minister for Seas Fisheries.57 Accepting that the English common law right in each member of the public to fish in tidal waters was received into Australia, the majority quoted Brennan J’s explanation, in Harper, of the potential regulation of the right to fish: Although there is authority for the view that the public right of fishing is sustained by the Crown’s title to the subsoil . . . the competence of a State legislature to make laws regulating a right of fishing in such waters is not dependent upon the State’s possession of a proprietary right in the bed of the seas or rivers over which such waters flow. . . . ‘[T]here is a broad distinction between proprietary rights and legislative jurisdiction’58

Referring to the nature of the common law right to navigate, the majority agreed with the statement of Olney J that ‘[t]he common law . . . recognises a public right of navigation . . . This right evolved before Magna Carta and is therefore a right distinct in its origin from the right of innocent passage in international law’.59 If the operation of the common law extends to the territorial sea in these situations, any legal basis for denying its extension to other areas of the law, including the law relating to native title, must be expressed in unequivocal terms.60 However, having found that there is a statutory extension of radical title to the territorial sea, the question whether the common law applied below low-water mark was irrelevant. The majority’s judgment, like Brennan CJ’s in WMC, is, therefore, not authority for the proposition that radical title does not extend to the territorial sea/seabed. Nonetheless, the distinction which the majority drew between ‘proprietary rights and legislative jurisdiction’ in the context of the Crown’s title to the seabed suggests that the concept of radical title (at least in its statutorily extended form) does not confer property rights. Indeed, such a distinction was also drawn by Brennan CJ in WMC vis-a-vis ‘statutory sovereign rights’ beyond the territorial sea.61 In the context of its statutory extension to the territorial sea, therefore, radical title is merely legislative jurisdiction. Indeed, the statutory extension of radical title to the territorial sea indicates that, apart from statute, radical title is equivalent to the Crown’s title to the seabed: a proposition unequivocally adopted by Merkel J. ii  Merkel J: Common Law Sovereign Rights Equivalent to Radical Title In his dissenting judgment, Merkel J embraced a different construction of section 223(1) of the NTA: it remained an essential element in establishing native title that the rights claimed in relation to a particular area of land or waters were rights recognised by the common law of Australia.62 According to this approach, if there was no common law   Harper v Minister for Seas Fisheries (1989) 168 CLR 314 (HCA).   YarmirrFC (n 5) [208] (Beaumont and von Doussa JJ) quoting Harper (n 57) 330. The words ‘there is a broad distinction between proprietary rights and legislative jurisdiction’ are from Attorney-General of Canada v Attorney-General of Ontario [1898] AC 700 (PC) 709 (Lord Herschell). 59   Yarmirr (No 2) (n 54) 593 quoted in YarmirrFC (n 5) [216] (Beaumont and von Doussa JJ). 60   See the approach of the majority of the High Court in Yarmirr (n 3) discussed below text to n 108ff. 61   See above text to n 46. 62   YarmirrFC (n 5) [396]. 57 58



The Territorial Seabed and Beyond Post-Mabo 205

recognition of native title below low-water mark, there would be no basis under the NTA for recognition of native title beyond low-water mark. Notwithstanding this conclusion, however, Merkel J rejected the contention that this necessarily entailed the consequence that recognition of native title offshore was prevented by Keyn.63 In doing so, Merkel J considered the role of international and municipal law in relation to the territorial sea64 and concluded: [B]y 1930 the common law [of Australia] had adopted and received the principles of inter­ national law that a coastal state had sovereignty over its territorial sea, of at least three nautical miles, and that sea formed part of the territory of the adjacent coastal state.65

Merkel J added that if he was in error in so concluding, then the territorial sea fell under Australia’s sovereignty at the latest in 1973 upon the enactment of the SSLA.66 In reaching this conclusion, Merkel J accepted that ‘a state’s sovereignty, legal competence and jurisdiction, including the operation of the common law is, at least, co-extensive with the state’s territory including its territorial sea’67 For Merkel J: As the sovereignty of [Australia], whether under the common law or pursuant to [the SSLA], extended to the territorial sea the Commonwealth made its common law ‘extend over the territorial sea.’ Thus, subject to two qualifications, as and when sovereignty vested in and was exercisable by the Crown in right of the Commonwealth in the territorial sea, the common law applied within the same boundaries.68

The first qualification is particularly relevant for present purposes.69 Pursuant to it, ‘the application of the common law is subject to abrogation of, or modification to, the common law in relation to the territorial sea by statutes of the Commonwealth, the States and the Northern Territory’.70 Merkel J explained that some statutes, including the P(SL)A71 and the Offshore Minerals Act 1994 (Cth),72 provided for the common law to apply in the territorial sea subject to the conditions laid down in the Acts. Although such statutes regulate how the common law is to apply, they do not evidence a legislative intent to exclude the common law from otherwise applying.73 This analysis has signific­ ant implications when considered against Brennan CJ’s reasoning in WMC. In WMC, Brennan CJ distinguished between the P(SL)A and the various state and territory Land Acts on the ground that only the Land Acts assumed the existence of the Crown’s common law radical title.74 Although, prima facie, it appears that Merkel J’s approach of extending the common law to the territorial sea would entail the consequence that the Crown acquired a radical title to the territorial sea, it will be seen that this is not the case. Nevertheless, it will also be seen that Merkel J’s approach achieves the very result that would be achieved if the Crown’s radical title did extend to the territorial sea.   ibid [411].   ibid [412]–[455]. 65   ibid [456]. 66   ibid [457], [463]. 67   ibid [481]. 68   ibid [483]. 69   For the second qualification see ibid [487]. 70   ibid [484]. 71   See esp s 9. 72   See esp s 428. 73   YarmirrFC (n 5) [484]. 74   WMC (n 4) [20]. See also above text to n 42. 63 64

206  Radical Title: Lessons from the Sea Merkel J articulated his views on radical title when considering the Commonwealth’s contention that, since the Crown has no radical title in respect of the territorial sea, the basis for recognition of native title by the common law vis-a-vis the sea is absent.75 Merkel J described radical title as ‘the bundle of ultimate or paramount rights or powers acquired over land by the sovereign upon acquiring sovereignty’.76 The rights so acquired were ‘a concomitant of the supreme legal authority in and over the territory over which sovereignty had been acquired’.77 Merkel J also observed that the rights fell short of absolute beneficial ownership if burdened by pre-existing native title.78 Although this observation appears to suggest that, except to the extent of native title, radical title amounts to absolute beneficial ownership of land, Merkel J’s subsequent analysis denies such a view. Referring to Brennan J’s judgment in WMC, Merkel J explained: Putting to one side the seabed, under international and municipal law the sovereign does not acquire radical title to the territorial sea or to the internal waters upon the acquisition of sovereignty over that area . . . However, subject to the constraints of international law the Crown’s enjoyment of supreme authority results in the sovereign enjoying the bundle of ultimate or paramount rights or powers acquired over the sea upon acquisition of sovereignty . . . Whilst those rights and powers do not constitute radical title they are equivalent to the ultimate and paramount rights and powers gained over land by the sovereign upon gaining sovereignty. (emphasis of ‘equivalent’ added) 79

Although this conclusion was based on statutory recognition of native title in respect of the sea, Merkel J expressly observed that he would have arrived at the same conclusion at common law: In my view the Crown’s paramount title in respect of land and its paramount rights in respect of the sea are so closely related for the purposes of native title that I do not accept that there is any valid reason for the common law recognising native title in respect of land but not in respect of the sea.80

Thus, it was only because of Brennan CJ’s declaration in WMC that the Crown did not acquire a radical title beyond low-water mark that Merkel J distinguished between the Crown’s radical title to land and the Crown’s paramount or ‘sovereign right’81 to the sea.82 Nonetheless, the crucial point is that Merkel J’s observations on the juridical nature of the Crown’s ‘sovereign rights’ also apply to the Crown’s radical title. In this context, Merkel J found that it was unnecessary to determine whether the Crown had ownership or proprietary rights in the territorial seabed. He did note, however, that this was a question on which divergent views had been expressed.83 Furthermore, he concluded that since:   YarmirrFC (n 5) [491] (Merkel J).   ibid [493]. 77  ibid. 78   ibid. See also ibid [339], [399], [471]. 79   ibid [494] citing in support of the first sentence WMC (n 4) [18]–[20] (Brennan J) and in support of the second sentence NSW v Commonwealth (n 22) 364 (Barwick CJ), 475 (Mason J). 80   YarmirrFC (n 5) [500]. 81   Merkel J uses this expression: ibid [339], [399], [401], [471], [505]. 82   ‘Sovereign rights’ is also used in a broader sense to designate all of the Crown’s rights as sovereign, which include the Crown’s radical title to land. 83   YarmirrFC (n 5) [502]–[505] citing Attorney-General of British Columbia v Attorney-General of Canada [1914] AC 153 (PC) 174 (Viscount Haldane LC), NSW v Commonwealth (n 22) 397–400 (Gibbs J), 433 (Stephen J), 487 (Jacobs J), 367–68 (Barwick CJ), 465–66 (Mason J) and Robinson v Western Australian Museum (n 26) 337 (Mason J). 75 76



The Territorial Seabed and Beyond Post-Mabo 207 [N]ative title can burden the Crown’s sovereign rights in respect of the territorial sea it must follow that it can likewise burden these rights in respect of the underlying solum whether or not the Crown has ownership or proprietary rights in either. The burden on the ‘sovereign rights’ of the Crown in respect of the territorial sea and internal waters is no different qualitatively or quantitatively to the burden on the Crown’s radical title in respect of land with the consequence that native title rights in the sea and waters, although enforceable, are as vulnerable to legislative and executive extinguishment as are rights in the land.84

Merkel J neglected to mention another, arguably more important, consequence following from the equation of the Crown’s ‘sovereign rights’ and the Crown’s radical title: if the Crown’s ‘sovereign rights’ do not necessarily confer ownership on the Crown, neither does radical title. Although Merkel J technically denies that the Crown acquires a radical title to the territorial sea/seabed, his analysis achieves the same result. Moreover, given Merkel J’s conclusion that the common law applies in respect of the territorial sea, there appears to be no legal justification for denying that, by the common law, the Crown acquires a radical title to this area. Nevertheless, according to Merkel J, the P(SL)A regulates the common law and thus assumes the existence of the Crown’s ‘sovereign rights’ to land lying below low-water mark. Since the Crown’s ‘sovereign rights’ are equivalent to the rights and powers that constitute radical title, the concept of ‘sovereign rights’ is necessarily sufficient to support the alienation of interests in the territorial seabed and to found the Crown’s beneficial title to that land: the absence of Crown ownership in the context of the Crown’s radical title or ‘sovereign rights’ does not weaken the property rights acquired by a grantee. In contradistinction to Brennan CJ’s conclusion in WMC, therefore, the P(SL)A could be regarded as an offshore equivalent to the various Australian Land Acts. Indeed, Merkel J’s approach is consistent with Brennan CJ’s treatment in Wik of the Crown’s statutory power of alienation relating to land. Furthermore, in WMC, Brennan CJ was of the view that because the P(SL)A did not purport to declare the Crown’s property in the continental shelf (either within the territorial sea or beyond), the Crown did not have ownership of that area as a result of having ‘sovereign rights’ to the area – but that, nevertheless, the Crown had an undoubted power to grant interests in the area. Thus, Brennan CJ’s conception of statutory ‘sovereign rights’ is analogous to Merkel J’s conception of common law ‘sovereign rights’, which is itself equivalent to radical title.85 It will be seen that Kirby J’s analysis in WMC, where he was one of the dissenting judges, assumes that, upon acquisition of sovereignty, the Crown acquires a radical title to the territorial sea/seabed.86

  YarmirrFC (n 5) [505].   There is, therefore, no justification for using the absence of radical title to deny holders of offshore petroleum permits a proprietary interest protected by the Constitution: Brazil, ‘The Protection of Resource Rights Below Low Water’ (n 34) 20. 86   See below text to n 89. Merkel J’s analysis accords with older colonial and English authorities that supported the common law’s extension to the territorial sea: see above nn 19–20 and text. 84 85

208  Radical Title: Lessons from the Sea C  WMC: The Other High Court Judges – Common Law Extension of Radical Title to the Territorial Sea It is important to note that Merkel J’s analysis in YarmirrFC was limited to the territor­ ial sea, whereas WMC concerned statutory sovereign rights exercised by Australia in the continental shelf beyond the territorial sea. Furthermore, Merkel J’s conception of the Crown’s ‘sovereign rights’ has both a common law and a statutory basis, whereas Brennan CJ’s reference to ‘sovereign rights’ in WMC only presupposes a statutory basis. For these reasons and because of the tripartite distinction between the Crown’s title to land, the territorial sea/seabed and the sea/seabed beyond the territorial sea, the dissenting judgment of Kirby J in WMC, supported by the tenor of the judgments of Toohey J,87 Gaudron J and Gummow J,88 provides a principled approach. For Kirby J, the true legal position was that: By international law relevant ‘sovereign rights’ devolved upon Australia. By valid municipal law, the Parliament provided for the exercise of such sovereign rights for the purpose for which they were given, namely exploration and exploitation of the resources of the sea and seabed. Also by valid municipal law, the Parliament enacted that the sovereign rights were vested in and exercisable by the Crown in right of the Commonwealth. It was out of that vested right that the [exploration] permits were granted . . . The vesting of such rights was sufficient to sustain the validity of the permits without the need to posit a fiction of feudal land law or to expand the Crown’s radical title beyond the territorial sea into the continental shelf. The absence of this fiction does not weaken the property rights acquired by a permittee. Those rights derived their character from the terms in which they were expressed in the Act creating them [the P(SL)A].89 (emphasis added)

Thus, Kirby J assumed that radical title extends to the territorial sea and that the concept of ‘statutory sovereign rights’ is only relevant in respect of the sea/seabed beyond the territorial sea. Nevertheless, it appears that, like Merkel J, Kirby J equated the two concepts; his approach regarding the juridical nature of the concept of ‘statutory sovereign rights’ conforming with his approach in Wik regarding the juridical nature of radical title. It was seen in chapter four that, in Wik, Kirby J explained that the grant of the relevant leases was regulated by the Queensland Land Acts and that these Acts did not expressly confer on the Crown the estate necessary to grant a lease.90 Similarly, in WMC, Kirby J’s conception of ‘sovereign rights’ allowed the Crown to grant exploration permits in the absence of any Crown ownership of the continental shelf beyond the territorial sea. For Kirby J, however, in the context of both ‘radical title’ and ‘statutory sovereign rights’, the absence of Crown ownership did not detract from the property rights acquired by a grantee.91 Nevertheless, like Merkel J, Kirby J considered that the   As the other dissenting judge: see WMC (n 4) [53]–[58].   As members of the majority: see ibid [158]–[161], [179]–[204] (Gummow J), [78]–[87] (Gaudron J). 89   ibid [244]. 90   That is, to invent the notion that the power conferred on the Crown to grant a leasehold interest was an indirect way of conferring on the Crown ‘ownership’ of the land by means of the reversion expectant involved a highly artificial importation of feudal notions into Australian legislation. The fact that Parliament had said that the Crown’s power to make such a grant existed was sufficient. Thus, the Crown’s power to grant interests in land was not dependent on the Crown’s ownership of that land: see ch 4 text to nn 161–64. 91   WMC (n 4) [244]. Kirby J’s analysis of the P(SL)A in WMC demonstrated that ‘the clear object of the Act was to afford permittees the kind of stable “title” to property rights which . . . would be necessary if investors were to be attracted to risk substantial venture capital’: [241]. 87 88



The Territorial Seabed and Beyond Post-Mabo 209

question whether or not the Commonwealth had ownership rights in the seabed was irrelevant.92 He made it clear that where the Crown has ‘sovereign rights’, the Crown has a vested interest. Although not proprietary, such interest is, however, vested in interest rather than vested in possession. It will only become vested in possession upon the appropriate exercise of sovereign power.93 Importantly, Kirby J’s approach in WMC is consistent with that of Gummow J who, as a member of the majority, implicitly attributed to the Crown a radical title to the territorial sea.94 Drawing a distinction between the concept of ‘sovereignty’ as used in sections 6 and 11 of the SSLA,95 in WMC Gummow J concluded that sovereignty referred to in section 6, which deals with sovereignty in respect of the territorial sea, seabed and subsoil, is a stronger term than the term ‘sovereign rights’ used in section 11, which deals with the continental shelf.96 Thus, there are degrees of ‘sovereignty’.97 To emphasise the distinction between sovereignty and ‘sovereign rights’, Gummow J referred to the analogy provided by the distinction which Jacobs J drew in NSW v Commonwealth between the vesting in the Crown, as part of England, of the foreshore between high- and low-water and the beds of all waters intra fauces terrae over which tidal waters flowed, on the one hand, and the rights asserted by the English Crown over the open seas, on the other.98 ‘In the former case, but not the latter, the foreshore and associated areas were vested in the Crown under the common law and were subject thereto and could be held under rights springing from the common law’.99 It appears, therefore, that the various degrees of sovereignty correspond with the application of the common law: where the Crown has sovereignty, as opposed to ‘sovereign rights’, the common law applies. Thus, since the Crown’s sovereignty over the foreshore and associated areas has never been doubted, the common law applied to vest these areas in the Crown. Since it is now accepted that the Crown’s sovereignty extends to the territorial sea, the common law similarly applies to this area.100 Because the Crown’s sovereignty does not extend beyond the territorial sea, the Crown acquires ‘sovereign rights’ to this area. Although Gummow J did not specifically address the question of whether the rights constituting radical title and ‘sovereign rights’ are equivalent, he did provide some insight into the juridical nature of these two titles. Gummow J’s conception of ‘sovereign rights’ allows the Crown to grant interests in respect of the continental shelf (as radical title does in respect of land). Moreover, since the concept of sovereignty vis-a-vis   WMC (n 4) [247].   On this issue see U Secher, ‘The Legal Nature of the Crown’s Title on the Grant of a Common Law Lease Post-Mabo: Implications of the High Court’s Treatment of the “Reversion Expectant” Argument – Part 1’ (2006) 14 Australian Property Law Journal 1, text to n 28ff. 94   See below text to nn 100–03. 95   Section 6 provided: ‘the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth’. Section 11 provided: ‘the sovereign rights of Australia . . . in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth’. 96   WMC (n 4) [160]. 97   This approach is supported by Barwick CJ’s discussion of these concepts in NSW v Commonwealth (n 22) 364. 98   WMC (n 4) [161] citing NSW v Commonwealth (n 22) 486–90 (Jacobs J). 99   WMC (n 4) [161] citing NSW v The Commonwealth (n 22) 486–87 (Jacobs J). 100   cf Gummow J’s distinction as part of the majority in Yarmirr between radical title to land and sovereign rights to the territorial sea, discussed below text following n 116ff. 92 93

210  Radical Title: Lessons from the Sea the territorial sea is a stronger concept than ‘sovereign rights’ vis-a-vis the continental shelf, it would necessarily follow that the juridical nature of ‘sovereign rights’ cannot encompass more than the juridical nature of the title acquired upon acquisition of sovereignty – namely, radical title to land, or Merkel J’s ‘common law sovereign rights’ to the territorial sea, or the majority of the Full Court’s statutory extension of radical title to the territorial sea in YarmirrFC. In accordance with Gummow J’s analysis of radical title in Wik,101 therefore, ‘sovereign rights’ must connote a bare nominal title, ‘a postulate to support the exercise of sovereign power’, or something less.102 Thus, absolute beneficial Crown ownership would be established not by the acquisition of ‘sovereign rights’ but by the subsequent exercise of the authority of the Crown.103 Furthermore, Gummow J’s obiter observation that the permits could give rise to proprietary rights, indicates that the Crown can, in exercise of its ‘sovereign rights’, confer property rights in the absence of Crown ownership. III SUMMARY

It has been seen that, pre-Mabo, although it was not entirely clear whether the Crown had property rights below low-water mark, the source of the Crown’s title was not the common law. It has also been seen that, post-Mabo divergent views on the question of the Crown’s property rights below low-water mark continued to be expressed in WMC and YarmirrFC. What was clear pre-Yarmirr, was that the courts had drawn a distinction between the Crown’s title to: land;104 the territorial sea/solum; and the continental shelf beyond the territorial sea. Although there was no doubt that the Crown acquired a radical title to land and ‘statutory sovereign rights’ to the continental shelf, the description of the Crown’s title to the territorial sea was not so clear. Indeed, three different classifications of the Crown’s title to the territorial sea had emerged: first, while the majority in YarmirrFC agreed with Brennan CJ in WMC that the common law (and thus radical title) does not extend below low-water mark, they nevertheless held that there was a statutory extension of radical title to the territorial sea. Secondly, although Merkel J, dissenting in YarmirrFC, also followed Brennan CJ’s decision in WMC to deny the Crown a radical title below lowwater mark, in contradistinction to the YarmirrFC majority, he applied the concept of common law sovereign rights to describe the Crown’s title to the territorial sea. Thirdly, in WMC Kirby J expressly, and Gummow J implicitly, attributed to the Crown a radical title to the territorial sea. Crucially, however, pre-Yarmirr there was considerable authority for the proposition that, irrespective of the classification of the Crown’s title to the territorial sea, the legal  See Wik (n 2) 186–99.   ibid 186. 103   ibid: ‘Absolute and beneficial Crown ownership, a plenum dominium, [is] established not by the acquisition of radical title but by subsequent exercise of the authority of the Crown’. Note that while the grant of a common law lease may extinguish native title because the rights created by grant are inconsistent with native rights, this does not have any significance for the Crown’s title: see U Secher, ‘The Legal Nature of the Crown’s Title on the Grant of a Common Law Lease Post-Mabo: Implications of the High Court’s Treatment of the “Reversion Expectant” Argument – Part 2’ (2006) 14 Australian Property Law Journal 31, 43 (text to fn 55). 104   Although this appeared to include the Crown’s title to land up to low-water mark, it will be seen that, postYarmirr, the Federal Court distinguished between title to land and the ‘intertidal zone’: below text to n 186ff. 101 102

Yarmirr: The High Court 211 nature of the title was the same: the concepts of ‘radical title’ and ‘sovereign rights’, whether common law or statutory, are analogous. In the next section it will be seen that uncertainty about the Crown’s title below low-water mark caused by contradictory decisions rendered both pre- and post-Mabo was finally resolved by the High Court in Yarmirr in a way that most closely resembles (although it does not go as far as) the approach adopted by Merkel J in YarmirrFC. Although the Yarmirr High Court did not address the intertidal zone,105 it has been seen that the YarmirrFC Full Federal Court attributed a statutory extension of radical title in respect of the whole area to which the NTA applies, including the intertidal zone. Furthermore, since the Full Court acknowledged that the common law operated to lowwater mark, the Crown acquired a radical title to the intertidal zone at common law. It will be seen that in Gumana v Northern Territory,106 the Federal Court made some important observations regarding the common law status of the Crown’s title to the intertidal zone. Crucially, the developments in Gumana further support the proposition that the legal nature of the Crown’s title to the sea is analogous to the Crown’s title to land. Further support for this proposition is also provided by the Federal Court’s decision relating to native title to the sea, Akiba,107 in the context of the Crown’s acquisition of sovereignty to the Exclusive Economic Zone beyond the territorial sea. IV  YARMIRR: THE HIGH COURT

It has been seen that the majority in YarmirrFC upheld the trial judge’s finding that native title did exist in relation to the territorial sea.108 In Yarmirr, the Commonwealth contended that the Full Court ‘erred in that it wrongly construed the [NTA] so as to provide the basis for recognition of native title beyond the limits of the Northern Territory’.109 By a majority of five to two, the High Court dismissed the Commonwealth’s appeal.110 A joint judgment by Gleeson CJ, Gaudron, Gummow and Hayne JJ constituted the principal majority judgment, while the other member of the majority, Kirby J, delivered a separate judgment.111 A  Principal Majority Judgment i  Territorial Reach of the Common Law The principal majority made it clear that the common law can extend to the territorial sea. In this context, the majority explained that Keyn112 and British South Africa Co v 105   Yarmirr (n 3) [73] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See the definition of ‘intertidal zone’ above n 6. 106   Above n 6. 107   Above n 10. 108   Above text to n 54ff. 109   Yarmirr (n 3) [331] (Callinan J). 110   See below text to n 134ff. 111   Although both McHugh J and Callinan J dissented, only McHugh J expressly held that the ‘common law does not operate outside the realm’: Yarmirr (n 3) [179], see also [104], [174]. 112   The majority explained that Keyn (n 19) ‘established that, absent statutory authority, a criminal court cannot punish as criminal, conduct which happens beyond the low-water mark on vessels flying the flag of a foreign state’: Yarmirr (n 3) [30] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

212  Radical Title: Lessons from the Sea Companhia de Moçambique 113 merely provided examples of actions, about status and rem respectively, in which the common law did not extend beyond low-water mark because of the particular questions intruding in those cases.114 Crucially, for the majority, the Moçambique principle demonstrated that the common law does not have a limited territorial operation.115 The majority did not, therefore, go as far as Merkel J in YarmirrFC, who held that the common law does apply in respect of the territorial sea. Rather, the majority adopted an incremental approach: although the common law does not necessarily end at the low-water mark, whether the common law does extend to the territorial sea must be determined on a case-by-case basis. Nevertheless, the majority of the High Court also made it clear that although the common law applied, this did not mean that the Crown had a radical title in respect of the territorial sea. ii  Radical Title versus Common Law Sovereign Rights The majority considered the role of radical title in the process of examining one of the fundamental principles underlying the Commonwealth’s submissions: that native title could not exist without the Crown having radical title to the area in respect of which the native title was claimed. For the Commonwealth, the legal concept of radical title had a ‘controlling role’.116 Such a role was, however, rejected by the majority. Instead, the majority drew a distinction, not unlike Merkel J, between ‘radical title to land’ and ‘sovereign rights to the territorial sea’. The majority explained that since native title is not created by nor derived from the common law, radical title is not a necessary prerequisite to the conclusion that native title exits. Rather, the concept of radical title provides an explanation in legal theory of how the two concepts of sovereignty over land and native title co-exist.117 The concept of radical title is, therefore: [A] tool of legal analysis which is important in identifying that the Crown’s rights and interests in relation to land can co-exist with native title rights and interests. But it is no more than a tool of analysis which reveals the nature of the rights and interests which the Crown obtained on its assertion of sovereignty over land.118

For the majority, it did not follow that it was ‘essential, or even appropriate, to use the same tool in analysing the altogether different rights and interests which arose from the assertion of sovereignty over the territorial sea’.119 Rather: The inquiry must begin by examining what are the sovereign rights and interests which were and are asserted over the territorial sea. Only then can it be seen whether those rights and inter113   British South Africa Co v Companhia de Moçambique [1893] AC 602 (HL). See Yarmirr (n 3) [32] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). The majority explained that Moçambique merely ‘established that the civil courts will not entertain (at least some) actions in respect of immovables in a foreign country or “a dispute involving the title to foreign land”’: ibid [33]. 114   Yarmirr (n 3) [35]: ‘the fact . . . that the events occurred outside Australia does not of itself, and without more, bar relief. Questions may intrude in actions about status or in actions in rem of a kind which do not arise in personal actions. As Keyn demonstrates, other questions do intrude in criminal matters. But, importantly, the Moçambique principle demonstrates that the common law does not have only a limited territorial operation’. 115  ibid. 116   ibid [49]. 117   ibid [48]. 118   ibid [49]. See also Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58, (2002) 214 CLR 422 [38] (Gleeson CJ, Gummow and Hayne JJ). 119   Yarmirr (n 3) [50] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

Yarmirr: The High Court 213 ests are inconsistent with the native title rights and interests which . . . are claimed.120 (emphasis added)

Thus, although radical title is a concomitant of sovereignty over land, the High Court majority identified ‘sovereign rights and interests’ as a concomitant of sovereignty over the territorial sea: ‘sovereign rights and interests’ is a common law concept which, it will be seen, is not dissimilar to the concept of common law sovereign rights identified by Merkel J. Nevertheless, the majority found it unnecessary to attempt a comprehensive definition of the powers, rights and interests which Australia claims, or the Imperial authorities claimed, in respect of the territorial sea.121 Although inquiries about those powers, rights and interests are usually expressed in terms of ‘sovereignty’, the majority noted that ‘sovereignty’ is a ‘notoriously difficult concept which is applied in many, very different contexts’.122 Nonetheless, and despite distinguishing Keyn to hold that the common law does not necessarily end at low-water mark, the majority relied on Keyn to deny ‘that the sovereignty claimed amounted to a claim that the area was “owned” by the Crown’.123 There was, however, no doubt that, as a matter of municipal law, the Imperial authorities claimed the right to legislate in respect of the territorial sea of both Britain and its colonies.124 The majority accepted: [T]hat the claimed authority over the area extended, if thought appropriate, to a power to legislate for the grant of ownership or lesser rights in respect of the area, but no such legislation was enacted and no grants of ownership were made.125

In order to support their conclusion that sovereignty over the territorial sea does not confer beneficial title, the majority considered aspects of both international and municipal law. The acquisition of sovereignty over the territorial sea occurred by international law because Britain was the internationally recognised nation holding sovereignty over the adjoining land mass.126 ‘As a matter of international law’, stated the majority, ‘the right of innocent passage is inconsistent with any international recognition of a right of ownership by the coastal state of territorial waters’.127 It was clear, therefore, ‘that at no time before federation did the Imperial authorities assert any claim of ownership to the territorial sea or sea-bed’.128 By municipal law, the acquisition of sovereignty was a claim made in exercise of the prerogative.129 The majority observed, however, that the Crown’s prerogative rights in relation to the territorial sea were limited in some important respects: The most relevant of those limitations were the public rights of fishing in the sea and in tidal waters and the public right of navigation. . . . Whatever may be the origins of those rights, no   ibid [501].   ibid [52]. 122   ibid [52]. 123   ibid [55] also stating that Keyn (n 19) had held that ‘the sea within three nautical miles of the coast, although internationally recognised as territorial sea subject to British sovereignty, is not within the territory of England’. 124   Yarmirr (n 3) [55] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 125  ibid. 126   ibid [59]. 127   ibid [57]. 128   ibid [59]. 129   ibid [60]. 120 121

214  Radical Title: Lessons from the Sea party or intervener disputed their existence and no party or intervener submitted that the sovereign rights asserted in 1824 [(when Britain acquired sovereignty over the Northern Territory)] did not acknowledge the continuation of those rights.130

Accordingly, the majority concluded that the nature of sovereignty asserted in 1824 was such as to show that at that time (subject to [the] important qualification [of public rights of navigation and fishing]) there was no necessary inconsistency between the rights and interests asserted by the Imperial authorities and the continued recognition of native title rights and interests.131

The majority explained that the qualification was required because: [T]he rights and interests asserted at sovereignty carried with them the recognition of public rights of navigation and fishing and, perhaps, the concession of an international right of innocent passage. Those rights were necessarily inconsistent with the continued existence of any right under Aboriginal law or custom to preclude the exercise of those rights.132

In all other respects, however, the majority found that there was no necessary inconsistency and, importantly, there was no need to ‘resort to notions of radical title to explain why that [was] so’.133 Before examining the Yarmirr High Court’s treatment of ‘radical title’, it is important to note that the qualification on the recognition of native title rights was crucial: it presented a ‘fundamental difficulty standing in the way of the claimants’ assertion of entitlement to exclusive rights of the kind claimed’.134 a  Introduction of a ‘Double’ Inconsistency of Incidents Test to Deny Exclusive Non-Crown Derived Native Title to the Sea The High Court’s analysis proceeded on the assumption that common law public rights to fish/navigate and the international right of innocent passage are rights which cannot co-exist with any rights to exclude all others.135 Although accepting that neither the public right to navigate nor the right of innocent passage require free access to every part of the territorial sea,136 the High Court nevertheless observed that the tension between, on the one hand, the rights to ‘occupy, use and enjoy the waters of the determination area to the exclusion of all others’ and ‘to possess’ those waters to the exclusion of all others . . . and, on the other, the rights of fishing, navigation and free passage is self-evident.137

By focusing on the nature and extent of the inconsistency between the asserted native title rights and the relevant common law principles,138 the High Court concluded that the ‘two sets of rights cannot stand together and it is not sufficient to attempt to reconcile   ibid [60].   ibid [61]. 132   ibid. The common law recognises public rights of fishing/navigation: ibid [98]–[100]. See also Yarmirr (No 2) (n 54) 593 (Olney J); Western Australia v Ward [2002] HCA 28, (2002) 213 CLR 1 [388] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 133   Yarmirr (n 3) [61] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 134   ibid [94]. See also ibid [86]–[88], [93]. 135   ibid [94]. 136   ibid [96]. 137   ibid [96]. See NTA s 225 for what is included in a determination of native title. 138   Yarmirr (n 3) [97] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 130 131

Yarmirr: The High Court 215 them by providing that exercise of the native title rights is to be subject to the other public and international rights’.139 With respect, however, this conclusion fails to appreciate the pre-Magna Carta position in relation to Crown grants of exclusive fisheries which were made subject to public rights of navigation. b  Two Objections to Non-Recognition of Exclusive Native Title Rights to the Sea 1 Pre-Magna Carta Grants of Exclusive Fisheries Public rights of fishing/navigation evolved before Magna Carta and are, therefore, distinct in origin from the right of innocent passage in international law.140 Nevertheless, before the grant of several or exclusive fisheries was prohibited by Magna Carta it was clear that the bed of the sea, ‘and a fortiori the beds of tidal navigable rivers [could] be granted by the Crown to the subject’.141 In such a case, however, the grantee’s rights had to be reconciled with the public rights: [N]o grant by the Crown of part of the bed of the sea or the bed of a tidal navigable river can or ever could operate to extinguish or curtail the public right of navigation . . . It is also true that no such grant can, since Magna Charta [sic], operate to the detriment of the public right of fishing.142

This is because public rights of fishing/navigation ‘qualify the Crown’s rights in respect of the seabed and the space above it’.143 Crucially, however, there was no objection to the Crown granting exclusive (fishery) rights to the sea provided they were made subject to the public right of navigation: Anterior to Magna Charta [sic], by which such grants [(of several or exclusive fishery)] were prohibited, a several fishery in an arm of the sea or navigable river, might have been granted by the Crown to a subject. . . . And the grant might include a portion of the soil for the purpose of the fishery. But this, like every other grant, whenever made must have been subject to the public right of navigation.144

And the Yarmirr High Court’s erroneous assumption that, at common law, exclusive rights to the sea could not co-exist with public rights applied equally to public rights of fishing and navigation. In the context of the territorial sea, therefore, since the Crown’s title post-Magna Carta is subject to public rights of fishing/navigation as well as native title, the rights of native titleholders would appear to be stronger than those of a mere Crown grantee. That is, if public rights could co-exist with a Crown grant of exclusive rights, a fortiori, they could co-exist with pre-existing exclusive native title rights. Thus, although pre-existing native title rights cannot curtail public rights, they can exist subject to them; any inconsistency is not such that the two sets of rights cannot stand together. Indeed, this is the very conclusion reached by Kirby J in Yarmirr.145   ibid [98].   YarmirrFC (n 5) [217] (Beaumont and von Doussa JJ); Yarmirr (No 2) (n 54) 593 (Olney J). 141   Lord Fitzhardinge v Purcell (n 14) 167 (Parker J). 142   ibid cited in YarmirrFC (n 5) [218] (Beaumont and von Doussa JJ). See also the authorities cited in Gumana (n 6) [64] (Selway J). 143   Risk v Northern Territory [2002] HCA 23, (2002) 210 CLR 392 [127] (Callinan J) summarising the content of the public fishing/navigation rights in Yarmirr (n 3). 144   Gann v Free Fishers of Whitstable (1865) 11 HL Cas 192, 209; 11 ER 1305, 1312 (HL) (Lord Westbury LC). 145   See below text to nn 181–83. 139 140

216  Radical Title: Lessons from the Sea 2  Inconsistency with Mabo’s Presumptive Recognition of Native Title The Yarmirr principal majority conceded that the inconsistency between native title and public rights of fishing/navigation ‘does not arise as a result of the exercise of sovereign power (as is the case where a grant in fee simple extinguishes native title)’.146 This is because: The successive assertions of sovereignty over what now are territorial waters, without any further or other act of the executive or legislature, brought with them, and gave to the public, the public rights that have been mentioned. . . . Assertion of sovereignty, on those terms, is not consistent with the continuation of a right in the holders of a native title to the area for those holders to say who may enter the area.147

Although the inconsistency does not arise as a result of the exercise of sovereign power, the majority held that it was ‘of no different quality’148 because: At its root, [it] lies not just in the competing claims to control who may enter the area but in the expression of that control by the sovereign authority in a way that is antithetical to the continued existence of the asserted exclusive rights.149

With respect, by focusing on inconsistency at sovereignty this analysis is the very antithesis of Brennan J’s presumptive recognition of native title in Mabo.150 Inconsistency at sovereignty is not relevant to initial recognition of native title rights; inconsistency is only relevant to the subsequent question of extinguishment of the presumptively recognised rights. The Yarmirr High Court has, therefore, effectively introduced a new inconsistency of incidents test for initial recognition of native title which is in addition to, and distinct from, the conventional inconsistency of incidents test for extinguishment of native title. The scope of this double inconsistency of incidents test appears to be limited to the sea, because the long-recognised common law public rights of way and common in respect of land have not precluded initial recognition of exclusive native title rights to land. The test is nevertheless inconsistent with the Crown’s undoubted power (preMagna Carta) to grant exclusive fisheries provided they were made subject to the public right of navigation. Indeed, does the distinction, based upon the legal nature of the Crown’s title to ‘land’ and ‘sea’, support different tests for initial recognition of native title? Is a distinction based on whether the Crown has radical title or common law sovereign rights to an area supported by legal principle? This is crucial: although the principal majority’s treatment of ‘sovereign rights’ was essentially the same as Merkel J’s in YarmirrFC, it is not clear whether they also equate such sovereign rights with ‘radical title’. Significantly, however, since the majority   Yarmirr (n 3) [100] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).   ibid [99]. 148   ibid [100]. 149  ibid. 150   See ch 3 text to nn 191, 212; ch 7 text to nn 8, 280 for the effect of the doctrine of ‘continuity pro tempore’ developed by the author and cited with approval by the Federal Court in Gumana (n 6) [121] (Selway J), citing U Secher, ‘The Reception of Land Law into the Australian Colonies Post-Mabo: The Continuity and Recognition Doctrines Revisited and the Emergence of the Doctrine of Continuity Pro-Tempore’ (2004) 27 University of New South Wales Law Journal 703, 720–23. For further criticism of the Yarmirr High Court’s treatment of the inconsistency of incidents test see L Strelein, Compromised Jurisprudence: Native Title Cases since Mabo, 2nd edn (Canberra, Aboriginal Studies Press, 2009) ch 5; Grey, ‘Offshore Native Title: Currents in Sea Claims Jurisprudence’ (n 13) esp 66. 146 147

Yarmirr: The High Court 217 emphasised that ‘radical title’ is not relevant for analysing the rights which the Crown obtained upon acquisition of sovereignty over the territorial sea,151 those aspects of the majority’s judgment which discuss the role of radical title at common law are mere obiter. Nevertheless, such obiter dicta purport, on the one hand, to simply accept the analysis of radical title as exemplified in existing authorities, suggesting that radical title amounts to a full unfettered proprietary right except to the extent of native title. On the other hand, the majority’s obiter comments on the effect of legislative vesting of title to the territorial sea/seabed suggest that radical title is a bare legal title. In the context of the definition of radical title, the majority referred to the Privy Council decisions in St Catherine’s Milling and Lumber Co v R,152 Amodu Tijani v Secretary, Southern Nigeria,153 Attorney-General for Quebec v Attorney-General for Canada154 and the High Court decision in Mabo, observing that a similar analysis of radical title was applied in all of these cases.155 For the majority, this analysis demonstrated how native title survived the Crown’s acquisition of sovereignty over land by: [R]evealing that when the Crown acquired sovereignty over land it did not acquire beneficial ownership of that land in the same way as a subject may, by grant from the Crown, acquire beneficial ownership. What the Crown acquired was a ‘radical title’ to land, a ‘substantial and paramount estate, underlying the [native] title’.156

Thus, the majority of the High Court appeared to accept that, as a legal concept, radical title amounts not to a bare legal title, but rather to a full unfettered proprietary right except to the extent of native title.157 The majority did not, however, refer to the most authoritative decision on the juridical nature of radical title, Wik. It was seen in chapter four that both Kirby J and Gummow J’s examination of the concept of radical title in Wik support the interpretation of radical title as a bare legal title which creates no beneficial entitlement to land.158 Although it was seen that the judgments of both Toohey J and Gaudron J, as the other members of the majority in Wik, also support this interpretation,159 Kirby J and Gummow J’s approach not only represents the majority of the majority in Wik160 – Gummow J is the only member of the Wik High Court who was still a member of the High Court as constituted last year. Significantly, although the Yarmirr High Court did not address Wik, other aspects of the Yarmirr High Court’s analysis are consistent with the Wik interpretation of radical title. In discussing the effect of legislative vesting of title to the seas and seabed in the   Yarmirr (n 3) [49]–[50] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).   St Catherine’s Milling and Lumber Co v R (1888) 14 App Cas 46 (PC). 153   Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 (PC). 154   Attorney-General for Quebec v Attorney-General for Canada [1921] 1 AC 401 (PC) (Star Chrome case). 155   Yarmirr (n 3) [44]–[46] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 156   ibid [47]. 157   cf ch 2 where it was shown that the pre-Mabo Privy Council decisions are not authority for the proposition that the Crown must have a present proprietary estate underlying any pre-existing title. See also U Secher, ‘The Meaning of Radical Title: The Pre-Mabo Authorities Explained – Part 1’ (2005) 11 Australian Property Law Journal 179; U Secher, ‘The Meaning of Radical Title: The Pre-Mabo Authorities Explained – Part 2’ (2005) 11 Australian Property Law Journal 209. 158   See ch 4 text to nn 145–54 (Gummow J), nn 158–64 (Kirby J), n 217 (Gummow J and Kirby J). 159   See ch 4 text to nn 123–39 (Toohey J), nn 140–44 (Gaudron J). 160   Both justices held that no reversion was created by the relevant pastoral leases and the rationale underlying their decisions was the same, based exclusively on the nature of the Crown’s title to land. cf the different rationales underlying Toohey J and Gaudron J’s judgments, which held that, although a reversion was created, it did not confer beneficial ownership: see above nn 158, 159. 151 152

218  Radical Title: Lessons from the Sea Northern Territory, the majority identified section 4 of the Coastal Waters (Northern Territory Title) Act 1980 (Cth) as critical. That section relevantly provided: (1)  By force of this Act, . . . there are vested in the Territory . . . the same right and title to the property in the sea-bed beneath the coastal waters of the Territory . . . and the same rights in respect of the space (including space occupied by water) above that sea-bed, as would belong to the Territory if that sea-bed were the sea-bed beneath waters of the sea within the limits of the Territory.161

Although the majority stated that it was unnecessary to decide what was the right and title that vested in the Territory as a result of section 4(1) of the Act, they observed: If it is appropriate to speak of that right and title in the language of the real property lawyer, the right and title thus vested in the Territory was no more than a radical title; it was not full ownership of the sea-bed or space above it.162 (emphasis added)

Furthermore, the majority noted that, although the Act identified the title which was vested in the Territory as ‘the same right and title the territory had over the seabed beneath waters of the sea within the limits of the Territory’,163 ‘[i]t was not submitted that the right and title to areas of the latter kind was any greater than radical title to land’.164 The majority emphasised, however, that they did not need to decide whether it was appropriate to adopt such terms as radical title in this context.165 Two critical points emerge from the majority’s reasoning: first, since the legislation containing the relevant vesting provision related to the entire territorial sea, rather than simply the area encompassing the native title claim, the majority’s failure to distinguish between the Crown’s title to the area generally and to such of the area as was subject to native title indicates they considered that the title did not, irrespective of the presence of native title, equate with full beneficial ownership. Secondly, by suggesting that the title to the seabed beneath inland waters may be ‘greater than radical title to land’,166 the majority indicated the possible direction the future development of radical title will take. That is, by drawing a distinction between title to ‘land within Australia’ and title to ‘land beneath inland waters’, the majority suggested that although the Crown does not acquire full beneficial title to land by operation of law, it may do so in respect of the seabed beneath inland waters. In any event, the majority made it clear that the common law is, prima facie, coextensive with sovereignty, such that the common law may extend to the territorial sea. Indeed, on the facts of Yarmirr, the common law did extend to the territorial sea. Although there is no doubt that radical title is a concomitant of sovereignty, the new element introduced by the Yarmirr majority was the qualification that radical title is only a concomitant of sovereignty over land, the concept of ‘sovereign rights’ being concomitant of sovereignty over the territorial sea. Accepting the High Court’s distinction between the Crown’s title upon acquisition of sovereignty over land and over the territorial sea, it is, nevertheless, difficult to discern any legal principle to explain why the nature of the two titles is different. That is, if the Crown’s sovereign rights do not   Cited in Yarmirr (n 3) [64] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).  ibid [70]. 163   ibid [71]. 164  ibid. 165   ibid [70]. 166   ibid [71]. See above text to n 164. 161 162

Yarmirr: The High Court 219 automatically confer beneficial ownership of the territorial sea/seabed, why would the Crown’s radical title to land have this effect? Since recognition of sovereign rights, as a concomitant of sovereignty over the territor­ ial sea, does not confer property rights on the Crown even in the absence of native title, neither should recognition of radical title, as a concomitant of sovereignty over land. Indeed, although the majority cautioned that care must be exercised when identifying the Crown’s sovereign rights in respect of the territorial sea because ‘the earliest understandings of sovereign authority over the sea grew out of the then state of legal development, and the absence of any clear distinction between sovereignty and ownership’,167 this concern is equally applicable to the understanding of sovereign authority over land before Mabo.168 The suggestion by the majority in Yarmirr that public rights of fishing/navigation and the international right of innocent passage were necessarily inconsistent with any recognition of a right of ownership by the coastal state of territorial waters,169 fails to appreciate the fact that, before prohibited by Magna Carta, there was no objection to the grant of exclusive rights to the sea provided they were made subject to public rights of navigation.170 Moreover, since the common law has long recognised public rights of way and common in respect of land,171 it would be incongruous for public rights of fishing/navigation to operate so as to distinguish the nature of the Crown’s title to the territorial sea from the nature of the Crown’s title to land.172 Indeed, as Kirby J has noted: ‘[a] recognition of a public right of access would be unsurprising in relation to certain (exclusive) common law land tenures’.173 Furthermore, even on the pre-Mabo assumption that the Crown originally owned all land, including unalienated land, rights of common existed over waste lands;174 any conveyance of the lands to which such rights belonged comprised such rights of common.175 It is suggested, therefore, that Merkel J’s approach in YarmirrFC is preferable to that of the High Court majority: the concept of radical title is a tool of legal analysis which identifies the rights the Crown acquires upon assertion of sovereignty over land, and the concept of sovereign rights is the tool for analysing the rights which arise from the Crown’s assertion of sovereignty over the territorial sea. ‘Whilst [sovereign rights] do not constitute radical title they are equivalent to the ultimate and paramount rights and powers gained over land by the sovereign upon gaining sovereignty’ (emphasis added).176 Whether or not the content of the two concepts, radical title and sovereign rights, is the same, it is clear that the Yarmirr majority treated the two concepts as having distinct   ibid [51].   Moreover, the sovereign rights argument is consistent with the author’s consideration of the pre-Mabo authorities on the nature of the Crown’s title to land subject to pre-existing title: see ch 2 text to n 19ff. 169   Yarmirr (n 3) [57], [61] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 170   See above text to n 140ff. 171   J Williams, Principles of the Law of Real Property, rearranged and partly rewritten by TC Williams, 23rd edn (London, Sweet & Maxwell Ltd, 1920) 31; R Megarry and HWR Wade, The Law of Real Property, 5th edn (London, Stevens & Sons Ltd, 1984) 843–47. 172   Rights of common include turbary, pasture and piscary: Williams, Principles of the Law of Real Property (n 171) 461. 173   Yarmirr (n 3) [281]. 174   Williams (n 171) 462. 175   Deane and Gaudron JJ’s observation in Mabo (n 1) 101 that, upon acquisition of sovereignty, it was ‘conceivably’ the whole of the lands of Australia that were affected by native title would also deny automatic beneficial ownership of any land in Australia. 176   YarmirrFC (n 5) [494] (Merkel J). See also above quotes to nn 79, 164. 167 168

220  Radical Title: Lessons from the Sea spheres of operation at common law: the former restricted to land, the latter restricted to the territorial sea. Nevertheless, the majority suggested that subsequent legislative vesting of title to the territorial sea has conferred a ‘radical title-like’ title on the Crown: that there was a statutory extension of radical title to the territorial sea.177 The crucial point is, however, that whether the Crown’s title to the territorial sea was regarded as amounting to sovereign rights or radical title, the same result was achieved.178 For present purposes, the significance of equating radical title with sovereign rights is that such equation necessarily rejects the proposition that, in the absence of native title, radical title confers beneficial ownership.179 Although the principal majority in Yarmirr found it unnecessary to decide whether it was appropriate to adopt such terms as radical title in the context of the legislative vesting of title to the territorial sea/seabed,180 Kirby J, as the other member of the majority, adhered to his views in WMC: not only is radical title relevant to defining the Crown’s title to the territorial sea but the basis for such extension of radical title can be found in the common law.181 While Kirby J agreed with the principal majority that the common law could recognise native title rights below low-water mark, he disagreed with them on the question of whether the claimants’ native title rights over the territorial sea were exclusive in nature, and attributed a ‘qualified exclusive’ nature to the rights.182 In line with the pre-Magna Carta authorities on Crown grants of exclusive fisheries subject to public rights of navigation, Kirby J was prepared to acknowledge that exclusive native title rights, subject to the public rights, could exist in relation to the territorial sea.183 While the Yarmirr High Court did not address the intertidal zone,184 it has been seen that the Full Federal Court in YarmirrFC attributed a statutory extension of radical title in respect of the whole area to which the NTA applies, including the intertidal zone.185 Indeed, by acknowledging that the common law operated to low-water mark, it appears the Full Court’s approach entails the consequence that the Crown also acquired a radical title to the intertidal zone at common law. It will be seen in the next section that, in Gumana, Selway J expressly embraced this result, holding that the Crown acquired a radical title to the intertidal zone sea.   Yarmirr (n 3) [63]–[76] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).   ibid [76]. 179   See above text to nn 166–67. 180   Yarmirr (n 3) [70] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 181   ibid [259]. See also above text to n 89–90. Since Kirby J’s analysis in Yarmirr focused on the NTA, he reserved his opinion on the joint majority’s reasons for concluding that the common law does not necessarily end at low-water mark. Nevertheless, it is clear that Kirby J’s analysis in WMC assumed that, upon acquisition of sovereignty, the Crown acquired a common law radical title in respect of the territorial sea/seabed. Kirby J’s analysis in WMC also made it clear that the Crown acquired common law ‘sovereign rights’ to the sea/seabed beyond the territorial sea. Furthermore, like Merkel J in YarmirrFC, Kirby J considered that while ‘sovereign rights’ do not constitute radical title, the two concepts are equivalent. Since these principles are not inconsistent with Kirby J’s reasoning in Yarmirr, his judgment in Yarmirr implicitly incorporates the proposition that the acquisition of sovereignty over the territorial sea by the Crown was accompanied by the vesting of a common law radical title in the Crown. See also Bodney v Bennell [2008] FCAFC 63, (2008) 167 FCR 84 [121] (Finn, Sundaberg and Mansfield JJ) where the Full Federal Court assumed that the Crown had radical title to the sea. 182   Yarmirr (n 3) [273]. For further discussion of the need to re-examine the concept of exclusivity in the context of native title to the sea see S Young, The Trouble with Tradition: Native Title and Cultural Change (Sydney, Federation Press, 2008) esp 388–401. Young argues that the first step in correcting the restrictive interpretation of native title in Australian case law requires a re-examination of the concept of exclusivity and its logical implications. While this exercise began in Yarmirr, it remains incomplete. 183   Yarmirr (n 3) [272]–[273] (Kirby J). 184   ibid [73] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 185   See above text to nn 54–61. 177 178



Post-Yarmirr Developments 221

V POST-YARMIRR DEVELOPMENTS

A  The Intertidal Zone i  Gumana v Northern Territory186 Delivering the judgment of the Federal Court in Gumana, Selway J emphasised that although the Crown had property in the soil of the foreshore between high and lowwater marks187 pursuant to the prerogative: The Crown’s prerogative rights in the soil of the foreshore did not confer full rights of dominion over the land and waters. The Crown did not have a fee simple over the foreshore – if its rights can be usefully described in terms of the theory of tenure, they were analogous to a radical title.188

Selway J expressly contrasted his characterisation of the Crown’s rights to the foreshore – as analogous to a radical title – with the positions adopted by the Yarmirr principal majority and Cooper J in Lardil Peoples v Queensland.189 It has been seen that although the Yarmirr principal majority attributed to the Crown common law sovereign rights and interests in respect of the territorial sea, such rights are nevertheless analogous to the Crown’s radical title in respect of land. The Yarmirr principal majority also attributed a statutory extension of radical title to the territorial sea. Yarmirr did not, however, consider the legal regime applying in the intertidal zone. Nevertheless, purporting to rely on Yarmirr and Western Australia v Ward,190 Cooper J, in Lardil, attributed to the Crown an absolute, rather than radical, title in respect of both the intertidal zone and the territorial sea.191 Since the decision in Ward followed the decision in Yarmirr in this regard,192 Cooper J’s decision is inconsistent with both High Court authorities. Although Selway J held that the applicants had non-exclusive native title rights to the sea and intertidal zone similar to those identified in Yarmirr and Lardil,193 before final orders were made, his Honour died. Accordingly, in Gumana v Northern Territory (No 2),194 Mansfield J completed the hearing for the purpose of making final orders to reflect the reasons for judgment of Selway J. Importantly, therefore, while Mansfield J did not express any view on the legal nature of Crown’s title to the intertidal zone and sea, his decision implicitly adopted Selway J’s view that it is analogous to a radical title. The Full Federal Court in Gumana v Northern Territory,195 however, expressly refrained from considering the question of Crown’s title to the sea.196   Above n 6.   Gumana (n 6) [66]. For the definition of ‘intertidal zone’, which includes the ‘foreshore’ and ‘arms of the sea’, see above n 6. 188   ibid [62]. 189   Above n 16. See Gumana (n 6) [62]. 190   Above n 132. 191   Lardil (n 16) [160], 161], [164]–[168], [171], [188]–[189], [221]. See also Secher, ‘Lessons from the Sea: Part Two’ (n 13) text to nn 110–20. 192   Ward (n 132) [388] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See also Secher, ‘Lessons from the Sea: Part Two’ (n 13) text to fn 117. 193   Gumana (n 6) [3]. 194   Gumana v Northern Territory (No 2) [2005] FCA 1425 (Mansfield J). 195   Gumana v Northern Territory [2007] FCAFC 23, (2007) 158 FCR 349 (French, Finn and Sundberg JJ). 196   ibid [88]–[89]. 186 187

222  Radical Title: Lessons from the Sea ii  GumanaFC: Two Further Objections to Non-Recognition of Exclusive Native Title Rights to the Sea In the context of considering the question whether a statutory grant of a fee simple estate to the intertidal zone would be sufficient to give the grantee the right to exclude persons who previously had a public right to fish/navigate in that zone, the Full Federal Court declared that it was unnecessary to enter upon the debate fanned by Selway J as to whether public rights to fish/navigate are, strictly, ‘common law rights or “are best understood as restrictions on the Crown’s prerogative”’.197 They did, nevertheless, note that it is unsurprising ‘that in different ages the rights have been ascribed differing provenances’.198 Moreover, they emphasised that what needs to be said about public rights is that ‘it is not possible to make, with any degree of confidence, a complete and exhaustive statement of the common law rights of the public in relation to tidal waters and the foreshore’.199 The Full Court also quoted Bonyhady’s observation that ‘the legal basis of this right is unclear[,] and there are also significant limitations on the manner in which the right may be exercised’.200 The Court’s obiter observations have two important implications. a  Public Rights to Fish and Navigate as Restrictions on the Crown’s Prerogative First, if public rights to fish/navigate are merely restrictions on the Crown’s prerogative – a proposition also supported by Yarmirr201 and the Magna Carta authorities202 – then these public rights have no significance for any title not derived from Crown grant. Native titleholders would, therefore, be in a stronger position than previously identified. Rather than the suggestion that ‘although pre-existing native title rights [including exclusive rights] cannot curtail public rights, they can exist subject to them’,203 any question of inconsistency between pre-existing native title rights (including exclusive rights) and public rights would only arise if the Crown exercised its prerogative power (subject to the public rights) to deal with the foreshore/sea. The existence of public rights as a restriction on the Crown’s prerogative could not, of itself and without further executive act, preclude recognition of exclusive native title rights or any other exclusive rights not derived from Crown grant. b  Not Possible to Precisely Determine Content of Public Rights to Fish and Navigate Secondly, since it is not possible to make a complete, exhaustive statement of public rights to fish/navigate, and since there are significant limitations on the manner in which these rights may be exercised, it is inherently impossible to conclude that the public rights are inconsistent with exclusive native title rights. Indeed, the courts have consist  ibid [89] quoting Gumana (n 6) [69] (Selway J).   GumanaFC (n 195) [89] (French, Finn and Sundberg JJ). 199   ibid quoting Georgeski v Owners Corporation SP49833 [2004] NSWSC 1096, (2004) 62 NSWLR 534 [84] (Barrett J). 200   GumanaFC (n 195) [89] (French, Finn and Sundberg JJ) quoting T Bonyhady, The Law of the Countryside: The Rights of the Public (Oxford, Professional Books, 1987) 240. 201   See above n 130 and text. See also Risk v Northern Territory (n 143) [127] (Callinan J) summarising the content of the public fishing/navigation rights in Yarmirr. 202   See above text to nn 141–44. 203   See above the conclusion reached in text to nn 140–45. 197 198



Post-Yarmirr Developments 223

ently held that it is not possible to decide the question of inconsistency between native title rights and the rights of Crown grantees until the rights constituting the native title are determined;204 a fortiori, the precise content of public rights must be determined before any question of inconsistency with native title arises. Although the Full Federal Court’s decision was mostly upheld by the High Court in Northern Territory v Arnhem Land Aboriginal Land Trust,205 the High Court majority there explained that the premise underlying the Federal Court’s decision was wrong. Rather than proceeding from the premise that the question was whether there was any competition between the common law public right to fish and the rights conferred by grants under the Land Rights Act,206 the joint majority judgment held that the common law right to fish had been abrogated by the Fisheries Act 1988 (NT)207 and that the relevant question was whether there was any competition between rights derived from the Fisheries Act and the Land Rights Act.208 Crucially, the High Court’s decision does not disturb the principle that native title existing before statutory abrogation of the public right to fish can include ‘qualified exclusive’ rights to the sea. Moreover, after statutory abrogation of the public right to fish, there is no impediment to recognising full exclusive native title rights to the sea. Since the joint majority confined their judgment to the statutory position under the Land Rights Act,209 the decision also has no significance for the Crown’s common law title to land/sea. With respect to the common law position relating to the intertidal zone, therefore, Selway J’s decision in Gumana has the most precedential value: at common law, the Crown’s title to the intertidal zone, including the foreshore and the arms of the sea, is analogous to a radical title. It will also be seen in the next section that the Federal Court’s decision in Akiba210 provides further support for the proposition that the legal nature of the Crown’s title upon acquisition of sovereign rights beyond the territorial sea is analogous to the Crown’s radical title to land: it confers only legislative power and jurisdiction, not property rights. Akiba also supports the proposition that there are degrees of statutory sovereign rights, with the Crown’s statutory sovereign rights to the territorial sea being stronger than the Crown’s statutory sovereign rights beyond the territorial sea. Although the Federal Court did not decide in Akiba whether there had been any statutory abrogation of the public right to fish by the relevant Queensland and Commonwealth fisheries legislation, the decision perpetuates the erroneous assumption that the common law will only recognise non-exclusive native title rights to the sea. B  Beyond the Territorial Sea Revisited – the Exclusive Economic Zone and the Continental Shelf: Akiba Akiba concerned an application for determination of native title in a major part of the sea area of Torres Strait beyond Australia’s territorial seas in its Exclusive Economic   See, eg, Wik (n 2) 212–13 (Kirby J).   Northern Territory v Arnhem Land Aboriginal Land Trust [2008] HCA 29, (2008) 236 CLR 24. 206   ibid [19] (Gleeson CJ, Gummow, Hayne and Crennan JJ). 207   ibid [27]. 208   ibid [30]. 209   cf ibid [67]–[71] (Kirby J). 210   Above n 10. 204 205

224  Radical Title: Lessons from the Sea Zone (EEZ). For present purposes, this involved addressing two important questions: first, can native title be recognised in the EEZ? Secondly, had any commercial native right to fish in the claim area that existed at sovereignty been extinguished by relevant Queensland and Commonwealth fisheries legislation?211 It is worth noting at this juncture that it was in Mabo that native title was first accepted and recognised in relation to the Murray Islands in Torres Strait. As a result of Mabo and 22 subsequent consent determinations made under the NTA, native title has been recognised in all of the inhabited islands of interest in Akiba.212 Although the issue for determination in Akiba related to seawater areas of Torres Strait, Finn J, delivering the judgment of the Federal Court, noted that the ‘land Determinations are of some contextual importance in this proceeding’ and emphasised that, ‘to the Islanders, land and sea are seamlessly and culturally associated: there is no “sea-land dichotomy”’.213 In answering the question whether native title can be recognised in the EEZ of the claim area, Finn J noted the history of the steps taken by which British and then Australian sovereignty ‘was acquired over distinct areas of territorial seas, the airspace over them and their respective seabeds and subsoil’.214 This history spanned over 130 years and involved five separate dates, from 1872 to 2006.215 In addition to the ‘progressive extension’ of Australia’s territorial seas, in 1994 a proclamation under the SSLA set the outer limits of the EEZ beyond the territorial sea in Torres Strait.216 Thus, Australia’s sovereignty over its territorial seas and its ‘sovereign rights and rights of control’ beyond the territorial sea are recognised and regulated by the SSLA and by the 1982 United Nations Convention on the Law of the Sea (UNCLOS),217 articles of which are implemented or otherwise given effect in the SSLA.218 The SSLA declares and enacts Australia’s sovereignty in respect of the territorial sea (which extends up to 12 nautical miles from the baselines from which the breadth of the territorial sea is measured).219 As Finn J explained: Beyond the limits of the territorial sea, the [SSLA] recognizes that new zones of functional and resource jurisdiction can be declared or exist consistently with the provisions of the [UNCLOS]. These, as they radiate outwards, are the Contiguous Zone, the EEZ and the Continental Shelf .220

Australia’s contiguous zone is adjacent to its territorial sea, extending up to 24 nautical miles from its territorial sea baseline.221 Australia’s EEZ extends from the outer edge 211   It will be seen that although the Full Federal Court overturned Finn J’s decision on the second issue, the High Court has granted special leave to appeal from the Full Federal Court’s decision: below text to nn 277–85. 212   Akiba (n 10) [7] (Finn J). 213   ibid [8]. This principle is consistent with the argument advanced regarding the legal nature of the Crown’s title to land and sea. 214   ibid [687]. 215  ibid. 216   ibid [689]. 217   Opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994). 218   Akiba (n 10) [690]–[691] (Finn J). 219   ibid [690]. Due to the proximity of Papua New Guinea, the territorial sea around certain Torres Strait islands is only three nautical miles wide, in accordance with the Torres Strait Treaty entered into with Papua New Guinea: Treaty concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, and Related Matters, Australia–Papua New Guinea, signed 18 December 1978, 1429 UNTS 207 (entered into force 15 February 1985) art 3 (Torres Strait Treaty). 220   Akiba (n 10) [691]. 221   UNCLOS art 33, reproduced in Seas and Submerged Lands Act 1973 (Cth) sch (‘Parts II, V and VI of the United Nations Convention on the Law of the Sea’). In this zone, Australia may exercise the control necessary to prevent or punish infringements of its customs, fiscal, immigration or sanitary laws and regulations.



Post-Yarmirr Developments 225

of the territorial sea up to 200 nautical miles from the territorial sea baseline.222 By section 10A of the SSLA, ‘the rights and jurisdiction of Australia in its exclusive economic zone are vested in and exercisable by the Crown in right of the Commonwealth’. These ‘rights and jurisdictions’ are provided in article 56 of the UNCLOS and relevantly include: [S]overeign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds.223

Australia’s continental shelf is the area of the seabed and subsoil extending beyond the territorial sea for up to 200 nautical miles from the territorial sea baseline and beyond that distance to the outer edge of the continental margin as defined in the UNCLOS. Thus, the continental shelf is largely co-extensive with the EEZ within 200 nautical miles from the territorial sea baseline.224 Indeed, art 56 provides that Australia’s rights in relation to the seabed and subsoil in its EEZ are to be exercised in accordance with the continental shelf regime. Importantly, however, the EEZ is not limited to the seabed and subsoil beyond the territorial sea; it extends to the waters superjacent to the seabed. Finn J referred to the joint majority’s explanation in Yarmirr of ‘how the concept of “radical title” could be deployed as a tool to explain how native title to land could survive the Crown’s acquisition of sovereignty over land’,225 but noted that that judgment continued: [I]t is wrong to argue from an absence of radical title in the sea or sea-bed to the conclusion that the sovereign rights and interests asserted over the territorial sea are necessarily inconsist­ ent with the continued existence of native title rights and interests. The inquiry must begin by examining what are the sovereign rights and interests which were and are asserted over the territorial sea.226

Applying Yarmirr, Finn J held that the sovereignty acquired over the territorial seas was the right and power to govern that part of the globe . . . This acquisition occurred by operation of international law and was subject to such qualifications as were necessitated by evolving international law.227

Turning to the EEZ beyond the territorial sea, Finn J found that the provisions of the NTA contemplated that native title might be recognised in the EEZ by the common law.228 This was reflected by, inter alia, section 6 of the NTA, which extended the provisions of the NTA ‘to any waters over which Australia asserts sovereign rights under the [SSLA]’. Such a statutory extension of the NTA to the EEZ is consistent with the approach adopted by the YarmirrFC Full Federal Court to conclude that there was a 222   Akiba (n 10) [692] (Finn J). The outer limit is less than 200 nautical miles in some areas, in accordance with agreements with neighbouring countries. Although coastal states are not obliged to claim the EEZ, Australia has done so: Akiba (n 10) [691] (Finn J). See also the authorities cited at [691]. 223   Akiba (n 10) [694] (Finn J) quoting UNCLOS art 56(1)(a). 224   There are certain areas between Australia and Papua New Guinea and Australia and Indonesia where they are not co-extensive. 225   Akiba (n 10) [713] citing Yarmirr (n 3) [46]–[48] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 226   Akiba (n 10) [713] quoting Yarmirr (n 3) [50] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 227   Akiba (n 10) [714]. 228   ibid [715].

226  Radical Title: Lessons from the Sea statutory extension of radical title to the whole of the area to which the NTA applies rather than the incremental approach adopted by the Yarmirr High Court to determine whether the common law applies and will recognise native title below low-water mark. Finn J’s approach, however, differs from that in YarmirrFC because rather than concluding that there was a statutory extension of radical title to the EEZ, his Honour relied on the Yarmirr High Court’s explanation that the Crown acquired ‘sovereign rights and interests’ upon assertion of sovereignty over the territorial sea,229 and on the fact that Australia’s rights in the EEZ under section 10A of the SSLA are described in article 56 of the UNCLOS as ‘sovereign rights’, to conclude that the Crown has ‘sovereign rights’ in relation to the EEZ.230 Thus, Finn J’s approach vis-a-vis the legal nature of the Crown’s title to the EEZ beyond the territorial sea contains elements of both the Full Federal Court’s approach in YarmirrFC and the High Court’s approach in Yarmirr vis-a-vis the Crown’s rights to the territorial sea. Notably, however, Finn J did not refer to the High Court’s analysis in WMC of the Crown’s rights to the continental shelf beyond the territorial sea.231 Nevertheless, it will be seen that Finn J’s observations on this point are consistent with the High Court’s analysis in WMC. Having found that non-exclusive traditional laws and customs to access, use and take marine resources were, and are, acknowledged and observed in areas of the EEZ,232 the question for Finn J was whether the common law would recognise these native title rights in the EEZ.233 Finn J noted that it is well-accepted that the EEZ regime is sui generis: it is neither an extension of the territorial sea nor a modified version of the high seas regime.234 Rather, the EEZ is subject to the specific legal regime established in part V of the UNCLOS.235 Crucially, Finn J emphasised that, in relation to the EEZ, ‘[f]ull sovereignty was not given to the coastal states’.236 ‘Sovereign rights – something less than “full” sovereignty – were to be afforded coastal States’.237 Finn J had, however, noted that since article 56(3) of the UNCLOS required Australia’s rights in relation to the seabed and subsoil in its EEZ to be exercised in accordance with the continental shelf regime, article 77 of the UNCLOS (especially paragraph 2) was important as it made the right to exploit the natural resources of the continental shelf ‘exclusive’:238 1  The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.   ibid [713] quoting Yarmirr (n 3) [50] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).   Akiba (n 10) [713]–[716]. 231   See above text to nn 31–52. 232   Akiba (n 10) [11], [712], [721], [725] (Finn J). 233   ibid [727]. Prior to addressing this issue, Finn J noted that ‘[t]hese rights are acknowledged by the common law in the native title claim area in Australian territorial waters’. 234   ibid [719]. 235   ibid [719]. 236   ibid. According to DJ Attard, The Exclusive Economic Zone in International Law (Oxford, Clarendon Press, 1987) 66, quoted in Akiba (n 10) [719], the EEZ regime attempts to remove the geographic notions inherent in the law of the sea: ‘The applicable legal regime is no longer dependent on the geographic area in question; rather, it is the activity in question that will determine the operative regime. . . . Thus it is possible for different States to have jurisdiction over different activities in the same area; indeed, frequently there will be concurrent jurisdiction, usually for different purposes’. In this context, the native title rights to access and take resources found by Finn J fitted ‘squarely within one of the forms of marine activity which are the subject of Australia’s sovereign rights under Art 56(1)(a) of the [UNCLOS]’: ibid [721]. 237   Akiba (n 10) [723] (Finn J). 238   ibid [699]–[700]. 229 230



Post-Yarmirr Developments 227 2  The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.239

Since this provision appeared to give an ‘exclusive right’ to the Commonwealth to take resources from the seabed and subsoil in the EEZ, Finn J’s determination of whether the native title rights in the claim area were recognised by the common law had three elements. First, Finn J addressed native title rights of use, not involving taking, and found that they raised no issue because they ‘are not inconsistent with Australia’s sovereign rights’.240 Secondly, Finn J addressed native title rights of taking marine resources from the superjacent waters in the EEZ and found that they too raised ‘no issue of inconsistency for the common law’.241 Thirdly, Finn J addressed the native title right of taking resources from the seabed or subsoil and noted that, because of article 77(2), it might be thought that an issue of inconsistency at common law would arise.242 However, his Honour denied this result by drawing a distinction between the Crown’s property in the seabed and subsoil in the EEZ, on the one hand, and the Crown’s legislative power and jurisdiction over them, on the other: [Article 77(2)] gives an apparently ‘exclusive right’ to the Commonwealth. That provision, though, would seem, to be in the nature of an emphatic affirmation of the extent of a coastal state’s rights of control over its continental shelf . . . its function being to affirm the extent of its sovereign power. It does not address property rights as such. Hence it does not raise any issue of inconsistency of rights.243 (emphasis added)

Crucially, this is the same distinction Brennan CJ drew in relation to the Crown’s rights to the continental shelf in his key majority judgment in WMC.244 Thus, Finn J’s judgment confirms that the Crown’s title to the EEZ and continental shelf, although statutory in origin, does not confer beneficial title on the Crown and is therefore analogous to the Crown’s radical title to land. By distinguishing between the Crown’s statutory sovereign rights to the territorial sea and to the EEZ/continental shelf beyond the territorial sea, Finn J’s judgment also supports the proposition that there are degrees of statutory sovereign rights, the Crown’s statutory sovereign rights to the territorial sea being stronger than the Crown’s statutory sovereign rights beyond the territorial sea.245 This is also consistent with Gummow J’s conclusion in WMC that the sovereignty referred to in section 6 of the SSLA regarding the territorial sea is a stronger term than the ‘sovereign rights’ used in section 11 of that Act regarding the continental shelf:246 Finn J has made it clear that section 10A of the SSLA, regarding the EEZ, confers the lesser rights. Although Finn J suggests that the Crown’s lesser title to the EEZ constitutes an impediment to recognising native title in the EEZ,247 the reverse is true: there is greater   ibid [700] quoting UNCLOS art 77.   Akiba (n 10) [728]. 241   ibid [729]. 242  ibid. 243   ibid. See also ibid [730]–[731]. 244   See above text to nn 34–52. 245   Although the High Court in Yarmirr held that the Crown’s sovereignty over the territorial sea has a common law basis, Finn J only addressed the statutory basis. 246   See above text to n 96. 247   Akiba (n 10) [723]. 239 240

228  Radical Title: Lessons from the Sea scope for recognising native title because native title rights are potentially less likely to be inconsistent with the Crown’s title in the EEZ. This is reinforced both by the High Court’s emphasis in Members of the Yorta Yorta Aboriginal Community v Victoria248 that the rights and interests which can be recognised under section 223(1) of the NTA may not, and often will not, reflect Anglo-Australian conceptions of ‘property’ and ‘belonging’249 and by the High Court’s emphasis in Yarmirr that neither the use of the word ‘title’ nor the fact that the rights and interests be ‘in relation to’ land and waters require identification of the rights and interests as items of ‘real property’.250 In the context of determining whether native title can be recognised in the EEZ, the Commonwealth also argued that: [I]rrespective of the date when sovereignty was asserted by Australia in geographical parts of the waters of the sea claim area, the capacity of the Islander society to create new laws – and new rights and interests under those laws – ceased upon acquisition of sovereignty over the land.251 (emphasis added)

In considering whether new native title rights could be created in areas not yet subject to sovereignty but which subsequently came under sovereignty, Finn J referred to the established legal principle that new native title rights could not be recognised over areas where ‘territorial sovereignty had previously been acquired’.252 As explained by Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta, this principle applied to both land and water: Because there could be no parallel law-making system after assertion of sovereignty it also follows that the only rights or interests in relation to land or waters, originating otherwise than in the new sovereign order, which will be recognised after the assertion of that new sovereignty are those that find their origin in pre-sovereignty law and custom.253 (emphasis added)

Yorta Yorta did not, however, address the issue of progressive sovereignty and the creation of new native title rights.254 This allowed Finn J to hold that it was possible for a system of laws and customs subsisting from before sovereignty to create new rights and interests in areas beyond the territorial sovereignty of Australia from time to time: It would be anomalous and unprincipled, in my view, for the common law to require an Aboriginal or Islander society to be faithful to their laws and customs from the time sovereignty was first acquired over some part of their territory if they are to be found today to have rights and interests under those laws and customs in that part, but to refuse to acknowledge a subsequent accretion to those rights and interests in an area not hitherto the subject of Australian territorial sovereignty (that is the emergence of new rights and interests under its traditional laws and customs). If the existence of native title in that later acquired area has to be determined at the time sovereignty is asserted over it, that determination should be made by reference to the situation existing at that time.255

  Above n 118.   Yorta Yorta (n 118) [40] (Gleeson CJ, Gummow and Hayne JJ). See also Akiba (n 10) [497] (Finn J). 250   Yarmirr (n 3) [12] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See also Akiba (n 10) [497] (Finn J). See generally Bodney v Bennell (n 181) [137]–[143] (Finn, Sundberg and Mansfield JJ). 251   Akiba (n 10) [733] (Finn J). 252   ibid [735]. 253   Yorta Yorta (n 118) [44] quoted in Akiba (n 10) [734]. 254   Akiba (n 10) [737] (Finn J). 255   ibid [738]. 248 249



Post-Yarmirr Developments 229

Finn J’s observations regarding the implications of the Crown’s acquisition of sovereignty vis-a-vis native title in the EEZ support the proposition that the Crown’s title to the EEZ/continental shelf beyond the territorial sea is a bare legal title which does not confer any beneficial entitlement. This position is further supported by Finn J’s observations made in the context of answering the second question identified as important for present purposes: had any commercial native title right to fish in the claim area that existed at sovereignty been extinguished by the relevant Queensland and Commonwealth fisheries legislation? It was argued that the legislative regimes of Queensland (since 1877)256 and of the Commonwealth (since 1952)257 concerning fishing evinced an intention to regulate and control all ‘fishing’ in Queensland and Commonwealth waters respectively (both domestic and commercial). It was also argued that, insofar as fishing for commercial purposes was concerned, the legislation did not merely regulate such activity but abrogated or extinguished any otherwise existing right (whether a native title right or a public right) to fish for commercial purposes, replacing such rights with private statutory rights to engage in commercial fishing activities.258 Finn J summarised the principles concerning extinguishment of native title, which included those established (and applied) in the context of native title land claims.259 The last principle enumerated was that because the common law right of fishing in the sea and in tidal navigable rivers is a public (rather than a proprietary) right, it is ‘freely amenable to abrogation or regulation by a competent legislature’.260 Finn J then conducted an extensive survey of the ‘interlocking and complicated legislative regimes which apply in Torres Strait’.261 While Finn J found that the native title right to access and take marine resources was ‘not circumscribed by the use to be made of the resource taken’, he accepted, for present purposes, ‘that a right to take resources for trading or commercial purposes – whether exclusive or non-exclusive – is a discrete and severable characteristic of a general right to take resources’.262 Accordingly, Finn J rejected the applicant’s submission that it is impermissible to ‘“subdivide” this right’, noting that:

  ibid [844] citing Queensland Fisheries Act 1877 (Qld).   ibid [807] citing Fisheries Act 1952 (Cth). 258   ibid [803]–[804]. These statutory rights are conferred only upon those who hold the necessary licences provided for under the legislation. 259   ibid [766]–[778]. 260   ibid [777] quoting Harper (n 57) 330 (Brennan J). 261   Akiba (n 10) [779]–[842]. For ease of exposition, Finn J adopted a three-fold approach to considering the relevant legislation, considering, first, Queensland’s legislation up until 1994; secondly, Commonwealth legislation from 1952 to 1991 excluding the Torres Strait Fisheries Act 1984 (Cth); and, thirdly, the Torres Strait Fisheries Act 1984 (Cth) and Torres Strait Fisheries Acts 1984 (Qld). Finn J did, however, confine his attention in two respects: 256 257

(i) although the concept of ‘marine resources’ relied upon by the applicant was more extensive than what is connoted by ‘fish’, because the almost exclusive focus in submissions was on fishing, consideration was limited to legislation dealing with fishing. ‘Fishing for commercial purposes is, on the evidence, the matter of present controversy’: Akiba (n 10) [843]. (ii) the primary focus was on the Fisheries Act 1952 (Cth) and Torres Strait Fisheries Act 1984 (Cth) because, except for a narrow area of internal water which is subject to Queensland law and possibly the coastal waters around the islands to the north of the Seabed Jurisdiction Line as defined in the Torres Strait Treaty, the law in relation to fisheries that presently applies to the area in which native title was found to exist is the Torres Strait Fisheries Act 1984 (Cth): Akiba (n 10) [843].   Akiba (n 10) [847].

262

230  Radical Title: Lessons from the Sea The distinction between engaging in an activity for commercial purposes or for non-­ commercial, private or other purposes is one commonly made. It was from the outset, and remains, a characteristic of the fisheries legislation considered in this matter . . . [and is also] reflected in the differentiation of purposes in s 211 of the [NTA].263

Finn J further observed that there were ‘two very discernible and evolving features of the fisheries legislation over time’ which were interrelated: first, ‘the expansion of the particular public interests of which account is to be taken in the design and implementation of legislative schemes to regulate and control fisheries’; and secondly, ‘the changing character of the discretions given in the grant (or refusal) of leases and licences under such legislation’.264 Finn J’s analysis of the legislation demonstrated that there existed ‘increasingly comprehensive – and . . . sophisticated – management regimes which had and have as a principal focus, the control and management of commercial fishing’.265 Thus, the ‘question of interpretation raised by these schemes’ was ‘whether they disclosed a clear and plain intent to extinguish native title’ or whether they did ‘no more than bring Islander fishing for commercial purposes into an aspect of the regulatory regime applied to commercial fishing’ – in other words, ‘was the legislative intent . . . simply to extend the control of commercial fishing . . . and not to define “underlining rights”?’266 Because the relevant legislation did not ‘of its own force seek directly to deny Islander fishing rights for commercial purposes’ and one of its objectives was ‘to acknowledge and protect, as a management priority, the traditional way of life and livelihood of traditional inhabitants, including their rights in relation to traditional fishing’,267 Finn J adopted a ‘constructional choice’ that was ‘more favourable to the retention of the right to fish for commercial purpose[s]’.268 This choice was reinforced by the ‘distinctive setting’ of the legislation which, assuming native title subsisted in Torres Strait at the time of its enactment, would need to contain ‘particularly strong indications . . . that existing rights were intended to be extinguished, given the markedly beneficial and protective intent’ of it and the Torres Strait Treaty.269 Consequently, Finn J concluded that the state and Commonwealth legislative regimes concerning fisheries ‘did not, and do not, severally or together evince a clear and plain intention to extinguish native title rights to take fish for commercial purposes’.270 Finn J did, however, find that: To the extent that those legislative regimes regulate the manner in which, and the conditions subject to which, commercial fishing can be conducted in a fishery in the native title holders’ marine estate, or prohibits qualifiedly or absolutely particular activities in relation to commercial fishing in the fishery in that estate . . . the native title holders must, in enjoying their native title rights, observe the law of the land. This is their obligations [sic] as Australian citizens. But complying with those regimes provides them with the opportunity – qualified it may be – to exercise their native title rights.271 (emphasis added)  ibid.   ibid [848]. 265  ibid. 266   ibid [850]. 267   ibid [851]. 268  ibid. 269  ibid. 270   ibid [861]. 271  ibid. 263 264



Post-Yarmirr Developments 231

This produces an anomaly: although Finn J’s reference to native titleholders observing ‘the law of the land’ inherently encompasses statute, common law and custom, Finn J only allows native title to be ‘qualified’ in the statutory context. As a result, Finn J accepts the ‘well established’ principle that the common law will not recognise a native title right to occupy, use and enjoy waters seaward of the high water mark to the exclusion of all others, or a right to possess and control those waters to the exclusion of all others,

because ‘[s]uch rights are inconsistent with the public’s right to fish in, and to navigate over, those waters’.272 It has been seen, however, that both authority and legal principle support exclusive native title rights subject to the public rights (‘qualified exclusive rights’) on a number of grounds and that, after statutory abrogation of the public right to fish, there is no impediment to recognising full exclusive native title rights to the sea. Although Finn J expressly observed that, unlike the High Court in Arnhem Land Aboriginal Land Trust,273 he did not have to determine whether or not the common law public right to fish had been abrogated by the relevant Queensland and Commonwealth fisheries legislation,274 this does not disturb the principle that native title existing before any statutory abrogation of the public right to fish can include qualified exclusive rights to the sea. Because exclusive native title to the sea co-exists with the public right to fish, this principle is distinct from the well-established principle that: A native title right which will not be recognised because of inconsistency with a common law right, cannot be saved by the expedient of acknowledging the common law right and by qualifying the native title right by making it subject to the common law right.275

Since Finn J made it clear that native title is subject to ‘the law of the land’, it is not possible to reconcile why it is only subject to statute law but not other aspects of ‘the law of the land’: the common law and custom. Indeed, in this context, Finn J’s judgment provides further support for, at the very minimum, recognising qualified exclusive native title rights to the EEZ/continental shelf and, if there has been statutory abrogation of the public right to fish, recognising full exclusive native title rights to the EEZ/continental shelf. Indeed, it is because the general common law right to fish is a ‘public not a proprietary right’ that it ‘is freely amenable to abrogation’.276 Nevertheless, the Full Federal Court in Commonwealth v Akiba,277 by a majority of two to one, overturned Finn J’s recognition of a non-exclusive commercial native title right to fish on the ground that since the relevant legislative regime prohibiting commercial fishing and creating private statutory rights to pursue that activity was inconsistent with (and thus abrogated) the public right 272   ibid [745]. In this context, Finn J held at [11]: ‘[t]he native title rights I have found are the non-exclusive rights of the group members of the respective inhabited island communities first, to access, to remain in and to use their own marine territories or territories shared with another, or other, communities; and, secondly; to access resources and to take for any purpose resources in those territories. In exercising these rights the group members are expected to respect their marine territories and what is in them. Importantly, and this requires emphasis, none of these rights confer possession, occupation, or use of the waters to the exclusion of others. Nor do they confer any right to control the conduct of others’. 273   Above n 205. 274   Akiba (n 10) [749], [938]. 275   ibid [746] citing Yarmirr (n 3) [95]–[96], [100] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 276   Harper (n 57) 330 (Brennan J). See also above n 260. 277   Commonwealth v Akiba [2012] FCAFC 25, (2012) 204 FCR 260.

232  Radical Title: Lessons from the Sea to fish for commercial purposes, it was also ‘inconsistent with a right to fish for commercial purposes derived from native title interests’.278 Moreover, this was the case ‘even though the law [did] not single out, in express terms, the native title right’.279 Although Mansfield J, in his dissenting judgment in AkibaFC, endorsed Finn J’s ‘constructional choice’ in interpreting the fisheries legislation as a regime of regulatory control consist­ ent with the continued enjoyment of native title rights to fish and take fish for commercial purposes,280 the majority were of the view that Finn J’s approach ‘sits uneasily with the orthodox approach to the issue of extinguishment’.281 For the majority, the native title right to fish had been partially extinguished by the statutory prohibition on commercial fishing without a licence. Accordingly, they ordered that the native title right to take resources for any purpose (as determined by Finn J) be qualified so as not to ‘extend to taking fish and other aquatic life for sale or trade’.282 Crucially, this conclusion is not inconsistent with recognition of qualified exclusive (unextinguished) native title rights to fish. Furthermore, while all four Federal Court justices in Akiba applied the High Court’s decision in Yanner v Eaton,283 two concluded that fisheries legislation merely regulated the native title right to fish for commercial purposes and two concluded that it extinguished it. With respect, the latter conclusion misapplies Yanner, which is authority for the proposition that a general legislative prohibition coupled with a licensing regime amounts to regulation not prohibition/extinguishment.284 Indeed, special leave to appeal to the High Court from the decision in AkibaFC was granted in October 2012 on this (and another) issue.285 The High Court will, therefore, decide the effect of fisheries legislation on public and private rights to fish for commercial purposes.286 VI CONCLUSION

Post-Yarmirr, it is clear that the common law can extend to the territorial sea. Although the majority in Yarmirr do not go as far as Merkel J in YarmirrFC, who held that the   ibid [73] (Keane CJ and Dowsett J).   ibid [73]. 280   ibid [226] (Mansfield J). See also ibid [221]. 281   ibid [63] (Keane CJ and Dowsett J). 282   ibid [145]. 283   Yanner v Eaton [1999] HCA 53, (1999) 201 CLR 351. 284   For further support for this view see S Brennan, ‘Commercial Native Title Fishing Rights in the Torres Strait and the Question of Regulation Versus Extinguishment’ (2012) 8(2) Indigenous Law Bulletin 17, 18–19. 285   The two issues before the High Court are whether native title rights to fish for commercial purposes have been extinguished and whether ‘reciprocal relationship based rights’ or ‘reciprocity based rights’ are native title rights and interests as defined in s 223(1) of the NTA: Akiba v Commonwealth [2012] HCATrans 245. 286   Author’s postscript: On 7 August 2013, the High Court (allowing the appeal in part) unanimously held that state and federal legislation prohibiting commercial fishing without a licence did not extinguish the appellant’s native title right to fish for commercial purposes: AkibaHC (n 10). In recognising commercial native title fishing rights the High Court restored Finn J’s decision in Akiba. French CJ and Crennan J also confirmed that Harper (n 57) is ‘not authority for the proposition that native title rights and interests, derived from traditional laws and customs and recognised by the common law, are as freely amenable to abrogation as public rights derived from the common law’: AkibaHC (n 10) [38], see also ibid [74] (Hayne, Kiefel and Bell JJ). Although the High Court dismissed the appeal on the ‘reciprocal rights’ issue, the Court held that Finn J had correctly characterised such rights on the evidence before him. Crucially, because the High Court in AkibaHC did not consider the legal nature of the Crown’s title to the EEZ and continental shelf the principles which emerge in this context from Finn J’s decision are not disturbed. 278 279



Conclusion 233

common law applies in respect of the territorial sea, they adopt an incremental approach: while the common law does not necessarily end at low-water mark, whether it extends to the territorial sea must be determined on a case-by-case basis. Nevertheless, the majority also made it clear that although the common law applied, this did not mean the Crown had radical title in respect of the territorial sea. Pre-Yarmirr, the High Court in WMC had drawn a distinction between the Crown’s title to ‘land’ and the Crown’s title to ‘the continental shelf beyond the territorial sea’, radical title and ‘statutory sovereign rights’ respectively.287 The new element introduced by the High Court in Yarmirr was the distinction, not unlike that drawn by Merkel J, between the Crown’s title to ‘land’ and to ‘the territorial sea’: although radical title is a concomitant of sovereignty over land, ‘common law sovereign rights’ are concomitant with sovereignty over the territorial sea. The new element introduced by Akiba is confirmation that, like the Crown’s title to the continental shelf beyond the territorial sea, ‘statutory sovereign rights’ are concomitant with sovereignty over the EEZ beyond the territorial sea. Indeed, a four-fold distinction has emerged between the Crown’s title to: land; the intertidal zone; the territorial sea/solum; and the EEZ and continental shelf beyond the territorial sea. In respect of land, the Crown has a radical title (Mabo, Wik); in respect of the intertidal zone, including the foreshore, there is a statutory extension of radical title (YarmirrFC) and the Crown also has a radical title at common law (Gumana, YarmirrFC); in respect of the territorial sea, the Crown has common law sovereign rights (Yarmirr); and in respect of the continental shelf and EEZ, the Crown has ‘statutory sovereign rights’ (WMC, Akiba). The Crown’s title is, therefore, described in one of three ways depending on the area of land/sea: namely, ‘radical title’ or a statutory extension thereof; ‘common law sovereign rights’; or ‘statutory sovereign rights’. Importantly, although the Crown’s title to land, the intertidal zone and the territorial sea are derived from the Crown’s sovereignty over Australia, the Crown’s title to the continental shelf and EEZ beyond the territorial sea derives from ‘statutory sovereign rights’.288 The distinction between sovereignty and ‘statutory sovereign rights’ appears to correspond with the application and non-application of the common law respectively: where the Crown has acquired sovereignty over an area (land or sea), the common law applies (at least prima facie); where the Crown has merely acquired ‘statutory sovereign rights’, the common law does not apply. Thus, while a distinction between the Crown’s title derived from sovereignty and ‘statutory sovereign rights’ might be maintained, there is no sustainable reason for distinguishing between the Crown’s title, upon acquisition of sovereignty, to different areas of sea or land. Moreover, the weight of authority suggests that, notwithstanding the classification of the Crown’s title to particular areas of sea/land, the legal nature of the title is the same: a bare legal title. In YarmirrFC, Merkel J expressly declared this to be the legal position with respect to common law sovereign rights and radical title. The majority in Yarmirr did not, however, make it clear whether they regarded the concept of radical title as something different from, or equivalent to, the concept of common law sovereign rights. They simply accepted the analysis of radical title as declared by existing authorities. The state of the law pre-Yarmirr, therefore, remains relevant to elucidating the meaning of radical title. Indeed, three members of the majority in Yarmirr were also members of the majority in   Above text to nn 31–52.   SSLA, s 11. See above generally text to nn 31-107.

287 288

234  Radical Title: Lessons from the Sea Wik, the most authoritative decision on radical title. Crucially, like the conception of radical title in Wik, both the High Court’s and Merkel J’s conceptions of ‘common law sovereign rights’ in Yarmirr and YarmirrFC respectively, and the High Court’s conception of ‘statutory sovereign rights’ in WMC, confer no beneficial entitlement to the area to which the rights relate; they merely confer power to grant interests in that area. Thus, the implications of the Yarmirr majority’s indication that there may be a statutory extension of radical title to the territorial sea may be more procedural than substantive. It is suggested that a principled approach to identifying the Crown’s title to sea/land is that where the Crown has acquired sovereignty (rather than ‘statutory sovereign rights’) over an area, whether land or sea, the common law, and thus radical title, applies. This approach is supported by Selway J’s judgment in Gumana (vis-a-vis the Crown’s radical title to the intertidal zone) and Kirby J’s judgment in WMC (which is supported by the tenor of Toohey J, Gaudron J and Gummow J’s judgments in WMC) and in Yarmirr (vis-a-vis the Crown’s radical title to the territorial sea). Accordingly, the Crown would be attributed a radical title to land, the intertidal zone and territorial sea, not only in terms of legal nature but in name. Indeed, the courts have consistently held that the effect upon native title of the Crown’s acquisition of sovereignty over the territorial sea and intertidal zone is the same irrespective of the classification of the Crown’s title to these areas; the common law will not recognise exclusive native title rights. It has been seen, however, that there are four distinct, yet interrelated, grounds for rejecting this conclusion; grounds which apply equally to any non-Crown derived rights. Importantly, it has been shown that the concepts of ‘sovereign rights’ (whether relating to the territorial sea or beyond) and ‘radical title’ (whether common law or a statutory extension thereof) support the proposition that the Crown’s acquisition of title, whether derived from sovereignty or sovereign rights, does not confer a plenary title, irrespective of the original presence of Aboriginal inhabitants. Thus, notwithstanding any suggested analogy between ‘sovereign rights’ and ‘radical title’, the analysis in this chapter supports the conclusion in chapter four that, as a concomitant of sovereignty, radical title is merely a power of alienation rather than a property right. It is also consistent with the conclusion in chapter three, that as a postulate of the doctrine of tenure, radical title is merely a bare legal title which does not automatically confer beneficial ownership to the land to which it relates. Indeed, from the examination of the law in Parts II and III, four legal principles are clear: first, the Australian doctrine of tenure ad veritatem is not brought into play until the Crown grants an interest in land: there is, therefore, the potential to accommodate sources of title in addition to Crown grant or native title within Australian land law. Secondly, the Crown’s initial title to land, as both the postulate of the doctrine of tenure and a concomitant of sovereignty, does not automatically confer beneficial ownership of any land. Thirdly, although the Crown has power to grant unalienated land (whether original or currently unalienated289 and whether or not subject to native title) in every part of Australia so that the doctrine of tenure may apply to that land, this power cannot be exercised so as to prejudice the rights of subjects which are secured to them by the rules of the common law: including common law property rights of Aboriginal people. And, fourthly, although unalienated land (both original and currently unalienated) is capable of supporting a native title application, because native title is not an institution   See definition in ch 4 text in para following n 5.

289



Conclusion 235

of the common law, it is inherently vulnerable to extinguishment by Crown grant. A crucial issue, however, remains unresolved: what is the effect of the High Court’s restatement of Australian real property law on the common law status of unalienated land? That is, what common law principles apply to land which has neither been brought within the doctrine of tenure by Crown grant of an interest in land nor appropriated to the Crown such that the Crown has acquired a plenary title to the land where the land is not subject to native title? If the land is occupied by a subject, yet the occupation is neither pursuant to a native title interest nor a Crown grant, who owns the land? It is to this issue, and its implications, that we turn in Part IV. Thus, the next chapter considers whether the Crown acquired (or can acquire) an original title to any land in Australia based upon the common law doctrine of occupancy. Because the source of the Crown’s power to deal with interests in land is now found exclusively in statute, the effect of the enactment of Crown lands legislation upon the common law interpretation of the Crown’s radical title is also examined.

6 Crown Acquisition of a Plenary Title: The Common Law Record Requirement and Statutory Regimes Regulating the Alienation of Land

F

ROM THE EXAMINATION of the law so far, it is clear that while the Crown did not acquire a plenary title to land in Australia merely by acquiring sovereignty, as a result of its radical title the Crown can acquire a plenary title to land, including land subject to native title. Nevertheless, such acquisition of title is not automatic: the Crown must validly exercise its sovereign power to appropriate land to itself.1 Pre-Mabo,2 of course, Australian courts took judicial notice of the fact that the Crown was the legal owner of all land in Australia at the time of settlement. Importantly, however, judicial opinion was divided on the question of the source of such ownership: it was regarded as either a consequence of the feudal principle or as acquired by occupancy.3 Since radical title, as the postulate of the doctrine of tenure, ensures that ownership of land can no longer be attributed to the Crown on the basis of the feudal principle, this chapter considers whether the Crown has acquired a plenary title to any land in Australia by occupancy; that is, as a specific exercise of, rather than the mere acquisition of, radical title. This examination involves two issues: first, did the Crown satisfy the requirements for acquiring a title to any land by occupancy upon settlement of Australia or subsequently? In this context, the distinction between occupied land and unoccupied land is critical. By definition, occupancy can only be used to acquire title to land which is unoccupied or res nullius. Nevertheless, it is clear that even where land is occupied by native titleholders, the Crown’s radical title, as a concomitant of sovereignty, enables it to acquire a plenary title to the land. However, what if, before the Crown exercises its sovereign power to convert its radical title to beneficial ownership, land is occupied by a subject yet the occupation is neither pursuant to a native title interest nor a Crown grant? It will be seen that, historically, when land was in the possession of a subject when the Crown’s title accrued, in the absence of some other record of the Crown’s title, an inquest of office was necessary to give the Crown possession.4 That is, inquests of office were the

1   The pre-Mabo concept of radical title is examined in ch 2, while the evolution of the post-Mabo concept of radical title is traced in chs 3, 4 and 5. 2   Mabo v Queensland (No 2) (1992) 175 CLR 1 (HCA). 3   Below text to n 13ff. 4   3 Bl Comm 259; J Chitty, A Treatise on the Law of the Prerogatives of the Crown; and the Relative Duties and Rights of the Subject (London, Joseph Butterworth and Son, 1820) 249 citing William Staunford, An Exposicion of the Kinges Prerogative; K McNeil, Common Law Aboriginal Title (Oxford, Clarendon Press, 1989) 96.

240  Crown Acquisition of a Plenary Title means by which the Crown either acquired possession or established its right thereto at common law. The second issue considered is, therefore, whether the pre-Mabo view that ‘[the Crown] cannot acquire lands in a newly settled country, by discovery, and the settlement of his subjects therein . . ., but must resort to the form of an “office” to give him title . . . scarcely [admits] of serious refutation’,5 continues to represent an accurate statement of the law? While the examination of the legal nature of the Crown’s radical title, including whether it has been converted to beneficial ownership by an appropriate exercise of sovereign power, has primarily focused on the common law position, it was noted in chapter four that the Crown’s prerogative powers to appropriate unalienated land for public purposes and to grant interests in land have been displaced by statutory powers in all Australian jurisdictions.6 The Crown’s radical title may, therefore, no longer be central to its powers to deal with rights and interests in land, which now derive from statute.7 Nevertheless, the crucial question is whether the Crown’s radical title remains central to characterising the nature of the Crown’s title to land? It was seen in chapter four that the majority of the High Court in Wik8 made it clear that the term ‘Crown land’ is synonymous with ‘radical title’. And while it is clear that, at most, radical title confers beneficial property rights except to the extent of native title,9 the Wik High Court confirmed that, for the purpose of the statutory regime regulating the alienation of land, radical title does not, of itself and automatically, confer any beneficial property rights; it is more in the nature of a governmental power.10 This chapter, therefore, also considers whether the pre-Mabo view that statutory definitions of ‘Crown land’11 refer to land which, pursuant to legislative enactment, is the ‘property’ of the Commonwealth, a State or Territory,12 continues to reflect the law in Australia. Answering this question also involves a consideration of two issues. The first, the High Court’s treatment of the statutory definition of ‘Crown land’, involves three subissues: the post-Mabo relationship between Crown land and the concept of radical title in light of both the Court’s analysis of residuary rights to, and resumptions of, Crown land which has previously been alienated and the policy of Crown lands legislation; the pre-Mabo acknowledgment of a statutory distinction between land which is ‘Crown land’ and land which is the ‘property of the Crown’; and the effect of statutory trespass provisions. The second issue is the effect of legislative provisions dealing with the constitutional power to legislate regarding Crown land.

5   Attorney-General (NSW) v Brown (1847) 1 Legge 312 (NSWSC) 320 (Stephen CJ delivering the opinion of the Court). 6   The provisions in the Crown Lands Acts take away the prerogative right of the Crown to grant land: Attorney-General v Cochrane (1970) 91 WN (NSW) 861 (NSWCA) 865 (Jacobs JA). See also Wik Peoples v Queensland (1996) 187 CLR 1 (HCA) 189 (Gummow J). Indeed, in the case of some Australian colonies (eg South Australia) the prerogative never applied: see Fejo v Northern Territory [1998] HCA 58, (1998) 195 CLR 96 [91] (Kirby J). The prerogative right to grant land is only one attribute of the Crown’s radical title: the Crown’s radical title encompasses the Crown’s prerogatives in respect of land. 7   The principal statutes regulating the alienation of land in Australia are detailed below n 196. 8   Above n 6. 9   See generally chs 3, 4 and 5. 10   See ch 4 text to n 122ff. 11   Although statutory definitions of ‘Crown land’ differ between jurisdictions: see below n 196. 12   See, eg, Halsbury’s Laws of Australia (LexisNexis at 9 February 2011) 355 Real Property, ‘VI Other’ para 355-13500.



Occupancy and Original Crown Ownership 241

I  OCCUPANCY AS A BASIS OF ORIGINAL CROWN OWNERSHIP

A  The Pre-Mabo Position The weight of opinion of the early New South Wales Supreme Court appears to support occupancy rather than the feudal fiction as the basis of the Crown’s title to land.13 In R v Steel,14 an action brought against the defendant for intrusion, the Crown successfully recovered land in Sydney which it had leased to the defendant’s predecessors in title for a term which had been expired for 27 years. Although one reason for this outcome was that Forbes CJ had directed the jury that, because the defendant derived his title and received his lease from the Crown, he was estopped from denying the Crown’s title,15 the Chief Justice had also made some general comments on the Crown’s title to land in New South Wales in his address to the jury: By the laws of England, the King, in virtue of his crown, is the possessor of all unappropriated lands of the Kingdom; and all his subjects are presumed to hold their lands, by original grant from the Crown. The same law applies to this Colony. It is a matter of history that New South Wales was taken possession of, in the name of the King of Great Britain, about fifty-five years ago. . . . The right of the soil, and of all lands in the Colony, became vested immediately upon its settlement, in His Majesty, in right of his crown, and as the representative of the British Nation.16

Thus, Forbes CJ appears to have regarded possession as the source of the Crown’s title to the territory of New South Wales and, a fortiori, all the lands within that territory. The decision of the New South Wales Supreme Court in Hatfield v Alford,17 in 1846, was to similar effect. For Stephen CJ, evidence of the Crown’s title was not required because the Court took ‘judicial notice’ of the fact that ‘the Crown was the legal owner of all land in [the] Colony at the time of its settlement in 1788’.18 In the absence of evid­ ence, or suggestion, of a previous grant, the Crown must be presumed to have had title to the land at the date of the grant.19 Although Stephen CJ did not specify how the Crown acquired its title to all land, it will be seen that only where title is acquired by occupancy (and is, therefore, not a fiction) is evidence not required to prove the Crown’s title.20 Furthermore, Dickinson J’s judgment in Hatfield is unequivocal in this context: the King, at the time of the grant . . . never had been out of possession of that land, which, in common with the whole territory, had vested originally in the Crown by discovery and occupancy of part in the name of the whole.21 13   R v Steel (1834) 1 Legge 65 (NSWSC) 68–69 (Forbes CJ); Hatfield v Alford (1846) 1 Legge 330 (NSWSC) 336 (Stephen CJ), 345 (Dickinson J); A-G v Brown (n 5) 316, 318 (Stephen CJ delivering the judgment of the Court); Doe d Wilson v Terry (1849) 1 Legge 505 (NSWSC) 508–09 (Stephen CJ); Williams v Attorney-General for New South Wales (1913) 16 CLR 404 (HCA) 428 (Barton ACJ); Council of the Municipality of Randwick v Rutledge (1959) 102 CLR 54 (HCA) 71 (Windeyer J, Dixon CJ concurring) approving Stephen CJ’s treatment of the matter in A-G v Brown. 14   Above n 13. This case is referred to by Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (NTSC) 247. 15   R v Steel (n 13) 69. 16   ibid 68–69. 17   Above n 13. 18   Hatfield (n 13) 336. 19  ibid. 20   See below text to n 39ff. 21   Hatfield (n 13) 345.

242  Crown Acquisition of a Plenary Title Subsequently, in Attorney-General (NSW) v Brown,22 where the Crown’s title to land in Australia was directly challenged, the New South Wales Supreme Court concluded that the waste lands of this Colony are, and ever have been, from the time of its first settlement in 1788, in the Crown; that they are, and ever have been, from that date (in point of legal intendment), without office found, in the Sovereign’s possession.23

The fact that the Court considered that evidence was not required in order to prove the Crown’s title once again implied that such title was acquired by occupancy. Nevertheless, Stephen CJ gave two reasons for the Court’s conclusion: although the second was occupancy,24 the first was the feudal fiction.25 In any event, the High Court had not specified how the Crown acquired its title to all land in the Australian colonies. In Williams v Attorney-General for New South Wales,26 the reasoning of the two High Court justices who dealt with this issue, Barton ACJ and Isaacs J, differed. Barton ACJ’s conclusion that New South Wales was ‘a territory which the Crown ha[d] acquired by possession,’27 appears to confirm that the Crown’s title to land in the colony was acquired by occupancy. Indeed, for Barton ACJ, [w]aste lands of the Crown, where not otherwise defined, are simply . . . such of the lands of which the Crown became the absolute owner on taking possession of this country as the Crown had not made the subject of any proprietary right on the part of any citizen.28

Although Isaacs J came to a similar conclusion on the meaning of waste lands of the Crown, he relied on the feudal fiction rather than occupancy as the basis of the Crown’s title to land. For Isaacs J: [i]t ha[d] always been a fixed principle of English land law that the Crown is the proprietor of all land for which no subject can show a title. When Colonies were acquired this feudal principle extended to the lands overseas.29

Subsequently, in Council of the Municipality of Randwick v Rutledge,30 although the High Court did not expressly state the source of the Crown’s title to land, the majority approved of Stephen CJ’s treatment of the matter in A-G v Brown. As author of the principal judgment, Windeyer J31 examined the history of Crown lands legislation in New South Wales and, importantly, introduced his historical review with the following observations: On the first settlement of New South Wales (then comprising the whole of eastern Australia), all the land in the colony became in law vested in the Crown. The early Governors had express powers under their commissions to make grants of land. The principles of English real property law, with socage tenure as the basis, were introduced into the colony from the beginning   Above n 5. For discussion of this case see ch 4 text to n 18ff.   A-G v Brown (n 5) 316. 24   ibid 318: ‘in a newly-discovered country, settled by British subjects, the occupancy of the Crown with respect to the waste lands of that country, is no fiction’. 25   ibid 317, see also 318. 26   Above n 13. 27   Williams (n 13) 427. 28   ibid 428. 29   ibid 439. 30   Above n 13. 31   With whom Dixon CJ, Fullagar and Kitto JJ concurred. 22 23



Occupancy and Original Crown Ownership 243 – all lands of the territory lying in the grant of the Crown, and until granted forming a royal demesne. . . . And when in 1847 a bold argument, which then had a political flavour, challenged the right of the Crown, that was to say of the Home Government, to dispose of land in the colony, it was as a legal proposition firmly and finally disposed of by Sir Alfred Stephen C.J.: The Attorney-General v. Brown.32

As already noted, however, the basis upon which Stephen CJ attributed title to all land to the Crown in A-G v Brown is equivocal. Nevertheless, in the subsequent High Court decision of New South Wales v The Commonwealth,33 Isaac J’s views in Williams were to some extent approved by Stephen J. Although this case concerned a dispute between the Commonwealth and the Australian States over the territorial sea and continental shelf, Stephen J made the following observation: That originally the waste lands in the colonies were owned by the British Crown is not in doubt. Such ownership may . . . be described as a consequence of the feudal principle which, on first settlement in Australia, was ‘extended to the lands overseas’, so that all colonial land belonged ‘to the Crown until the Crown chose to grant it’ (per Isaacs J in Williams’ Case).34

Alternatively, however, Stephen J suggested that ‘[s]uch ownership may perhaps be regarded as springing from a prerogative right, proprietary in nature’.35 Accordingly, there was no clear authority on the source of the Crown’s title to land. Pre-Mabo, it was only certain that, whether the basis of the Crown’s title to land was occupancy or the feudal principal ‘the consequence [was] the same, the lands of Australia became the property of the King of England’ (emphasis added).36 Although the consequence was regarded as the same, the distinction between the two sources of Crown title was, nevertheless, crucial in one respect. Where the Crown’s title to land is based upon the feudal fiction, as it is in England,37 ‘the property is enjoyed as that of a subject is, and by a title which admits of proof by documentary and other evidence’.38 However, where ‘the title of the Crown as universal occupant is a reality,’39 as Stephen CJ concluded in Doe d Wilson v Terry40 it was in Australia, ‘there is no proof of it required, or admissible. The acquisition of the country, and its settlement by British subjects, are matters of judicial cognizance’.41 B  The Post-Mabo Position In light of the High Court’s decision in Mabo that the title of the Crown as universal occupant is no longer a reality, the Crown only acquiring a radical title to all land, two questions are raised. First, was, or is, occupancy available as a source of original Crown ownership of land? And, secondly, in the absence of a title acquired by occupancy, does the Crown’s title require proof by documentary and other evidence?   Council of the Municipality of Randwick (n 13) 71.   New South Wales v The Commonwealth (1975) 135 CLR 337 (HCA). 34   ibid 438–39. 35   ibid 438. 36   NSW v Commonwealth (n 33) 439 (Stephen J) citing A-G v Brown (n 5). 37   Doe d Wilson (n 13) 508 (Stephen CJ). See also A-G v Brown (n 5) 318. 38   Doe d Wilson (n 13) 509 (Stephen CJ). 39   ibid 508–09. 40   Above n 13. 41   Doe d Wilson (n 13) 509. 32 33

244  Crown Acquisition of a Plenary Title i  Were the Requirements of Occupation Satisfied upon Settlement of Australia? The majority of the Mabo High Court rejected the proposition that the Crown acquired absolute beneficial ownership of all land in Australia by occupancy on the basis that, since sovereignty and property rights are doctrinally distinct, the fact that the continent of Australia was not uninhabited at the time of settlement meant that ownership could not be acquired by occupying land that was already occupied by another.42 Although this appears, prima facie, to leave open the possibility that the Crown could have acquired unoccupied land by occupancy, there are two reasons for denying such a view: one general and one specific. First, on general principles, although territorial sovereignty43 was essential to the feudal system of land tenures, it is not essential to the Australian system of land tenure. It was seen in chapter one that, pre-Mabo, when sovereignty of a territory was acquired under the enlarged notion of terra nullius for the purpose of international law, that territory was treated as a ‘desert and uncultivated’ country for the purpose of the common law doctrine of reception because there was an absence of ‘settled inhabitants’ and ‘settled law’.44 In such circumstances, the Crown’s sovereignty over the territory was equated with Crown ownership of the lands therein.45 Thus, under strict feudal theory, when a territory was acquired by occupancy, any land within the settlement would have been acquired at the same time since the Crown’s occupancy of the territory as a whole would have extended to them.46 Although this is the position under systems of land ownership in which property and sovereignty are fused, such theorising has no relevance to systems in which sovereignty and ownership are doctrinally distinct, such as Australia. The High Court’s rejection of the classification of Australia as ‘desert and uncultivated’ at common law has undermined both the ‘factual’ and ‘feudal’ basis for attributing absolute beneficial ownership of all land in Australia in the Crown.47 The second, and specific, reason for denying the Crown’s acquisition, upon settlement, of unoccupied land in Australia by occupancy is that the requirements for acquiring property rights by the natural law48 mode of ‘occupatio’ were not satisfied by the Crown. Occupation is a natural law49 mode of original ownership:50 res nullius cedit occupanti. It involves the taking of possession of corporeal things over which no one has 42   Mabo (n 2) 45 (Brennan J, Mason CJ and McHugh J concurring): ‘ownership could not be acquired by occupying land that was already occupied by another’, 180–82 (Toohey J): ‘occupation of land by indigenous inhabitants would have excluded occupancy by the Crown after annexation, except in land truly vacant’. 43   In which sovereignty and the right to possession of lands were treated by the law as fused: HS Maine, Ancient Law: Its Connection with the Early History of Society and its Relation to Modern Ideas, with Introduction and Notes by F Pollock (London, J Murray, 1920) 105, 108. 44   Cooper v Stuart (1889) 14 App Cas 286 (PC) 291 (Lord Watson). 45   A-G v Brown (n 5) 319 (Stephen CJ); Mabo (n 2) 40 (Brennan J). 46   For the application of this principle to an uninhabited territory see Falkland Islands Co v R (1863) 2 Moo (NS) 266; 15 ER 902 (PC). 47   See ch 3 text to n 91ff. 48   Jus naturale (natural law) versus jus gentium (law of nations). 49   Jus naturale, the law of nature, is the law which nature has taught all animals. Accordingly, the law is not peculiar to humans, but belongs to all living creatures. cf Jus gentium, universal law or the law of nations, which is the law that natural reason has prescribed for all mankind and is held in equal observance amongst all people: RW Lee, The Elements of Roman Law, 4th edn (London, Sweet & Maxwell Ltd, 1956) 43–44. 50   The other modes of acquiring original ownership were: Accessio (encompassing fructus, alluvio, adjunctio (which itself encompassed inaedificatio, plantatio, scriptura, pictura and satio), confusio and specificatio), and prescriptio (developed from usucapio). cf the modes of derivative ownership: traditio, legatum and adjudicatio: WL Burdick, The Principles of Roman Law (Florida, WMW Gaunt & Sons Inc, 1989) 333–34.



Occupancy and Original Crown Ownership 245

a proprietary right with the intention of making them one’s own property.51 Although the several applications of this title that were specified by the classical jurists did not refer to land in general,52 Blackstone pointed out that: [O]ccupancy is the thing by which the title was in fact originally gained; every man seising to his own continued use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else. Property, both in lands and moveables, being thus originally acquired by the first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own use, it remains in him, by the principles of universal law, till such time as he does some other act which shews an intention to abandon it.53

There is a sharp distinction between title and possession in Roman law, the two usually being acquired separately. Under occupatio, however, both title and possession are acquired simultaneously. In order for occupation to have its full legal effect, there are four requirements which must be met. First, the thing must be a res nullius: have no owner at the time of its occupation. Secondly, it must be res in commercio: a thing capable of ownership. Thirdly, the person purporting to acquire it must have an intention of assuming ownership in it. And, fourthly, the person purporting to acquire it must take actual possession or control of it.54 Julius Goebel describes the mental and physical elements required to acquire by occupatio in the following terms: The means by which occupation was effected was by the taking possession of res nullius. Possession, in turn, meant not alone the material apprehension of the thing, but the accompanying intention, to hold it pro suo or for another. If this intention existed, it was necessary that it should contemplate an exclusive control for an indefinite period. Of equal importance in the process was the act – the taking possession – and this must be some physical act, for no mere declaration was sufficient; and this act in relation to unoccupied land had to be of economic significance. The mere casual presence upon the land was not sufficient; it was necessary to take possession, entering upon the land, and such entry was regarded, because of the notion of physical control which it conveyed, to be sufficient to affect the land in the immediate vicinity.55

Although land in Australia,56 being a thing over which rights of property can be exercised, and therefore res in commercio or res in patrimonio,57 satisfied the second requirement of acquisition of title by occupatio, land in the Australian colonial context did not satisfy the remaining three prerequisites. With respect to the requirement that the land have no owner, the Mabo Court unanimously agreed that, factually, the Australian continent was not uninhabited at the time   ibid 334. See also Co Litt 41b.   The most important application of occupatio was in relation to things abandoned by a former owner (res derelictae), enemy property and wild animals, but it also applied to precious stones and gems in a state of nature, things found on the seashore and to islands arising in the sea: A Stephenson, A History of Roman Law: With a Commentary on the Institutes of Gaius and Justinian (Boston, Little, Brown & Co, 1912) 386. 53   2 Bl Comm 8–9. 54  Stephenson A History of Roman Law (n 52) 385. 55   J Goebel, The Struggle for the Falkland Islands: A Study in Legal and Diplomatic History, reprint (New York, Kennikat Press, 1971) 72. 56   Being a res corporale. 57   In Roman law, things were classified as either res in patrimonio, or in commercio, ie belonging to someone, or as res extra patrimonium, or extra commercium, ie incapable of individual ownership because they were common to all mankind: Stephenson (n 52) 377–78. 51 52

246  Crown Acquisition of a Plenary Title of British settlement. Indeed, Deane and Gaudron JJ suggested that it was ‘conceivably’ the whole of the lands of Australia that were affected by native title.58 Significantly, since the presence of a pre-existing native title interest cannot be indicated by any inquiry other than a determination of native title pursuant to the Native Title Act 1993 (Cth) (NTA),59 until such a determination is made the extent of native title interests in respect of any land in Australia is uncertain. Moreover, in the absence of such determination in respect of the whole of the lands in Australia at settlement, it cannot be conclusively stated what land in Australia was or was not res nullius.60 With respect to the requirement that there be an intention of assuming ownership, it was seen in chapter four that the early Imperial and colonial enactments and precedents merely recognised the Crown’s right to grant interests in land; they did not, nor did they need to, assert any property rights of the Crown in unalienated land.61 Moreover, preMabo authority assumed, rather than conferred, the Crown’s title to unalienated land. This is crucial: the pre-Mabo assumption that the Crown was the beneficial owner of all land in Australia is arguably inconsistent with an intention of assuming ownership. That is, the very fact that Crown ownership of all land was regarded as a necessary consequence of acquiring sovereignty suggests that while there was an intention to acquire sovereignty, there was no distinct or independent intention to acquire ownership. With respect to the final requirement of occupatio, actual possession of the whole of Australia by the Crown, it is clear that, under the Australian doctrine of tenure ad veritatem, it is not necessary for the Crown to be deemed to have actual possession of any land unless it is required to support the doctrine of tenure when the Crown has exercised its sovereign power to grant an interest in land. That is, because the doctrine of tenure ad veritatem applies only to land which has in fact been granted by the Crown, it is juridically irrelevant except in respect of a tenure created by Crown grant.62 Application of the feudal fiction to land which has not been dealt with by the Crown is not necessary to support the Australian doctrine of tenure.63 Furthermore, where the Crown has actual possession of certain land, there is no need for any deemed possession. Moreover, although an actual exercise of sovereign power to grant unalienated and unoccupied land results, at common law, in the application of the fiction that the Crown must at one time have been in possession of and, therefore, owner of the land, such deemed ‘fictional’ possession is limited to the purpose for which it was invented: to

58   Mabo (n 2) 101. However, their Honours considered it ‘unnecessary for the purposes of [their] judgment, and probably now impracticable, to seek to ascertain what proportion of the lands of the continent were affected by such common law native title’. 59   The NTA provides a procedure for determining whether native title exists and, if it does, what rights comprise it: Pts 3, 4. The terms ‘determination of native title’ and ‘approved determination of native title’ are defined for the purposes of the NTA in ss 225 and 13(3)(a) respectively. 60   And although there have been some positive as well as negative determinations made pursuant to the NTA, it will be seen in ch 7 that even if native title is held to have been extinguished, the Aboriginal laws and customs upon which it was based continue and are capable of recognition under the doctrine of Aboriginal customary title. 61   See ch 4 text to nn 40–57. See also below text to n 232ff. 62   See ch 3 text to n 19ff. 63   It is probable that the fiction of original Crown ownership, which has its origins in the confusion of sovereignty and ownership, itself influenced the evolution of the rule that occupancy of part of a territory in the name of the whole extends to the whole. In that event, the High Court’s rejection of the former (at least in its application to land which has not been brought within the doctrine of tenure ad veritatem) must entail rejection of the latter.



Occupancy and Original Crown Ownership 247

explain how a particular feudal relationship arose.64 The deemed possession and any resulting title by occupancy would, therefore, be limited to the minimum necessary to support the doctrine of tenure; that is, merely for the duration of the grant. Where a grant has terminated, no feudal relations exist. While the Crown’s sovereign powers at common law to grant interests in land and to appropriate unalienated land for public purposes have been displaced by statutory powers,65 it was seen in chapter four that not only did the Wik High Court conclude that a fictional reversionary interest was unnecessary in the case of the statutory alienation of a pastoral lease but, as a result of the rationales underlying the decision in Wik, a fictional deemed possession supplied by the fiction of original Crown ownership was unnecessary in the case of any statutory alienation.66 It will be seen that the High Court’s decision in Western Australia v Ward67 provides further support for this view.68 Whether at common law or pursuant to statute, therefore, the Crown could not acquire the necessary possession for a title by occupancy in such circumstances. In the Australian context, there must be actual possession of land in order to support the Crown’s acquisition of title by occupancy. That is, in respect of unoccupied land in Australia, Goebel’s description of the physical element of taking possession is apposite.69 Crucially, however, there is judicial support for the view that the Crown did not have the requisite ‘actual possession’ of all land in the Australian context for the purpose of acquiring title by occupancy. In Doe d Wilson,70 Stephen CJ (delivering the judgment of the Supreme Court of New South Wales) observed that the lands in newly-discovered and ‘legally’ unpeopled territories are: [U]noccupied and waste, until granted by the Crown to some individual, willing to reclaim them from a state of nature. The Crown derives no ‘profits’ from them, and could in the literal sense no more ‘possess’ them than it could the animals which roam, unmolested, over the vast area which they embrace.71

Stephen CJ did, nevertheless, conclude that in Australia ‘the title of the Crown as universal occupant is a reality’.72 Without referring to the conditions necessary to establish a title by occupancy, Stephen CJ simply observed that ‘[t]he acquisition of the country, and its settlement by British subjects, are matters of judicial cognizance’.73 It appears, therefore, that, as a result of the then understanding of the doctrine of tenure and its   See ch 1 text to nn 114–19; ch 3 text to nn 57–61: ch 4 text to n 81.   See above n 6. 66   See ch 4 text to nn 123ff, 214ff. 67   Western Australia v Ward [2002] HCA 28, (2002) 213 CLR 1. 68   See below text to 212ff. 69   Indeed, Goebel’s analysis is supported by Marshall CJ’s advocacy of the dominative code as the true basis of the Crown’s property rights in the context of American doctrine. For Marshall CJ, the Crown could not be said to be seised in fee unless it had taken actual possession of the land. Although the dominative code concerned the acquisition of a valid title against rival Europeans at the international level, all that discovery conferred was a right to acquire title, not title itself. That title could only be consummated at the municipal level by taking juridical possession. Thus the Crown’s sovereign rights could only mature into full rights of property when actual possession had been taken: see ch 2 text to n 143ff. cf Mitchel v United States 34 US 711, 745 (1835) (USSC) where Baldwin J delivered the opinion of the last Marshall Court decision involving Aboriginal land rights stating that, subject to the Indian right of possession, ‘the ultimate fee was in the crown and its grantees’: see discussion by McNeil, Common Law Aboriginal Title (n 4) 253–55. 70   Decided in 1849: see above n 13. 71   Doe d Wilson (n 13) 508. 72   ibid 509. 73  ibid. 64 65

248  Crown Acquisition of a Plenary Title accompanying fiction of original Crown ownership, the Crown was deemed to have possession of all land in Australia rather than actually having possession of all land. Indeed, the need for actual, rather than deemed, possession of land to support the Crown’s acquisition of a title by occupancy is reinforced by the High Court’s obiter comments in Yanner v Eaton74 concerning the effect of a purported legislative vesting of res nullius. In Yanner, the High Court made it clear that in the context of property that is res nullius at common law, a statutory declaration of Crown property or a legislative provision which vests property in the Crown is nothing more than a ‘fiction’ for the purpose of enabling the Crown to regulate the exploitation of the res nullius.75 In the context of res nullius, declarations of property and vesting provisions do not, of themselves, confer beneficial ownership.76 Such ‘ownership’ of res nullius is not a true ownership; there must be an actual dealing with the res nullius. It is, nevertheless, clear that the Crown acquired title to some land in Australia by occupancy upon settlement and subsequently. It is also clear that there remains unalienated and unoccupied land in respect of which the Crown has not acquired title in this way. Acquisition of title by occupancy is one way of converting the Crown’s radical title   Yanner v Eaton [1999] HCA 53, (1999) 201 CLR 351.   ibid [28] (Gleeson CJ, Gaudron, Kirby and Hayne JJ). The majority considered that the word ‘property’ is a description of a legal relationship with a thing, like fauna, rather than a reference to the thing. As a ‘legally endorsed concentration of power over things and resources’, rather than the thing or resource itself, Crown property in fauna was a ‘fiction’ to support the Crown’s power to regulate the exploitation of fauna. In this context, the majority referred to Roscoe Pound’s explanation of why things not the subject of private ownership, like wild animals, are spoken of as being publicly owned: ‘We are also tending to limit the idea of discovery and occupation by making res nullius (eg, wild game) into res publicae and to justify a more stringent regulation of individual use of res communes (eg, of the use of running water for irrigation or for power) by declaring that they are the property of the state or are “owned by the state in trust for the people”. It should be said, however, that while in form our courts and legislatures seem thus to have reduced everything but the air and the high seas to ownership, in fact the so-called state ownership of res communes and res nullius is only a sort of guardianship for social purposes. It is imperium, not dominium’: ibid [29]. According to the High Court, therefore, declarations of Crown property in things which are not, in fact, the subject of private ownership, whether because they are res nullius or res communes, do not equate to beneficial ownership. In particular, the statement (at [28]) that ‘native animals belong to the people in just the same way as . . . the minerals belong to the people’, makes it clear that the majority of the Yanner High Court was of the view that declarations of Crown property in both fauna and minerals do not confer beneficial title to the fauna or minerals on the Crown. Nevertheless, the majority of the Ward High Court observed that, by s 117 of the Mining Act 1904 (WA) and s 9 of the Petroleum Act 1936 (WA), the Crown appropriated to itself an interest in the minerals and petroleum which amounted to full beneficial ownership: Ward (n 67) [383], [377] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See also Western Australia v Ward [2000] FCA 191, (2000) 99 FCR 316 (FCAFC) [541] (Beaumont and von Doussa JJ); cf Ward v Western Australia (1998) 159 ALR 483 (FCA) 577–81 (Lee J). The Ward High Court was, however, concerned with the grant of interests under the Mining and Petroleum Acts and their effect on native title rights generally, rather than the purported legislative vesting of property in minerals and petroleum. Thus, the majority’s conclusion that legislation purporting to vest property in minerals and petroleum in the Crown has the effect of converting the Crown’s radical title to those resources to full beneficial ownership is mere obiter dicta. Indeed, the majority concluded that ‘the grant of a mining lease is [not] necessarily inconsistent with all native title’: Ward (n 67) [308]. Furthermore, in Commonwealth v WMC Resources Ltd [1998] HCA 8, (1998) 194 CLR 1 [23] Brennan CJ found it unnecessary to decide ‘what the effect might be of a law of the Commonwealth (if the Commonwealth were ever to enact such a law) that purported to declare its property in the continental shelf’. This issue was left open because the Act under consideration, the Petroleum (Submerged Lands) Act, did not purport to do so. Although Brennan CJ held that the Commonwealth had the power to legislate in respect of the exploration of and the exploitation of the resources of the continental shelf, he found that the Commonwealth had no property in the continental shelf at common law. See also ch 5 text to n 35ff. In light of the majority of the High Court’s reasoning in Yanner and decision in Ward, however, a declaration of Crown property in the continental shelf, being res nullius at common law, would not confer full beneficial ownership. 76  See also the High Court’s treatment of legislative provisions providing for the resumption/vesting of Crown land which has previously been alienated: below text to n 215ff. 74 75



Occupancy and Original Crown Ownership 249

to unoccupied land into beneficial ownership: where land is unoccupied and the Crown exercises its sovereign power to appropriate the land to itself by taking actual possession, or making actual use, of the land, the requirements for the acquisition of title by occupancy are effectively satisfied. The Crown’s radical title is not, however, limited to unoccupied land and an appropriate exercise of sovereign power can also convert the Crown’s radical title to land occupied by native titleholders into beneficial ownership. Where land is occupied pursuant to a Crown grant, however, the Crown must exercise its statutory power to effect acquisition of property.77 This analysis leaves a crucial issue unresolved: what if, before the Crown exercises its sovereign power to convert its radical title to particular land into beneficial ownership (including by the acquisition of title by occupancy), the land is occupied by a subject yet the occupation is neither pursuant to a native title interest nor a Crown grant? Although, pre-Mabo, acquisition of title by occupancy was severely restricted by the fiction that all lands were originally possessed, and accordingly, owned, by the Crown,78 it has been seen that since Mabo this fiction only applies in respect of a tenure created by Crown grant.79 Accordingly, the fiction of original Crown ownership can no longer, of itself, exclude acquisition of first title to unalienated and uninhabited real property in Australia.80 Nevertheless, another pre-Mabo objection to a subject acquiring title to land by occupancy was the rule that acquisitions beyond the realm by the Crown’s subjects accrue de jure to the Crown.81 The principle on which this rule rests is that the Crown is the only source of title; all proprietary rights are to flow from the Crown as lord paramount in accordance with the feudal doctrine of tenure.82 Lester has pointed out that, on the assumption that the Crown acquired title to all land other than that occupied by Aboriginal inhabitants upon acquisition of sovereignty, the only people who could be said to be in juridical possession before the Crown’s own title accrued were the Aboriginal inhabitants.83 In the pre-Mabo decision of R v Lord Yarborough,84 however, Best LCJ (relying on Locke) stated that ‘all [original] titles to land have been acquired by individuals . . . by occupation and improvement’.85 And it has been seen that, postMabo, the Crown’s acquisition of a radical title to all land upon assumption of sovereignty did not automatically entitle the Crown to beneficial ownership of any land.86   See ch 4 n 104.   2 Bl Comm 51; McNeil (n 4) 11. Indeed, the Crown has been referred to as ‘universal occupant’ in this context: R v Steel (n 13) 66 (Forbes CJ); A-G v Brown (n 5) 318 (Stephen CJ delivering the judgment of the Court); Doe d Wilson (n 13) 509 (Stephen CJ). Thus, pre-Mabo, a subject could only set up proprietary rights in land against the Crown if he could produce a grant or other lawful authorisation. 79   See generally ch 3. 80   There is, therefore, the potential to accommodate sources of title in addition to Crown grant or native title within Australian land law. This is further explored in ch 7. 81  See Campbell v Hall (1774) Lofft 655, 708; 98 ER 848, 878 (KB) where Lord Mansfield said: ‘All colonies have been established by grants from the Crown . . . [I]t should be understood that no colony can be settled without authority from the Crown’. See also R v Symonds (1847) [1840–1932] NZPCC 387 (NZSC) 389, 390 (Chapman J); GS Lester, The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument (DJuris thesis, York University, 1981) 1007, 1031. 82   It was seen in ch 2 that Chapman J’s classic statement of this rule, in Symonds (n 81) 389–90, explained the legal nature of the respective rights of the Crown and the Aboriginal inhabitants: ch 2 text to n 216ff. 83  Lester, The Territorial Rights of the Inuit of the Canadian Northwest Territories (n 81) 1031. 84   R v Lord Yarborough (1828) 2 Bli (NS) 147, 4 ER 1087 (HL). 85   ibid 159. 86   It will also be seen that the High Court’s treatment of the statutory definition of ‘Crown land’, combined with the Court’s analysis of the policy and purpose of legislation relating to Crown land, and in particular statutory trespass provisions, as well as the legislative provisions dealing with the constitutional power to legislate 77 78

250  Crown Acquisition of a Plenary Title Thus, until the Crown exercises its sovereign power to appropriate land to itself or grant land to a subject, the people who can be in juridical possession before the Crown’s own title accrues are no longer limited to Aboriginal inhabitants. Indeed, the Northern Territory Court of Appeal’s recent decision in Step v Hinton87 is not inconsistent with the acquisition of first title to unalienated land by occupancy. The defendant had been convicted (in the Northern Territory Court of Summary Jurisdiction) of trespassing on two unalienated vacant parcels of Crown land after direction to leave, contrary to section 7(1) of the Trespass Act (NT).88 His appeal to the Supreme Court of the Northern Territory was dismissed on the ground that section 6(4) of the Limitation Act (NT) prevented title by adverse possession being obtained against the Crown.89 Although the Court of Appeal90 dismissed his appeal for the same reasons as the Supreme Court, they also relied on section 4 of the Crown Lands Act (NT) which provides for how Crown lands can be alienated.91 Thus, the Court of Appeal held that the defendant did not obtain an interest in the land pursuant to the Crown Lands Act92 and that the Limitation Act prevented him from obtaining title to the land by adverse possession.93 The issue was whether the Crown had established that the defendant was a trespasser under the Trespass Act.94 The Court found that ‘[t]here was no dispute that the notice served . . . pursuant to s 7(1) of the Trespass Act complied with the requirements of the Act’ and that ‘having regarding Crown land, support the common law interpretation of the Crown’s radical title as a bare legal title rather than beneficial ownership except to the extent of native title: see below text to n 195ff. Indeed, in the event that the Crown is held to have acquired a beneficial title to unalienated land as a result of the enactment of Crown lands legislation, the argument that radical title is merely a bare legal title rather than a full proprietary right is intact: beneficial title vests in the Crown by force of the statute rather than the common law. 87   Step v Hinton [2012] NTCA 3. 88   After moving onto the land in 2001, the defendant lived there on a continuous basis and conducted himself as if he were the rightful occupier of the land although not holding a lease or licence or any other permission to be on the land. He erected certain structures on the land, including a rough dwelling, a shed and a water tank. He also constructed a gate across the entrance to the land and posted a sign stating ‘no trespassers’. The Northern Territory Government became aware of the defendant’s occupation of the land in 2009 and served him with notice in writing to vacate the land. After the defendant refused to vacate the land, he was served with a notice pursuant to s 7(1) of the Northern Territory Trespass Act requiring him to cease trespassing on the land and advising that failure to do so would result in prosecution proceedings being instituted against him. The defendant failed to vacate the land and on 3 November 2010 he was found guilty of trespass and convicted. 89   Limitation Act (NT), s 6(4). It provided: ‘Notwithstanding any law or enactment now or formerly in force in the Territory, the right, title or interest of the Crown to or in land shall not be and shall be deemed not to have been in any way affected by reason of the possession of such land adverse to the Crown for any period’. 90   Riley CJ, Kelly and Barr JJ. 91   This section provided: ‘(1)  Subject to subsection (2), Crown lands shall not be alienated from the Crown otherwise than in pursuance of this Act. (2) This section does not affect: (a) the granting of a lease in pursuance of an agreement or right in existence at the commencement of this Act; (b) the granting of an estate in fee simple in pursuance of an Act; (c) the granting of a lease in pursuance of an Act; or (d) the granting of an estate in fee simple under the Aboriginal Land Rights (Northern Territory) Act 1976 of the Commonwealth’.   Step v Hinton (n 87) [13].   ibid [12]. 94   ibid [11]. 92 93



Occupancy and Original Crown Ownership 251

been directed to leave the land the [defendant] failed and refused to do so’.95 Crucially, however, despite holding that, ‘[a]t the time of his entry upon the land, the [defendant] was a trespasser’, the Court observed that ‘[t]here was no suggestion that, at that time, he had any right of any kind to enter upon the land’.96 Implicit in this reasoning is acknowledgment of a right to enter upon Crown land other than pursuant to some grant under the Crown Lands Act which is not contrary to the Limitation Act. And it is clear that this includes the right of native titleholders which is not derived from Crown grant. Indeed, there were two limbs to the defendant’s argument. The first, which is consistent with acquisition of first title by occupancy, is familiar: the Crown acquired a radical title to the land which gave the Crown sovereign powers to grant land to whom it chose and to appropriate to itself the beneficial ownership of parcels of land for the purposes of the Crown but that it did not of itself carry beneficial ownership of land.97

‘The Crown did not’, therefore, ‘have a proprietary title or freehold possession or right to possession of the land’.98 As a result, the defendant’s ‘possession of the land was not adverse to the Crown and did not affect in any way any right, title or interest of the Crown to the land’.99 The second limb, however, departed from the law relating to occupancy: the defendant argued ‘that over time he obtained some form of inchoate estate in the land’ (emphasis added).100 It is on this point that the argument failed: it ‘ignore[d] the provisions of the Crown Lands Act and of s 6(4) of the Limitation Act’.101 The Court also observed that ‘[r]egardless of whether the entitlement of the Crown is to a radical title only or to full beneficial ownership of the land, the possessory interest claimed by the [defendant] would, if successful, be adverse to the interest of the Crown’.102 This is important: while the Court did not refer to any of the authorities regarding the Crown’s radical title or decide the legal nature of the Crown’s title to the land in question, because it was dealing with unalienated vacant land, it is consistent with the proposition that the Crown has mere radical title to unalienated land whether or not the land is subject to native title. The decision emphasises that claims of title to unalienated Crown land cannot proceed on the basis of acquiring a possessory right over time as this is inconsistent with the requirement of an initial intention to assume ownership by occupancy and with the Limitation Act. Indeed, contrary to the first limb of the defendant’s argument, such a claim effectively accepts that the Crown is being ‘dispossessed’ of some presumed right. Furthermore, it will be seen that if a person in the position of the defendant in Step v Hinton pleaded their case to properly reflect acquisition of first title by occupancy, the Court of Appeal’s conclusion that the defend­ ant was a trespasser would not be supported by the High Court’s analysis of statutory trespass provisions in Mabo and Wik.103 However, because the defendant’s request for special leave to appeal to the High Court was dismissed on the ground that the Limitation Act and Crown Lands Act left ‘no room for the applicant to succeed’,104 the  ibid.   ibid [15]. 97   ibid [9]. 98  ibid. 99   ibid [10]. 100   ibid [15]. 101  ibid. 102   ibid [10]. 103   See below text to n 263ff. 104   Step v Hinton [2012] HCASL 84 (20 June 2012) [4]–[5]. 95 96

252  Crown Acquisition of a Plenary Title High Court did not consider the issues of acquisition of first title by occupancy or statutory trespass. Nevertheless, consistent with the first limb of the defendant’s argument in Step v Hinton, it is clear that post-Mabo there are two fundamental objections to subjects being precluded from acquiring title by occupancy because of the rule that all acquisitions accrue de jure to the benefit of the Crown.105 First, the rationale for the rule – namely, that the Queen is the exclusive source of title – flows from the feudal doctrine of tenure and its accompanying fiction of original Crown ownership.106 In the context of the doctrine of tenure ad veritatem, the fictional basis for the rule that the Crown is the exclusive source of title only applies in respect of land subject to a Crown grant.107 Consequently, the rule cannot operate in relation to land which has not been brought within the doctrine of tenure: unalienated land. This conclusion necessarily questions the proposition that native title is inalienable except to Crown.108 Indeed, the Crown’s exclusive right of pre-emption in relation to native title interests is also questioned by the second objection to the rule that all acquisitions accrue de jure to the benefit of the Crown: that the rule confuses sovereignty and property. Although the Crown has the exclusive right to acquire sovereignty,109 it does not necessarily follow that the Crown has the exclusive right to acquire title. Importantly, when Chapman J applied the rule in R v Symonds,110 he concluded that if a subject purchased the Aboriginal title to a particular parcel of land, this did not mean that the purchase was absolutely null and void. Rather: If care be taken to purchase off the true owners, and to get in all outstanding claims, the purchases are good as against the Native seller, but not against the Crown. In like manner, though discovery followed by occupation vests nothing in the subject, yet it is good against all the world except the Queen who takes. All that the law predicates of such acquisitions is that they are null and void as against the Crown: and why? because ‘the Queen is the exclusive source of title’.111

Thus, the reason for holding that a subject’s acquisition of title by either occupancy or purchase from a native is null and void as against the Crown was that the Crown is the exclusive source of title; a reason which, being based upon the feudal doctrine of tenure, is inappropriate in the context of post-Mabo Australian land law. Indeed, it was seen in chapter three that Brennan J’s leading judgment in Mabo distinguished Chapman J’s analysis in Symonds when explaining the limitation upon the alienability of native title other than to the Crown. Brennan J’s (and thus the Mabo High Court’s) explanation was that, although recognised by the common law, native title ‘is not an institution of the common law and is not alienable by the common law. Its alienability is dependent on the law from which it is derived’.112 And because ‘the rights and interests which constitute a native title can be possessed only by the indigenous inhabitants and their descendants,’113 Brennan J concluded that ‘a right or interest pos  See also ch 2 text to n 216.   Symonds (n 81) 388 (Chapman J). 107   See ch 3 text to n 19ff, esp n 29. 108   But see below text to nn 112–17. See also ch 3 text to nn 314–25. 109  See Secretary of State for India v Chelikani Rama Rao (1916) 43 LR Ind App 192 (PC). 110   Above n 81. 111   Symonds (n 81) 390. 112   Mabo (n 2) 59. 113  ibid. 105 106



The Record Requirement 253

sessed as a native title cannot be acquired from an indigenous people by one who, not being a member of the indigenous people, does not acknowledge their laws and observe their custom’.114 However, ‘once the Crown acquires sovereignty and the common law becomes the law of the territory, the Crown’s sovereignty over all land in the territory carries the capacity to accept a surrender of native title’.115 Accordingly, Brennan J framed his explanation for the limitation on the alienability of native title in terms of the common law: the concomitant of sovereignty limb of the Crown’s radical title to land.116 The Crown has the exclusive right to acquire land subject to an interest which is inalienable by the common law.117 This does not, therefore, affect the legal status of subjects who acquire an original common law title to land which is alienable by the common law, even if such title is acquired after the Crown’s acquisition of sovereignty.118 Thus, if a subject acquires title by occupancy, it will not be null and void as against the Crown. Nevertheless, post-Mabo it is clear that once the Crown acquires sovereignty the Crown may extinguish native title by an appropriate exercise of its sovereign power which converts its radical title to the land into beneficial ownership. Would this also be the case in respect of a title acquired by a subject via occupancy (or other valid common law mode of acquiring original ownership)? That is, although the fiction of original Crown ownership and the consequential rule that acquisitions accrue de jure to the bene­fit of the Crown are no longer sufficient to preclude a subject’s acquisition of title by occupancy, can the Crown simply exercise its sovereign power to extinguish such title? It will be seen that, in contrast to the position with respect to extinguishment of interests held pursuant to native title, it is in the context of a title acquired at common law (including by occupancy) that the owner is entitled to demand that the Crown produce a documentary source of title in its own hands and to do this must first proceed with an office found. That is, the Crown must have a record of its title. II  THE RECORD REQUIREMENT

The argument that, unless it can be made to appear how and why the Crown has title, the Crown’s title is not to be presumed is not new. That is, after all, the function of the office of entitlement: the Crown can be put to its proof. Indeed, in A-G v Brown, the defendant argued that the Crown had neither property in, nor possession of, the waste lands of New South Wales.119 Consequently, if the Crown were to succeed in intrusion, it had to prove its title by means of a record; by an office found.120 114   ibid 60. Brennan J also noted that ‘the laws and customs of an indigenous people did not generally contemplate the alienation of the people’s traditional land’: ibid 51. 115   ibid 60. 116   cf Mabo (n 2) 88: in the context of the limitation on the alienability of native title, Gaudron and Deane JJ referred to Symonds (n 81) and Johnson v M’Intosh 21 US 543 (1823) (USSC) and observed that ‘it is commonly expressed as a right of pre-emption in the Sovereign, sometimes said to flow from “discovery”’. 117   Mabo (n 2) 51, 59 (Brennan J), 88 (Deane and Gaudron JJ). cf ibid 194 (Toohey J). 118   cf common law Aboriginal customary title (discussed in ch 7) which, despite being a common law right, is not alienable by the common law. 119   See ch 4 text to nn 26–27. 120   That is, the Crown could not maintain actions in trespass or intrusion, for these actions assumed that the Crown had possession.

254  Crown Acquisition of a Plenary Title Significantly, the following people were in exactly the same position as the defendant in A-G v Brown: the plaintiff in error in Johnson v M’Intosh,121 the informant in Symonds122 and the British South Africa Company in Re Southern Rhodesia.123 Although it was held that none of these parties could take beneficially against the Crown,124 it was seen in chapter two that in Re Southern Rhodesia Lord Sumner declared that: Theoretically, it is possible to say that the unalienated lands do not belong to anybody, but . . . if these lands are not shown to belong to any private owner the practical conclusion would seem to be that they are the Crown’s, but here, too, unless it can be made to appear how and why they are the Crown’s, the question of ownership cannot properly be answered in the Crown’s favour.125

Two crucial points emerge from this passage: first, unalienated lands can be shown to belong to a private owner and, secondly, even if unalienated lands are not shown to belong to a private owner, ownership thereof is not automatically attributed to the Crown: it is a question of fact. Indeed, although suggesting that the Crown must be the absolute beneficial owner of unoccupied and unalienated lands because there is ‘no other proprietor’ in Mabo, Brennan J (with whom Mason CJ and McHugh J concurred) recognised that not all unalienated land in Australia is subject to native title. The land is unoccupied because neither the Crown nor Aboriginal people occupy it. If, however, there is a legal explanation to the question of property rights in unalienated land, there is no need to resort to a new legal fiction, that is, the ‘no other proprietor’ fiction.126 Thus, notwithstanding Stephen CJ’s rejection of the defendant’s claim in A-G v Brown, it will be seen that the defendant’s argument was not inconceivable.127 There is ‘a clear rule’ that the King can only grant to or take from a subject by record.128 The object of this rule is to support the ‘fundamental principle of English law, that the King may not enter upon or seize any man’s possessions upon bare surmises, without the intervention of a jury’.129 Unless the Crown’s possession and title are original (as in the case of land acquired by occupancy) for the Crown to be in possession in the first place, it must have a recorded title. That is, the Crown has possession because it has title, not vice   Above n 116.   Above n 81. 123   Re Southern Rhodesia [1919] AC 211 (PC). 124   See generally ch 2. See also Lester (n 81), who discusses the case of King v Lydius (23 June 1763, apparently unreported) and the parliamentary committee’s hearing of what Lester designated the ‘Case of Carlisle’ (1647, parliamentary committee dissolved without reaching a decision) at 284–97 and 321–34 respectively. The ‘Case of Carlisle’ is also discussed by McNeil (n 4) 137–41. It must be emphasised that these cases/hearings were all decided/heard when the rule that all acquisitions accrue de jure to the Crown’s benefit was accepted as applying universally. 125   Southern Rhodesia (n 123) 231. See also ch 2 text to n 115. 126   Objections to the ‘no other proprietor’ principle are considered in ch 4 section 1. 127   Indeed, apart from attributing the power to grant beneficial ownership as an incident of beneficial title and therefore denying the Crown this power, the argument was consistent with the High Court’s decision in Mabo. 128  Chitty, A Treatise on the Law of the Prerogatives of the Crown (n 4) 389–91. See also Lester (n 81) 977. McNeil has observed that this rule ‘was not confined to conveyances, for (statutes of limitation aside) unless possession was cast upon it by law, as a general rule the Crown could not acquire possession, and therefore could not take an estate or interest in land, otherwise than by matter of record’: (n 4) 95. 129   3 Bl Comm 259; Chitty (n 4) 247; Lester (n 81) 977. ‘[S]tatutes of limitations apart, the Crown could not disseise or dispossess a subject’: McNeil, Common Law Aboriginal Title (n 4) 93. This rule may have developed as a consequence of ch 29 of the Magna Carta which provides that ‘[n]o Freeman shall . . . be disseised of his Freehold . . . but by the lawful Judgement of his Peers, or by the law of the Land’: ibid 93–94. 121 122



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versa.130 It has been seen that the Crown did not acquire title to all land by occupancy upon settlement of Australia131 and that, subsequently, the Crown has only acquired title to land in Australia which it in fact occupies. Accordingly, where the party disputing the Crown’s title is in possession when the Crown’s title accrues, the Crown’s title should appear of record; the party is entitled to demand an inquest of office to show whether the Crown is entitled.132 Nevertheless, the High Court has made it clear that the rule that the Crown’s title should appear of record where a subject is in possession when the Crown’s title accrues does not apply to native titleholders. Although native titleholders were in possession before the Crown’s title accrued, not only did the Crown have prerogative power to appropriate land from native titleholders and to unilaterally extinguish native title by inconsistent grant,133 but such power was exercisable without the necessity of an office of entitlement. It will be seen, however, that the rule does apply to subjects in possession of land on the basis of occupancy (which could, of course, include Aboriginal people and/or native titleholders). The reason for this conclusion is to be found in the extent to which the prerogatives relating to land apply to the two different forms of title. It was seen in chapter three that where the constitutional situation is one of ‘settlement of inhabited territory’ the modified doctrine of reception applies. In the context of land, in addition to the doctrine of continuity pro-tempore applying, the doctrine of tenure ad veritatem automatically applies.134 Consequently, English common law principles relating to land do not immediately run into an inhabited settled colony; in particular, the common law regime governing the Australian doctrine of tenure and the restraints on the Crown’s major prerogative powers is only brought into play when the Crown grants an interest in land.135 The Crown’s prerogative rights as to property are, therefore, restrained by the common law in their application to interests derived from a valid Crown grant or otherwise secured by the rules of the common law, yet they are absolute and unconstrained by the common law in their application to interests not derived from Crown grant or otherwise secured by the rules of the common law.136 This is crucial. Although both native title and title acquired by occupancy are not derived from a valid Crown grant, there is a fundamental distinction between them. On the one hand, while native title is recognised by the common law, it is not an institution of the common law.137 On the other hand, a title acquired by occupancy is a valid means

130   McNeil (n 4) 106. Although McNeil treats the foreshore and the territorial seabed as an exception to this rule (at 103–05), see discussion in ch 5. 131   See above text to n 48ff. 132   See below text to n 146ff. See also the authorities cited above n 4. 133   cf the objections to this aspect of the High Court’s decision: ch 3 text to nn 283–95; ch 8 n 7; Lester (n 81) 1071, where he argues that the Crown’s exclusive right of preemption vis-a-vis Aboriginal title can only be exercised in accordance with law. 134   See generally ch 3. 135   See ch 3 text to nn 299, 300. See also ch 3 text to n 19ff (doctrine of tenure), n 275ff (prerogative powers). 136   But see the fundamental objections to the High Court’s limitation of the non-derogation rule: ch 3 text to nn 283–95; ch 8 n 7. See also Commonwealth v Yarmirr [2001] HCA 56, (2001) 208 CLR 1 [212] where McHugh J said that: ‘Radical title in a native title setting serves the same purpose as the fiction of the grant of an estate does in the case of the fee simple in England. If the Crown claims title to land, that fiction requires the Crown to prove its title’. 137   Mabo (n 1) 61 (Brennan J). See also Fejo (n 6) [46] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ): ‘Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law’.

256  Crown Acquisition of a Plenary Title of acquiring title at common law.138 And the rule that where a subject is in possession when the Crown’s title accrues, the Crown’s title should appear of record (like the rule that the Crown has no prerogative power to appropriate land from a subject) only applies to titles acquired at common law – including, inter alia, titles derived from Crown grant and titles acquired by occupancy or (as will be seen in the next chapter) by virtue of customary law under the doctrine of common law Aboriginal customary title.139 Consequently, where the party disputing the Crown’s title is in possession pursuant to a common law title when the Crown’s beneficial title accrues, that party is entitled to demand an inquest of office to show whether the Crown is entitled; the Crown’s title against them should appear of record. A  Inquest of Office Where a record of the Crown’s title was lacking, one of the prerogative procedures devised for providing redress for the Crown against a subject in possession was the ‘inquest of office’ or ‘office’. Chitty defined inquest of office as: [A]n inquiry made (through the medium of an indefinite number of jurors summoned by the sheriff); by the King’s officer, his sheriff, coronor, or escheator, virtute officii, or by writ to them sent for that purpose, or by commissioners specially appointed, concerning any matter that entitles the King to the possession of lands or tenements, goods or chattels.140

Offices were of two sorts: entitling and instruction, issued out of Chancery and the Exchequer Court respectively. The first was used to receive into the King’s hands lands which were in the hands of a third party. It vested the estate and possession of the land in the King where the King had but a right before. The second was used when the King thought that he had title but wanted to be confident that he was not committing an injustice by granting title to someone else. Where the possession of land was already lawfully in the King, it created a record of the location and extent of the land.141 The inquest took place before a jury, whose duty it was to determine whether the facts supported the Crown’s claim to the property in question. When the inquest found that the Crown was entitled to possession of certain property, the office, upon its return to the court from which it issued, became the record of the Crown’s title. The ‘inquest was necessary in order to complete the title of the Crown’142 and, once its title was complete, the Crown was entitled to seize the property. It sometimes happened, however, that the terms of the office so found did not, if properly construed, entitle the Crown or that the facts so found were not true or that the proof of additional facts would put a different complexion on the matter. In such cases it might be that the Crown seized property to which it was not entitled.143 The subject wrongfully ousted from his property was not, however, without a remedy: he could traverse the facts found by an office entitling the Crown to possession. Thus, by adopting either the mon  2 Bl Comm 3–9; Maine, Ancient Law (n 43) 272–73.   Or indeed the traditional exceptions to feudal tenure identified in ch 1 which, post-Mabo, can be accommodated within Australian land law as distinct sources of title. 140   Chitty (n 4) 246. Chitty had adopted Blackstone’s definition: 3 Bl Comm 258. 141   Page’s Case (1587) 5 Co R 52a, 52b; 77 ER 133, 134 (Ex). 142   Halsbury’s Laws (2nd edn, 1931–42) vol 9, para 1199. 143   WS Holdsworth, A History of English Law, vol 9, 3rd edn (London, Methuen & Co Ltd, 1944) 24. 138 139



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strans de droit or traverse of office, the subject could proceed against the Crown to recover the land.144 The general rule was that an office was necessary in all cases where a common person cannot have a possession, neither in deed nor in law, without an entry.145 Accordingly, in the absence of other record of the Crown’s title, an office was necessary to give the Crown possession whenever lands were in the possession of a subject when the Crown’s title accrued.146 In such circumstances, until the facts upon which the Crown’s title depended were made a matter of record by office, the Crown did not have possession and could not enter or seize the lands.147 According to Blackstone, an office was employed: [T]o enquire whether the king’s tenant for life died seised, whereby the reversion accrues to the king: whether A, who held immediately of the crown, died without heirs; in which case the lands belong to the king by escheat: whether B be attained of treason; whereby his estate forfeited to the crown: whether C, who has purchased lands, be an alien; which is another cause of forfeiture: whether D be an idiot a nativitate; and therefore together with his lands, appertains to the custody of the king.148

An office was not, however, necessary when the Crown’s title already appeared ‘in any shape of record’.149 In this context it has been stated that there are two exceptions to the general rule that the Crown cannot have possession without an office or other record in all cases where a common person cannot have a possession in deed or in law150 without an entry. For present purposes, the more important exception is that ‘if possession in law or a freehold, be cast upon the King, as it may be on a common person, there as the freehold ought not to be in suspense, the King is entitled and may seize without any office’.151 144   Chitty (n 4) 340, 352ff; WS Holdsworth, A History of English Law, vol 10, 1st edn (London, Methuen & Co Ltd, 1938) 343; Holdsworth, 9 History of English Law (n 143) 24–26 where Holdsworth explains that at common law, by monstrans de droit, the subject could show that the facts as found made in law a title for himself; and that it was only if the Crown was found not to be entitled to take immediate possession but only to take further proceedings by way of scire facias to get possession that the facts could be traversed. This common law position was, however, changed by statute so that the subject could traverse the facts found by the office and show his own right, or, without denying the facts, show that they gave the Crown no title to seize: 34 Ed 3 c 14; 36 Ed 3 c 13; Sadlers’ Case (1588) 4 Co R 54b, 57a; 76 ER 1012, 1017–18 (Ch). 145   Chitty (n 4) 249. See also McNeil (n 4) 96 quoting Staunford: ‘in all cases where a common person can not have a possession neither in deed nor in law without an entre’. 146   See the authorities cited above n 4. 147   See Chitty (n 4) 251 citing Staunford: ‘But if the possession were not vacant, but another than he in whose right the King seizeth, was tenant thereof at the time of the finding of the office, then the King must enter or seize by his officer, before the possession in deed shall be judged in him’. The court in Sadlers’ Case (1588) 4 Co R 54b, 58a; 76 ER 1012, 1019–20 (Ch) agreed: ‘when another is in seisin and possession at the time of the escheat, so that possess’ plena est et non vac’, there the King shall not be adjudged in possession till this seisin and possession is removed, as if the King’s tenant is disseised and dies without heir; or if an alien born, or the King’s villein, or the alienee in mortmain, is disseised, and all this is found by office, in these cases the King shall not be in possession till the possession and seisin of the terre-tenant is removed’. 148   3 Bl Comm 258. See also Chitty (n 4) 249; Holdsworth, 10 History of English Law (n 144) 343; McNeil (n 4) 96. It is clear that before 1925 the office was chiefly employed in cases where land had escheated to the Crown: Holdsworth, 10 History of English Law (n 144) 344; Halsbury’s Laws (2nd edn, 1931–42) vol 9, paras 699–701. 149   Chitty (n 4) 248. 150   For the distinction between possession in deed and possession in law see below n 154. 151   Chitty (n 4) 249. See also Lester (n 81) 274 citing J Comyns, A Digest of the Laws of England, 5th edn (London, A Strahan, 1822) 66. The other exception arises as follows: ‘Like law hath been used where his Highness is to seize lands of priors, aliens within this realm ratione guerre, his Highness doth it without any office, for in both these cases the King’s title is notorious enough although it appear not of record. But yet in

258  Crown Acquisition of a Plenary Title Thus, if possession in law was cast upon the Crown, no office was necessary. And, where land was vacant when the Crown’s title accrued, the law cast the possession on the Crown for otherwise there would have been an abeyance of seisin.152 A common example is where the Crown’s tenant in fee simple died seised without heirs.153 Although Staunford was of the view that in such circumstances the Crown acquired mere possession in law,154 in Sadlers’ Case155 it was resolved that by force of law the Crown was in actual possession immediately without office found: [W]hen the King’s tenant seised of lands in fee dies without heir, that the fee and freehold is immediately after his death, and before office found thereof, cast upon the King; for in such case it ought to be in some person, and if any person enters into the land and takes any of the profits, an information of intrusion for the King may be preferred against him before office or seisure; for the King immediately by the death is in actual possession, and has not only a freehold in law as a common person in such a case has.156

The significance, post-Mabo, of the exception to an office where possession is cast upon the Crown by law relates to the different circumstances in which possession is cast these cases his Highness must seize ere he can have any interest in his lands, because they be penal towards the party’: Chitty (n 4) 249. Thus, although an office is unnecessary in the case of lands of aliens forfeited, ratione guerre, the Crown is not considered as entitled until there is an actual seizure. 152  See Sadlers’ Case (1588) 4 Co R 54b, 58a; 76 ER 1012, 1019 (Ch): ‘when the King’s tenant dies in possession without heir, so that in such case possessio est vacua, and in nobody, there the law will adjudge the King (in whom no laches shall be reckoned) in actual possession immediately [for in such case it ought to be in some person]’. 153   ibid. Chitty (n 4) 249 cites the following examples of when possession in law was cast upon the Crown: ‘in the case of a descent in remainder or reverter; or of an escheat, if, as seems necessary in such a case, the deceased tenant held in capite or the King’s title otherwise appear of record’. Note that although reverter is often used as a synonym for reversion, reversion includes not just the return of an estate to the grantor (which is meant here) but also the residue of an estate left in the grantor to commence upon the determination of the grant. 154   See McNeil (n 4) 97 fn 79, cf 96–97. The possession, or seisin, of the Crown is of two sorts – in law and in deed: Chitty (n 4) 251; see also McNeil (n 4) 65 esp fn 276. Although ‘seisin’ is a special kind of possession, namely, possession of a freehold estate, Chitty appears to have used the two terms interchangeably. Maitland has demonstrated that the further back English legal history is traced, the more ‘perfectly equivalent do the two words seisin and possession become’: FW Maitland, ‘The Mystery of Seisin’ (1886) 8 Law Quarterly Review 481. Seisin in law was attributed to those who had an immediate right to enter upon vacant land, but had not exercised it (eg, an heir who had not entered after the death of his father, the land remaining vacant). The purpose of this doctrine of ‘constructive seisin’ was merely to allow some of the advantages of seisin to be conferred upon such a person without minimising the importance of seisin: AWB Simpson, A History of the Land Law, 2nd edn (Oxford, Clarendon Press, 1986) 43. This was contrasted with seisin in deed, which in most cases could only be acquired by entering on the land. There is an exception where seisin in deed was cast upon the Crown in circumstances where seisin in law would be cast upon a subject: see below text to n 156. 155   Sadlers’ Case (1588) 4 Co R 54b, 76 ER 1012 (Ch). 156   Sadlers’ Case (1588) 4 Co R 54b, 58a; 76 ER 1012, 1019 (Ch). See also Willion v Berkley (1561) 1 Plow 223, 229-230; 75 ER 339, 349 (CP); Dowtie’s Case (1584) 3 Co R 9b, 10b; 76 ER 643, 645 (Ex); Reynel’s Case (1612) 9 Co R 95a, 96a; 77 ER 871, 872 (Ch). The weight of authority supports the proposition that where land was vacant when the Crown’s title accrued, the Crown was in actual possession (in law and in deed) without office or seizure (possession being cast on the Crown by law); but if the land was not vacant when the Crown’s title accrued, not only was an office necessary to complete the Crown’s title, but when the terms of the office found that the facts supported the Crown’s claim to possession, the Crown had to enter or seize by its officer before acquiring possession in deed. Nevertheless, there is some authority for the proposition that an inquest of office was instituted for the purpose of determining whether the Crown’s tenant died without leaving heirs even when the land was vacant when the Crown’s title accrued and that on the verdict of the jury in the Crown’s favour, the Crown became seised of the land without the necessity of entry: Chitty (n 4) 251 quoting Staunford: ‘An office that entitleth the King to possession is sufficient by itself, without any seizure or entry of the escheator, to make a possession in deed in the King, if it be so that the possession were vacant when the office was found’. See also 3 Bl Comm 260.



The Record Requirement 259

upon the Crown. The essence of the feudal tenurial system in which the exception was conceived is that the King originally had title to all land and that all privately held titles were originally derived from a grant by the King, whether actual or fictional.157 Under the post-Mabo doctrine of tenure ad veritatem (with radical title as its postulate), however, the two-fold fiction of original Crown ownership and original Crown grant no longer applies.158 The fiction of original Crown grant has been rendered otiose and the fiction of original Crown ownership has been replaced with the ‘fiction of original Crown ownership of land which has actually been granted by the Crown’.159 That is, the fiction of original Crown ownership no longer applies before a tenure has been created by Crown grant.160 Post-Mabo, therefore, possession is only cast upon the Crown in limited circumstances: where there has in fact been a grant of an interest in land, and then only for the purpose of the grant.161 In such circumstances, the fiction of original Crown ownership is brought into play so that the Crown can pass derivative title to the grantee. Importantly, however, the effect of the doctrine of tenure in this context is not to give the Crown title to the land. The fictional explanation merely justifies the feudal concept of paramount lordship for the duration of the grant.162 The Crown’s radical title has thus increased the circumstances where an office of entitlement would be necessary: where the Crown is required to prove its title.163 It is important to note that, pre-Mabo, the reason the law cast the possession on the Crown where land was vacant when the Crown’s title accrued was the common law rule against an abeyance of seisin.164 Seisin denotes possession for a freehold estate in land as opposed to mere possession of land. Thus, the reason why an abeyance of seisin was generally not tolerated was two-fold. First, someone had to perform the feudal services in respect of the land, and secondly, someone had to answer actions brought in respect of the land.165 It will be seen, however, that, post-Mabo, the rule against an abeyance of seisin no longer applies to land which is not the subject of a Crown grant or which, being the subject of a Crown grant, is land in respect of which the Crown had mere radical title to (as opposed to beneficial ownership of) before the grant.166

  See ch 1 text to n 101ff. See also Lester (n 81) 274.   See ch 3 text to n 19ff. 159   See ch 3 text to n 29. 160   Indeed, even where land has been brought within the doctrine of tenure ad veritatem and the land is subject to native title, the fiction does not apply to confer absolute beneficial ownership on the Crown to extinguish any native title: see ch 4 text to n 233ff. 161   See generally ch 4. 162   The Crown’s fictional possession is, however, no longer as fictional as it was under the feudal doctrine of tenure. Since this fictional possession only applies where there has been an actual Crown grant, the doctrine of tenure ad veritatem has some factual justification. 163   That is, because the radical title which the Crown acquired to land upon assumption of sovereignty does not automatically confer beneficial title, in order to have beneficial title the Crown must prove it as a matter of fact. cf Yarmirr (n 136) [212] where McHugh J expressed the proposition that if the Crown claims title to land, its radical title requires it to prove its title in the following terms: ‘Radical title in a native title setting serves the same purpose as the fiction of the grant of an estate does in the case of the fee simple in England. If the Crown claims title to land, that fiction requires the Crown to prove its title. Historically it did so by an inquest of office or an information of intrusion’. 164   See above n 152; Chitty (n 4) 249; McNeil (n 4) 96. 165   Geary v Bearcroft (1666) Cart 57, 60, 61, 65; 124 ER 822, 823, 824, 827 (CP); Taylor d Atkyns v Horde (1757) 1 Burr 60, 107–08; 97 ER 190, 216 (KB). 166   See below text to n 169. 157 158

260  Crown Acquisition of a Plenary Title When land in respect of which the Crown has a plenary title has been granted to a subject, although the Crown loses its title for the duration of the grant (while acquiring its paramount lordship), it re-acquires its title when the grant determines. When land in respect of which the Crown has radical title has been granted to a subject, although the Crown loses its radical title for the duration of the grant (which is replaced with a fictional paramount lordship), it has a right to re-acquire or regrant title when the grant determines. This right to re-acquire title does not, however, mean that the Crown is seised in demesne. Because the fiction of original Crown ownership only applies for the duration of the grant, once the grant determines, the nature of the Crown’s title returns to its essential character before the fiction of original Crown ownership applied; the Crown’s right which returns to it does not lose its essential character; it has always been dominium minus plenum or nuda proprietas. Indeed, it was seen in chapter four that when the Crown grants a leasehold estate in respect of unalienated land (that is, before the Crown has acquired an actual title to the land by converting its radical title to beneficial ownership), the law vests a reversionary interest in the Crown in order to support and enforce the relationship of landlord and tenant. Although such reversionary interest is supplied by application of the fiction of original Crown ownership in respect of the particular Crown grant, it does not confer beneficial title to the land. Furthermore, since the fiction of original Crown ownership only applies for the duration of the grant to ensure the Crown of its rights as Paramount Lord, once the grant terminates, the fiction is spent. Thus, the Crown’s fictional reversionary interest does not automatically vest in possession. Rather, once the grant determines, the nature of the Crown’s title reassumes the character of ‘radical title’.167 According to the Mabo Court’s restatement of the common law, therefore, when the Crown grants an interest in unalienated land,168 under the doctrines of escheat, forfeiture and reversion, the Crown simply takes back what it had before the intervening, but now ceased, rights of the tenant: its radical title.169 For the Crown to re-acquire beneficial   See ch 4 text to nn 101ff, 129ff, 186ff.   Whether ‘original’ unalienated land or ‘currently’ unalienated land: see definitions in ch 4 text in para following n 5. 169   cf the doctrine of bona vacantia which applied to chattels. Pursuant to this doctrine, absolute ownership was possible. Where the owner of chattels died intestate and without next of kin, the Crown did not take back what had always been its own, but succeeded to the rights vested in the deceased. Indeed, legislative abolition of the doctrine of escheat has marked an important change in the nature of landholding in Australia. In the absence of a will or next of kin, land no longer ‘escheats’ to the Crown but passes to the Crown as ‘bona vacantia’. Not only does this indicate that the Crown does not automatically acquire beneficial title as the result of escheat, but perhaps more importantly, the basis of the feudal doctrine of tenure – that land is not the subject of absolute ownership but is merely held of the Crown – has also been effectively abolished by the legislature. Note, however, that the view that the right to escheat is a jus regale of the same nature as bona vacantia had been adopted by Lord Selborne in Attorney-General of Ontario v Mercer (1883) 8 App Cas 767 (PC). In that case, Lord Selborne expressed the view that ‘the right of the lord paramount to future escheats’ cannot ordinarily be described as ‘land belonging to him at a time when the fee simple is still in the freeholder,’ and certainly cannot be described as ‘a present proprietary right to the land itself’: ibid 777. ‘This view is plainly inconsistent with the theory of the Crown having the absolute ownership of the land during the existence of a subject’s estate in fee simple’: JE Hogg, ‘Effects of Tenure on Real Property Law’ (1909) 25 Law Quarterly Review 178, 183. Land now passes to the Crown by reason of modern statutory provision and not by reason of the doctrine of tenure. This assimilation of the rules ‘governing descent of realty upon death of an individual without heirs or devisees to the rules governing descent of chattels upon death of an individual intestate and without next of kin’ demonstrates that property law and the concept of property in Australia are no longer based upon feudal principles and reinforces the view that, consequently, there is nothing to prevent absolute ownership of land by individuals: P Butt, Land Law, 3rd edn (Sydney, LBC Information Services, 1996) 72–73; see also P Butt, Land Law, 5th edn (Sydney, Lawbook Co, 2006) 77. 167 168



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title, there must have been an appropriate exercise of sovereign power to convert the Crown’s radical title to beneficial title before the land was granted. In other words, only in the case of a grant of the Crown’s demesne land does the Crown re-acquire a full bene­ficial title. Thus, although the common law has always abhorred an abeyance of seisin, a gap in seisin of freehold ownership is not applicable post-Mabo unless the Crown’s demesne land has been brought within the doctrine of tenure ad veritatem by grant of an interest in land (other than a leasehold interest). Accordingly, where there is no grant, or where the Crown has radical title before a grant, the rationale for the rule against an abeyance of seisin is simply not relevant: the concept of an abeyance of the freehold is incongruous. The important point is that, even pre-Mabo, in the absence of other record of the Crown’s title, an office was necessary to give the Crown possession whenever lands were in the possession of a subject when the Crown’s title accrued. Although pre-Mabo acquisition of title by occupancy (or other valid modes of original acquisition) was restricted by the fiction of original Crown grant, post-Mabo, where a subject’s possession of land fulfils the requirements of occupancy before the Crown exercises its right to acquire the land, the terms of an office would necessarily find that the facts do not support the Crown’s claim to possession of the property. The Crown would not, therefore, be entitled to the property. Since inquests of office were the common law means by which the Crown either acquired possession or established its right thereto, where the Crown claimed to be in possession, whether by record or otherwise, an office was not necessary for the Crown to bring an action to recover the land from a subject who was considered an intruder.170 In such circumstances another prerogative process, the information of intrusion, was available. It will be seen, however, that although an information of intrusion still presumed the Crown’s ownership of land, the presumption could be rebutted. B  Information of Intrusion An information of intrusion was a proceeding commenced in the Court of Exchequer by the Attorney-General. It was in the nature of an action of trespass quare clausum fregit and was usually brought against a subject for trespass committed on the lands of the King ‘as by entering thereon without title, holding over after a [Crown] lease is determined, taking the profits, cutting down timber, and the like’.171 At common law, a defendant on an information of intrusion could not rely on his possession.172 The issue of title could, nevertheless, be raised by pleading specially.173 However, if the defendant pleaded not guilty, or non intrusit generally, nothing but the mere fact of an intrusion having been committed was put in issue and, if in possession, the defendant would be immediately evicted. This was because if no title appeared upon record for the defendant, the King’s title was presumed for it appeared upon the information.174 But in such a case it is to be emphasised that the Crown’s title was not presumed by reason of the 170   That is, there is no such thing as trespass on the Crown’s demesne lands. In situations where trespass would ordinarily lie for a subject, the prerogative remedy, the information of intrusion, was available to the Crown. 171   Chitty (n 4) 332. See also 3 Bl Comm 261. 172   Chitty (n 4) 333. See also Leigh v Hudson (1565) 2 Dy 238b, 73 ER 527 (Ex); R v Steel (n 13) 66. 173   Chitty (n 4) 333. 174   ibid. The Crown became seised for its title appeared of record, being founded on the information itself.

262  Crown Acquisition of a Plenary Title doctrine of tenure but because the Crown complied with the requirement that there be a record.175 This common law advantage accorded to the Crown on an information of intrusion was, however, reduced by statute in 1623.176 The essence of this statutory innovation was that where the Crown had been out of possession for 20 years or had not taken profits from the land for 20 years before an information of intrusion was brought to recover possession, the defendant could plead the general issue of the Crown’s title without being bound to plead and prove his own title and the defendant should ‘retain the possession . . . until the title be tried, found or adjudged for the King’.177 It has been authoritatively established that this provision did not mean that before an information of intrusion would lie, the Crown’s title had to be proved by an office found. The provision reversed the burden of proof (where the Crown had relevantly been out of possession) and obliged the Crown, in the first instance, to prove its own title.178 Nevertheless, in A-G v Brown the defendant argued that an office of entitlement was necessary before an information of intrusion would lie. Although this argument was wrong in law in the statutory context, the competition between the proprietary rights of the Crown and the defendant were not disposed of on this basis. It was held that the statutory provision did not apply to New South Wales. The case, therefore, proceeded in terms of legal principle unaffected by statute. Apart from statute, the issue of title could only be raised by pleading specially: the defendant had to show title in himself.179 In general, it was sufficient for the defendant to show ‘a mere legal title to possession only’.180 Since an information of intrusion ‘supposeth that the party intruded upon the King’s possession’,181 if the Crown did not have possession, there could be no intrusion. Accordingly, the defendant could rebut the presumption of Crown possession by showing that he had either leasehold possession or seisin. It appears that proof of the conveyance of a valid lease to the defendant was required to show leasehold possession; but if the defendant could prove that a third party had been seised for a freehold estate which the defendant now claimed, rightly or wrongly, as possessor, the defendant would have disproved the possession of the Crown alleged in the information of intrusion:182 the defendant would not have to prove a title in himself.183 It also appears that where the Crown had title to land and another was in possession, an information of intrusion would not lie before an office entitled the Crown to possession.184 Indeed, McNeil has observed:   Lester (n 81) 1046.   21 Jac 1 c 14. 177   21 Jac 1 c 14, s 1. See also Chitty (n 4) 332–33. 178   The issue of the Crown’s title could, however, be tried at the same time as the information: Doe d Watt v Morris (1835) 2 Bing (NC) 189, 132 ER 75 (CP); Attorney-General v Parsons (1836) 2 M & W 23, 25–26; 150 ER 652, 653 (Ex); Attorney-General v Corp of London (1850) 2 Mac & G 247, 258–59; 42 ER 95, 100 (Ch); Mudgway v Davy (1886) 4 NZLR 192 (NZCA) 206; Emmerson v Maddision [1906] AC 569 (PC) 576–77, 579–80; Hamilton v R (1917) 54 SCR 331 (SCC) 334–37. 179   Attorney-General v Hallett (1847) 1 Ex 211 (Ex) 219. 180   Chitty (n 4) 334. McNeil has argued that it is doubtful whether ‘a mere legal title to possession only’ meant that the defendant ‘had to prove a right to possession good against all the world. More likely, he could have discharged the burden by proving a right which was better than that alleged by the Crown’: (n 4) 99–100. 181   Friend v Duke of Richmond (1667) Hard 460; 145 ER 547 (Ex). 182   McNeil (n 4) 100–02. ‘A freehold could be acquired by unlawful means, such as disseisin’: ibid 100. 183   R v Watson (1828) 1 NBR 188 (NBSC); R v Cooper (1886) 7 LR (NSW) 15 (NSWSC); Attorney-General v Boyle (1893) 14 NSWLR 424 (NSWSC). For the legal position with respect to a lease for years, as opposed to a freehold estate, see Attorney-General v Meller (1667) Hard 451, 452; 145 ER 542, 543 (Ex) (Hale CB) citing Leigh v Hudson (n 172). 184   Finch’s Case (1591) 2 Leon 134, 144–46; 74 ER 420, 429–30 (Ex). 175 176



The Record Requirement 263 The advantage the Crown had on an information of intrusion was thus not as great as might appear at first glance. More importantly, the advantage was procedural rather than substantive: it merely cast the initial burden of proof on to the defendant. . . . although it has been held that the title of the Crown could be tried on an information of intrusion without the necessity of first establishing the title by office, the information would have been dismissed if the defend­ ant succeeded in rebutting the allegation of Crown possession. This would have been true whether the Crown had title or not. It is therefore not strictly correct to say that the information tried the title of the Crown; rather, the issue to be determined was whether the Crown was in possession at the time the information was laid. Though the Crown often would have had possession if it had title, this would not be so before office where an office was necessary for the Crown to have possession.185

The information of intrusion did not affect the substantive rights of the parties: it merely cast the burden (statute apart) on the defendant of proving that he was in possession for a freehold or leasehold estate, thus rebutting the presumption of Crown possession upon which the proceeding was based. The availability of this prerogative action did not, therefore, detract from the rule that where a subject is in possession when the Crown’s title accrues, the Crown’s title should appear of record; the party is entitled to demand an inquest of office to entitle the Crown. Thus, the defendant’s argument in A-G v Brown that an office of entitlement was necessary before an information of intrusion would lie. Although the Attorney-General began to reply to this submission,186 he was interrupted by the Bench and told that it was unnecessary to argue the point as to the Crown being entitled only on an office found.187 Chief Justice Stephen concluded: To show further, after what has been adduced, that a finding by ‘Office’ was unnecessary, to entitle the Queen to lands in this colony, or to maintain an information of intrusion in respect of them, would be a waste of time. Where the Queen is entitled, she is supposed to be in possession. The Crown cannot be disseissed: nor can there be any occupant, as against the Crown, (for any other purposes then those mentioned in the 21 Jac. I, c. 14) of any possessions of the Crown. The reason assigned is, that no subject can take from the Crown except by record; and therefore a mere act in pais cannot avail a defendant. And, because the Queen cannot be supposed to be out of possession, she cannot have ejectment; or other remedy, which is founded on or supposes an eviction. . . . It is not universally true, that the Crown can only take by matter of record, even from a subject. . . . As, for instance, in the case of lands ‘of an alien in this realm ratione guerre.’ And the reason given is remarkable:- ‘because the King’s title is notorious enough, although it appear not of record’. But all the instances where the King is said only [to] take lands by record, are where he takes from a subject. . . . The idea that he cannot acquire lands in a newly settled country, by discovery, and the settlement of his subjects therein (facts which must be always notorious, and speedily a matter of history), but must resort to the form of an ‘office’ to give him title, appears to us scarcely to admit of serious refutation.188

In essence, Stephen CJ considered that the defendant’s argument was inconceivable. And he was no doubt correct in reaching this conclusion on the facts of the case and the state of the law as it existed in 1847. It must be remembered that the facts of the case were that the Crown had made a grant of certain previously unalienated land in New South Wales to one Dumaresq and that this grant contained the usual words of limitation and a 185   McNeil (n 4) 101–02. On leasehold possession: ibid 101 text to fn 103; on seisin for a freehold estate: ibid 100 text to fn 99, 102 text to fn 104. 186   Lester (n 81) 278–79 referring to the report of the case in the Sydney Morning Herald. 187   ibid 279. 188   A-G v Brown (n 5) 320.

264  Crown Acquisition of a Plenary Title reservation of all mines, gold, silver and coal in favour of the Crown. Brown, the defend­ ant, took a lease from Dumaresq and, contrary to the reservations in the original grant, commenced to mine for coal. It was on these facts that the Attorney-General brought an information of intrusion. However, that is not to say that the defendant’s argument was inconceivable. PostMabo it is incorrect to claim, as Stephen CJ did, that the Crown does not have to prove its title to the ‘waste lands’ of Australia; it is now clear that the facts of the settlement of Australia were not as ‘notorious and speedily a matter of history’ in 1847 as the Chief Justice thought.189 Indeed, the Mabo High Court overruled previous decisions, including A-G v Brown,190 that had held that as a consequence of its acquisition of sovereignty the Crown acquired the absolute beneficial ownership of all land in Australia and that no rights or interests in any land could thereafter be possessed by any other person unless granted by the Crown. This development was crucial for it provided the basis for the High Court’s redefinition of the English doctrine of tenure. It necessarily follows, that the defendant’s argument in A-G v Brown was right to the extent that it insisted that the Crown prove its title to the unalienated lands in Australia (at least where occupied by a subject). These conclusions can be expressed as a general proposition of law: in an inhabited settled colony, the Crown’s beneficial title to any particular parcel of land is a question of fact to be proved. The Crown’s claim to having a present proprietary interest in land is rebuttable; unless it can be made to appear how and why the land vests in the Crown, a positive declaration of the Crown’s plenary title is to be refused. No assumptions are to be made about the Crown’s title; it is no longer a matter of judicial notice.191 Where a subject claims to be owner because of his actual possession of land before the Crown’s beneficial title to the land accrues, the subject is entitled to demand that the Crown prove its title. And where a subject has acquired an original common law title to land before the Crown’s title to the land accrues, an office of entitlement would not be in the Crown’s favour. Furthermore, the presumption of Crown possession upon which an information of intrusion depended would be rebutted. Although inquests of office are now largely obsolete due to statute192 and informations of intrusion have been replaced with other proceedings,193 the point is that the Crown is not to be presumed to be the owner of land when a subject is in possession. How and why the Crown has title must be established; the Crown can be put to its proof; the Crown must prove its present title like anyone else.194 While this analysis reflects the status of the Crown’s title to land at common law, it will be seen that it is confirmed by the statutory position: the Crown did 189   Stephen CJ’s reliance on an exception to the rule that the Crown can only take from a subject and grant to a subject by record, namely, seizure of the property of an alien enemy within the realm ratione querre, is also irrelevant in this context: subjects of the Crown are, by definition, not aliens. 190   Mabo (n 2) 58 (Brennan J). 191   See similar conclusion by McNeil (n 4) 85 fn 29 and text and by Lester (n 81) 1071. Note, however, that both of these authors confined their conclusions to land subject to Aboriginal title. 192   McNeil (n 4) 95 fn 73. The abolition of escheat has taken away the chief occasion for the use of offices. The abolition of forfeiture on conviction of felony had previously diminished the number of inquests of office and s 25 of the Queen’s Remembrancer Act 1859 (22 & 23 Vic c 21) also made inquests of office less usual. This section provided that where the right of re-entry in any hereditament shall have accrued to the Crown it may be exercised without office found. 193   Pursuant to the Crown Proceedings Act 1947 (UK) (10 & 11 Geo 6 c 44): Halsbury’s Laws (4th edn, 1973–87) vol 11, para 1407. 194   McNeil (n 4) 218.



Crown Land Statutes 265

not acquire beneficial ownership of land as a result of the enactment of Crown lands legislation.

III  CROWN LAND STATUTES: STATUTORY DEFINITION OF ‘CROWN LAND’195

A Post-Mabo Relationship between ‘Crown Land’ and Radical Title The term ‘Crown land’ was no doubt defined in all Acts passed by the colonial governments dealing with unalienated land196 in the pre-Mabo belief, current since A-G v Brown,197 that the absolute ownership of all land in Australia was vested in the Crown until it was alienated by Crown grant.198 Nevertheless, it was seen in chapter four that the majority of the Wik High Court concluded that the denotation of the term ‘Crown Land’ in the 1910 and 1962 Queensland Land Acts supports the proposition that unalien­ ated land (whether or not subject to native title) is land in respect of which the Crown has a title equivalent to radical title only and not land in respect of which it also has beneficial ownership.199 i  Residuary Rights to Crown Land at the Expiration of a Pastoral Lease: Wik Revisited The majority in Wik rejected the reversion expectant argument: they denied that the Crown acquired a beneficial reversionary interest upon the grant of pastoral leases over Crown land with the result that the underlying title of the Crown continued to be mere radical title.200 The important point is that three members of the majority were of the view that either the fiction of original Crown ownership did not apply in the context of the statutory grants (Gummow J and Kirby J) or, if it did, it conferred no more than a

195  See also U Secher, ‘Implications of the Crown’s Radical Title for Statutory Regimes Regulating the Alienation of Land: “Crown Land” v “Property of the Crown” Post-Mabo’ (2008) 34 Monash University Law Review 9. 196   The term ‘Crown land’ was used as an alternative to the term ‘waste lands’ and was variously defined in the legislation. See, eg, Crown Lands Alienation Act 1868 (Qld), s 2; Crown Lands Alienation Act 1876 (Qld), s 1; Crown Lands Act 1884 (Qld), s 4 and Land Act 1897 (Qld), s 4; Land Act 1910 (Qld), s4; Land Act 1962 (Qld), s 5. ‘Unallocated State land’ is the terminology adopted in the current Queensland legislation: the Land Act 1994 (Qld), Sch 6. The following are the principal statutes regulating Crown Land in Australia: Cth: Lands Acquisition Act 1989; ACT: Planning and Development Act 2007, Land Titles Act 1925; NT: Crown Lands Act 1992; NSW: Crown Lands Act 1989 No 6, Western Lands Act 1901 No 70; Qld: Land Act 1994; SA: Crown Land Management Act 2009, Pastoral Land Management and Conservation Act 1989; Tas: Crown Lands Act 1976, Crown Lands (Shack Sites) Act 1997; Vic: Transfer of Land Act 1958; WA: Land Administration Act 1997. In each jurisdiction, there also exists a range of additional regulatory statutes dealing with specific aspects of Crown land. See, eg, NSW: Rural Lands Protection Act 1998; Qld: Mineral Resources Act 1989. 197   See also Commonwealth v New South Wales (1923) 33 CLR 1 (HCA) 19 (Knox CJ and Starke J). 198   See similar words used in Mabo (n 2) 66 (Brennan J). Note also the comment by Dawson J in Mabo (n 2) 159 that ‘from the start [the Crown acted] upon the assumption (which was also the assumption lying behind the relevant legislation) that there was no such thing as native title and that the Crown was exclusively entitled to all lands which had not been alienated by it’. 199   Unalienated land in this context includes previously alienated land which has become Crown land again. See below text to n 200ff. cf Mabo (n 2) 66 (Brennan J). 200  The Wik High Court’s treatment of the ‘reversion expectant’ argument at common law is discussed in ch 4 text to n 123ff.

266  Crown Acquisition of a Plenary Title nominal proprietary interest sufficient to support the interest granted (Toohey J).201 Although it might appear that, because the decision in Wik concerned land subject to native title, the fiction of original Crown ownership still applies to land which is not subject to native title, this is not the case. This is because ‘fictions in law are only acknowledged “for some special purpose”’.202 And since the effect of the fiction of original Crown ownership of all land was to secure the ‘paramount lordship or radical title of the Crown which [was] necessary for the operation of [the doctrine of tenure]’,203 the fiction should be given no wider application than is necessary to achieve this purpose.204 It has been seen that the Mabo High Court made it clear that, at common law, the doctrine of tenure ad veritatem applies ‘to every Crown grant of an interest in land,’ but not ‘to rights and interests which do not owe their existence to a Crown grant’.205 That is, the fiction of original Crown grant is otiose and the fiction of original Crown ownership has been replaced with the ‘fiction of original Crown ownership of land which has actually been granted by the Crown’.206 The Wik Court made it clear that the Crown’s statutory power to grant interests in land is not only independent of the Crown’s ownership of the land, but the legislation does not confer on the Crown the estate necessary to support the grant.207 Crucially, therefore, the fiction of original Crown ownership of all land is no longer relevant in the context of the statutory regime regulating the alienation of land in Australia. Thus, unless the Crown’s possession and title are original,208 for the Crown to be in possession in the first place, it must have a recorded title. The Crown has possession because it has title, not vice versa.209 Until the Crown has exercised its sovereign power to appropriate land to itself, the Crown’s initial title to land, its radical title, is a bare legal title sufficient to support its power to acquire and confer title. In Wik, Toohey, Gaudron and Kirby JJ all expressly equated the statutory concept of ‘Crown land’ with this conception of radical title: a nominal, rather than full beneficial, title.210 Gummow J, however, concluded that the statutory definition of the term ‘Crown Land’ was ‘apt to include land in respect of which the Crown held radical title’ (emphasis added).211 Although Gummow J’s conclusion might suggest that the statutory definition 201   At least two members of the majority (Toohey J and Gummow J) were of the view that a similar result would be achieved by reference to the common law: see ch 4 text to nn 126 and 146 respectively. Kirby J is also, arguably, of this view: see ch 4 text to n 164. cf Eckford v Stanbroke Pastoral Co Pty Ltd [2012] QSC 48, [2012] 2 Qd R 324 [21] but note Dalton J’s observations at [35]. 202   Mabo (n 2) 212 (Toohey J) quoting Needler v Bishop of Winchester (1614) Hob 220, 222; 80 ER 367, 369; Mostyn v Fabrigas (1774) 1 Cowp 161, 177; 98 ER 1021, 1030 (KB); Anon, Considerations on the Law of Forfeitures for High Treason, 4th edn (London, J Williams, 1775) 64–65. 203   Mabo (n 2) 212 (Toohey J). See also ch 1 text to n 120ff; ch 3 text to n 22ff; ch 4 text to n 78ff; McNeil (n 4) 82–84. ‘[T]he right of the people of England to their property does not depend upon, nor was in fact derived from, any royal grant. The reception of the feudal policy, in this nation, exactly answers the definition of a fiction; which is – some supposition in law, for a good reason, against the real truth of a fact in a matter possible to have been actually performed, according to that supposition’: McNeil (n 4) 84 fn 26 quoting Anon, Considerations on the Law of Forfeitures for High Treason (n 202) 64–65. See also A-G v Brown (n 5) 318. cf B Edgeworth, ‘Tenure, Allodialism and Indigenous Rights at Common Law: English, United States and Australian Land Law Compared after Mabo v Queensland’ (1994) 23 Anglo-American Law Review 397, 431. 204   Mabo (n 2) 212 (Toohey J). 205   ibid 48–49 (Brennan J). 206   Ch 3 text to n 29. 207   Ch 4 text to nn 123ff, 214ff. The Crown’s power to grant land is an incident of radical title, rather than an incident of beneficial title. 208   As in the case of land acquired by occupancy: see above text to n 130, but see text to nn 42–76. 209   McNeil (n 4) 106. 210   Wik (n 6) 128–29 (Toohey), 156 (Gaudron J), 244–45 (Kirby J). 211   Wik (n 6) 188.



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of ‘Crown land’ means something more than land in respect of which the Crown has radical title, his decision, as a member of the principal majority judgment in Ward,212 denies such a result. In Ward, the majority of a reconstituted High Court213 referred to the effect, on the Crown’s title, of the resumption of a pastoral lease: Resumption brought the relevant pastoral lease to an end. If there was no dedication of the land, and only a resumption, both before and after that resumption the land was Crown land. . . . Resumption did not give the Crown any larger title to the land than the radical title acquired at sovereignty.214

While it is clear that radical title gives the Crown the opportunity to become the owner of land, to acquire a plenary title by an appropriate exercise of sovereign power, it will be seen in the next section that the statutory resumption and vesting of Crown land which has previously been alienated – like residuary rights to Crown land which has previously been alienated – does not elevate radical title to beneficial ownership. ii  Resumption and Vesting of Crown Land which has Previously been Alienated: Ward In Ward, the Court considered three instances of resumption of land from pastoral leases:215 first, under section 109 of the Land Act 1933 (WA) (Land Act); secondly, under section 10 of the Public Works Act 1902 (WA) (Public Works Act) and section 62 of the Rights in Water Irrigation Act 1914 (WA) (Rights in Water Act); and, thirdly, pursuant to a bargain-and-sale transaction.216 Most of the land under consideration was resumed under section 109 of the Land Act. Pursuant to this section, the Governor was empowered to resume, enter upon, and dispose of the whole or any part of the Crown land in a pastoral lease,217 for agricultural or horticultural settlement, mining or for any other purpose thought fit in the public interest.218 Two acquisitions were expressed to be pursuant to the Public Works Act and the Rights in Water Act. Pursuant to section 62 of the Rights in Water Act, upon publication of notices of land being acquired by compulsory process for the purpose of that Act, the land, by force of the publication, was vested in the Crown.219 Pursuant to section 18 of the Public Works Act, upon publication of notice that land has been set apart, taken or resumed under that Act, the land, by force of that 212   Above n 67. For comment on Ward generally see articles in R Bartlett (ed), ‘Special Edition: Native Title After Ward’ (2002) 21 Australian Mining & Petroleum Law Journal 205–310. 213   Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. 214   Ward (n 67) [208] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). Subsequently, in the context of an argument about whether certain vacant Crown lands and reserves in Crown lands were vested in the Minister by the operation of the Rights in Water and Irrigation Act 1914 (WA), the majority observed that ‘[i]t is incongruous to speak of unalienated Crown land being “held” by the Crown’: ibid [275]. 215   These were all different means of acquiring land for the Ord River Irrigation Project and other purposes: see Ward v Western Australia (1998) 159 ALR 483 (FCA) 584–85 (Lee J). 216   The Argyle Downs pastoral lease and freehold land were acquired by the State of Western Australia in a bargain-and-sale transaction rather than pursuant to the powers of resumption contained in the Land Act, the Public Works Act or the Rights in Water and Irrigation Act: see Ward v Western Australia (n 215) 586. 217   It will be seen that pastoral lease land remained Crown land for the purposes of the Land Act: see below n 300 and text. 218   Land resumed from a pastoral lease would be Crown land available to be used for the purpose specified as the purpose for resumption or reserved under the Land Act or otherwise held as vacant Crown land. Pursuant to s 3 of the Rights in Water and Irrigation Act all lands acquired for, or dedicated to, the purposes of that Act were vested in the Minister until such lands, irrigation works and constructions were vested in a board: Ward v Western Australia (n 215) 585. 219   ibid 587.

268  Crown Acquisition of a Plenary Title Act and as the Governor may direct, was ‘vested in the Crown for an estate in fee simple in possession or such lesser estate for the public work expressed in such notice’. In both cases, the legislation provided that the vesting of the land freed and discharged the land from the interests of third parties. The High Court dealt with the effect of the relevant resumptions at two levels: one general, one specific. Considering the general effect upon native title of the assertion or exercise by the Crown of rights or powers, the majority observed: What exactly is the right or power which is said to be asserted or exercised? That is a question which can be answered only by examining the relevant statutory basis for the assertion or exercise of a right or power in relation to the land. Just as a change in sovereignty at settlement worked no extinguishment of native title, the bare fact that there is statutory authority for the executive to deal with the land in a way which would, on the occurrence of that dealing, create rights inconsistent with the continued existence of native title will not suffice to extinguish native title. . . . Yet there may be cases where the executive, pursuant to statutory authority, takes full title or plenum dominium to land and it is clear that this would extinguish native title.220

The majority then dealt with the specific effect on native title of the relevant legislative bases for the resumption and vesting of land. That is, did the statutory resumption or vesting of land which was, prior to the grant of the resumed interest, Crown land, confer beneficial title upon the Crown? The majority of the High Court, the Full Federal Court and the trial judge (Lee J) in Ward all agreed that resumptions of land do not, of themselves, expand the Crown’s radical title to the land into full beneficial ownership. With respect to the resumption of the pastoral lease pursuant to section 109 of the Land Act, it is clear from the quote extracted above, that ‘[r]esumption did not give the Crown any larger title to the land than the radical title acquired at sovereignty’.221 Furthermore, in the context of section 3 of the Rights in Water Act, the High Court’s analysis was consistent with both the majority of the Full Federal Court and Lee J: the statutory vesting of resumed land did not, of itself, confer a beneficial interest.222 Although there is authority for the proposition that statutory provisions which vest resumed land in the Crown for an estate in fee simple do convert the Crown’s radical title into beneficial ownership,223 it is important to note that the relevant vesting Act also provided that the vesting ‘freed and discharged’ the land from the interests of third parties224 and thus effectively constituted a law which extinguished any other title to the land, including native title.225 Furthermore, in the event that the Crown acquires a bene­   Ward (n 67) [151] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).   ibid [208] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). See also above n 214; Western Australia v Ward [2000] FCA 191, (2000) 99 FCR 316 (FCAFC) [419] (Beaumont and von Doussa JJ); Ward v Western Australia (n 215) 586 (Lee J). Although a compulsory acquisition does extinguish native title for the purposes of the Native Title Act 1993 (Cth), this does not necessarily mean that the Crown acquires full beneficial ownership of the land: see discussion in ch 4 text to n 293ff. 222   Ward (n 67) [204], [205] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); WardFC (n 221) [419], [420] (Beaumont and von Doussa JJ); Ward v Western Australia (n 215) 588 (Lee J). 223   WardFC (n 221) [432], [433] (Beaumont and von Doussa JJ); Ward (n 67) [204] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 224   Public Works Act, s 18. 225   The statutory vesting provisions in both Fejo (n 6) and Mabo v Queensland (No 1) (1988) 166 CLR 186 (HCA) employed similar ‘freed and discharged’ terminology. Accordingly, it is suggested that the Public Works Act, like the Coast Island Declaration Act 1985 (Qld) and the Lands Acquisition Act 1906 (Cth) in Mabo (No 1) and Fejo respectively, is effective to extinguish native title merely because it is an example of the first category 220 221



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ficial title to unalienated land as a result of the statutory vesting of an estate in fee simple, the argument that radical title is merely a bare legal title rather than a full proprietary right is intact: beneficial title vests in the Crown by force of the statute rather than the common law. Although the bargain and sale transaction was not an issue before the High Court, the majority emphasised ‘the protean qualities of the word “vest” and the proposition that what is “vested” will often be no more than is necessary for the public body to discharge its function’.226 In any event, it is clear from Ward that at least some statutory provisions which vest resumed land in the Crown do not elevate the Crown’s radical title to full beneficial ownership. The important point is that the majority of both the Wik and Ward High Courts have made it clear that the term ‘radical title’ is synonymous with ‘Crown land’. Although the Ward High Court’s analysis of the statutory resumption and vesting of Crown land supports the inchoate nature of the Crown’s radical title, it is also consistent with the more generous interpretation of radical title: as conferring full property rights except to the extent of native title. The Wik decision is, however, more unequivocal: not only does it make it clear that radical title, or Crown land, is not of itself and automatically tantamount to beneficial ownership of land, but it also emphasises that, for the purpose of Crown lands legislation (and contrary to the pre-Mabo view), the exercise by the Crown of the right to grant tenure in land is not dependent upon the Crown’s beneficial ownership of the land. Unless the Crown has more than mere radical title to the land, therefore, the Crown does not have, nor need, ownership of land when an interest is created. The Crown’s power to acquire and confer title is an aspect of its sovereignty rather than beneficial ownership. Accordingly, the fiction that the Crown originally owned all land is not required to provide factual justification for the Crown’s paramount lordship over tenures created by Crown grant: there is no longer any legal reason for deeming the Crown to be the owner of all land in Australia. of laws, identified by Brennan CJ in Wik, which may extinguish native title: namely, laws which simply extinguish native title. By simply extinguishing any other title to the land, including native title, the law does not confer beneficial title on the Crown. Moreover, according to Lee J’s analysis in Ward v Western Australia (n 215) 588, 586, 569, statutory vesting of resumed land for an estate in fee simple does not convert the Crown’s radical title into a full beneficial interest. Lee J appears to have attributed to the Crown’s title a content which lies somewhere between mere radical title and beneficial ownership. Although the land remains Crown land and is, therefore, land in respect of which the Crown has a radical title, this radical title is qualified by the purpose of the vesting. Accordingly, the Crown’s power of alienation in respect of such land is limited to a particular purpose. Where land has ceased to be Crown land within the definition of mere radical title, it ceases to be available for classification and disposal by way of purchase or lease tenure until it again becomes Crown land by revesting the land in the Crown as Crown land per se by rescission of the dedication. Interestingly, Lee J’s analysis is also consistent with older, pre-Mabo, authorities, notwithstanding the pre-Mabo understanding of the meaning of Crown land: see, eg, Ex p Collins (1914) 14 SR (NSW) 31 (NSWSC). See also Bodney v Westralia Airports Corporation [2000] FCA 1609, (2000) 109 FCR 178 (FCA) [45] (Lehane J). 226   Ward (n 67) [227] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). In this context, see the Ward Court’s treatment of the vesting of reserved land under s 33 of the Land Act 1933 (WA). Because the relevant land was reserved to the Crown (under s 29) prior to being vested, the vesting occurred after the Crown had exercised its sovereign power to appropriate the land to itself: ibid [236], [251]. Thus, the High Court’s conclusion at [249] that, ‘because the vesting [of such] a reserve in a body or person vests the legal estate in fee simple to the land in that body or person and obliges the body or person to hold the land on trust for the stated purposes, rights are vested in that body or person which are inconsistent with the continued existence of any native title rights or interests to the land’, merely stated the situation under the common law. The Crown’s radical title had been converted to beneficial ownership prior to the vesting; the statutory vesting did not confer a beneficial interest on the Crown. Ward’s treatment of the vesting of reserves was approved by the Full Court of the Federal Court in James v Western Australia [2010] FCAFC 77, (2010) FCR 582 [45] (Sundberg, Stone and Barker JJ).

270  Crown Acquisition of a Plenary Title Wik concerned pastoral leases granted under the 1910 and 1962 Queensland Land Acts.227 In the Land Act 1910 (Qld), the term ‘Crown Land’ was defined, in section 4, as follows: All land in Queensland, except land which is, for the time being – (a) Lawfully granted or contracted to be granted in fee-simple by the Crown; or (b) Reserved for or dedicated to public purposes; or (c) Subject to any lease or license lawfully granted by the Crown: Provided that land held under an occupation license shall be deemed to be Crown land.

Section 4 of the Land Act 1910 (Qld) followed the terms of earlier legislation228 and the definition of ‘Crown Land’ in section 5 of the Land Act 1962 (Qld) was in similar terms to section 4 of the 1910 Act.229 Although this pattern is continued in the current Queensland Land Act,230 the current Act has replaced the term ‘Crown land’ with ‘Unallocated state land’.231 Nevertheless, the various incarnations of the Queensland Land Act do not alter the nature of the Crown’s title to unalienated land, which remains radical. Since there is considerable authority for the proposition that radical title is a bare legal title sufficient to support the Crown’s right to acquire and confer title, but not title itself, the crucial question is: does the statutory definition of Crown land considered in light of the policy of the regime regulating the alienation of land support this interpretation? iii  Policy of Crown Lands Legislation It is clear from both Mabo and Wik, that ‘Crown land’ does not equate with ‘Crown property’ per se; indeed, a contrary conclusion would have prevented any recognition of native title in Australia.232 It was seen in chapter four, however, that pre-Mabo, Stephen 227   Ward concerned pastoral leases granted under the Land Act 1898 (WA). The Land Act 1898 (WA) was repealed by the Land Act 1933 (WA). 228   Including: Pastoral Leases Act 1869 (Qld), s 3; Crown Lands Act 1884 (Qld), s 4; Land Act 1897 (Qld), s 4. 229   See also Wik (n 6) 190 (Gummow J). 230   Land Act 1994 (Qld) repealing and replacing the Land Act 1962 (Qld). 231   ‘Unallocated State Land’ is defined to mean all land that is not: ‘(a) freehold land, or land contracted to be granted in fee simple by the State; or (b) a road or reserve, including a national park, conservation park, State forest or timber reserve; or (c) subject to a lease, licence or permit issued by the State’: Land Act 1994, sch 6. 232   See Deane and Gaudron JJ’s observation in Mabo (n 2) 114 in the context of an early incarnation of the current Land Act 1994 (Qld), that the provisions of the Crown Lands Alienation Act 1876 (Qld) ‘did not, of themselves, either extinguish existing common law native title in relation to the lands to which it applied or make [the native titleholders] trespassers upon those lands’; Toohey J’s comment in Mabo (n 2) 198 that ‘if the plaintiffs make good their claim to traditional native title . . . there is nothing in the legislative history of Queensland . . . which is destructive of traditional title’. Brennan J similarly observed that although Crown lands legislation was founded on the assumption of the initial absolute Crown ownership of all land and resources, by simply recognising the underlying radical title of the Crown, such legislation did not extinguish native title: ibid 65–67. Rather than being dispossessed by such legislation, Brennan J concluded that the Aboriginal people of Australia ‘were dispossessed by the Crown’s exercise of its sovereign power to grant land to whom it chose and to appropriate to itself the beneficial ownership of parcels of land for the Crown’s purposes’: ibid 68. All members of the High Court in Mabo, except Dawson J, agreed with this conclusion: ibid 110–11 (Deane and Gaudron JJ), 196 (Toohey J). The High Court also endorsed this view in Western Australia v The Commonwealth (1995) 183 CLR 373 (HCA) 433–34 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ): ‘[S]ince the establishment of the Colony [of Western Australia] native title in respect of particular parcels of land has been extinguished only parcel by parcel. It has been extinguished by the valid exercise of power to grant interests in some of those parcels and to appropriate others of them for the use of the Crown inconsistently with the continuing right of Aborigines to enjoy native title’. See also RH Bartlett, Native Title in Australia, 2nd edn (Australia, LexisNexis Butterworths, 2004) 301, 303–08. Sections 20(1) and 21 of the



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CJ in A-G v Brown relied upon early Imperial and colonial enactments as a reason for attributing absolute beneficial ownership of waste lands of Australia to the Crown since settlement.233 Nevertheless, it was also seen that such instruments merely recognised the Crown’s right to grant interests in land; they did not, nor did they need to, assert any property rights of the Crown in unalienated land. They were consistent with acknow­ ledgment of mere radical title in the Crown. However, Stephen CJ erroneously assumed that if the Crown did not have absolute beneficial ownership of land, it could not effectively grant the land:234 an assumption which has been rejected by the High Court in both Mabo and Wik. Crucially, because Crown lands legislation in Australia merely recognises the Crown’s radical title, it does not extinguish native title,235 but the Crown has power to do so by inconsistent grant per se.236 Although this conclusion might suggest that radical title is a full property right subject to native title, it is also consistent with the proposition that radical title is a nominal title only which does not confer any beneficial entitlement to the land to which it relates. And the latter construction is consistent with the object and purpose of Crown lands legislation. In the context of the New South Wales lands legislation, it has been pointed out that the object of such legislation from 1861 onwards was to control the Crown prerogative of disposing of the waste lands of the Colony at will and to provide the subjects of the Crown with a statutory right, upon the performance of conditions, to have a grant of land from the Crown.237 (emphasis added) Property Law Act 1974 (Qld) are also consistent with this analysis. Section 21 merely maintains the position that land which is ‘held of the Crown in fee simple may be assured in fee simple without licence and without fine and the person taking under the assurance shall hold the land of the Crown in the same manner as the land was held before the assurance took effect’. Section 20(1) merely confirms that ‘[a]ll tenures created by the Crown upon any grant in fee simple . . . shall be taken to be in free and common socage without any incident of tenure for the benefit of the Crown’. 233   Albeit in obiter: A-G v Brown (n 5) 318–19. See discussion in ch 4 text to nn 40–58. 234   Like the Courts in Symonds (n 81); Johnson (n 116); Worcester v Georgia 31 US 515 (1832) (USSC). See discussion in ch 4 text to n 59ff. 235   Mabo (n 2) 66, 68–69 (Brennan J), 110–11 (Deane and Gaudron JJ), 196 (Toohey J); Western Australia v Cth (n 232) 433–34 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). Similarly, general schemes of land regulation have not been treated in America or Canada as amounting to an expansion of radical title for the purpose of extinguishing native title: Gila River Pima-Maricopa Indian Community v United States 494 F 2d 1386 (1974) (US Ct Cl); R v Sparrow [1990] 1 SCR 1075 (USSC). This conclusion is also supported by the British Columbia Court of Appeal and the Canadian Supreme Court’s interpretation in Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 (BCCA) and Calder v Attorney-General of British Columbia [1973] SCR 313 (SCC), respectively, of the legislation promulgated in order to assist British settlement in and authority over the colony of British Columbia. Significantly, this legislation included the provision that ‘All the lands in British Columbia, and all Mines and Mineral therein, belong to the Crown in fee’ (emphasis added): cited in DelgamuukwCA 528. In interpreting this provision, the courts focused on 13 colonial instruments, enacted between 1858 and 1870, dealing with land and the purchase, pre-emption and settlement of land: see DelgamuukwCA 525–31 (Macfarlane JA); Calder 331–33 (Judson J), 410–13 (Hall J). The British Columbia Court of Appeal unanimously held that the express declaration of land belonging to the Crown ‘in fee’ merely declared the existing underlying title of the Crown, which could, therefore, coexist with native title. Indeed, Macfarlane JA concluded that the existing situation which the legislation declared was that ‘only the Crown was competent to convey land interests to third parties’ because ‘[t]he Crown held the underlying title to all lands in the province’: DelgamuukwCA 530. Thus, the provisions relating to the Crown’s fee simple title had to be ‘understood in the context of setting up an orderly system of purchase, pre-emption and settlement’: ibid 675 (Lambert JA). In Western Australia v Cth (n 232) the High Court’s analysis is consistent with this approach: 433 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). See also Wik (n 6) 125–26 (Toohey J), 248 (Kirby J). In both jurisdictions, therefore, the Crown’s colonial policy was capable of being implemented without a general expansion of the Crown’s radical title. 236   Mabo (n 2) 68–69 (Brennan J). See the objections to this aspect of the Mabo Court’s decision: ch 3 text to nn 283–95; ch 8 n 7. 237   Walsh v Minister for Lands for NSW (1960) 103 CLR 240 (HCA) 254 (Windeyer J).

272  Crown Acquisition of a Plenary Title The purpose of the introduction of a land settlement scheme was to facilitate the orderly settlement of the colonies and to give the Crown control over grants to third parties.238 Thus, the series of Acts passed by the various Australian colonial parliaments dealing with the disposition of unalienated lands merely needed to empower the Governor-inCouncil to exercise the Crown’s sovereign power by granting estates and interests in land in accordance with the Acts; they did not need to vest, or acknowledge, absolute beneficial ownership of land in the Governor-in-Council, the Crown or anyone else.239 Indeed, in the British Columbia Court of Appeal’s decision in Delgamuukw v British Columbia,240 Macfarlane JA observed that ‘[o]ne should assume that the object [of Crown lands legislation] was to achieve the desired result with as little disruption as possible, and without affecting accrued rights and existing status any more than was necessary’.241 This dictum was approved of by the High Court of Australia in Western Australia v The Commonwealth242 and was cited with approval by Toohey J in Wik.243 Accordingly, in Australia, since all Crown lands legislation passed by the colonial governments was founded upon the assumption of absolute Crown ownership of all land, such legislation presupposed, rather than conferred, the Crown’s title. This presupposition about the ‘existing status’ of the Crown’s title has, of course, been shown to be incorrect. Moreover, it has been seen that the presumption of original Crown ownership is not relevant in the context of statutory grant.244 Accordingly, the passage of legislation declaring powers of disposition of land and resources is not sufficient to ‘affect’ the ‘existing status’ of the Crown’s title, that is, to enhance the Crown’s radical title. Consequently, the pre-Mabo view that statutory definitions of ‘Crown land’ refer to any land which, pursuant to legislative enactment, is the property of the Commonwealth, a State or Territory,245 no longer accurately reflects the law.246 Indeed, pre-Mabo, the High Court of Australia in Sydney Harbour Trust Commissioners v Wailes247 acknowledged that there was a distinction between land which is ‘Crown land’ and land which is the ‘property of the Crown’.248

238   See Macfarlane JA’s comments in DelgamuukwCA to similar effect in the context of the impact of various colonial instruments on Aboriginal rights in British Columbia: above n 235. 239   It is worth noting that acknowledgment of the power to grant estates in land, rather than acknowledgment of absolute beneficial ownership of land, is also evident in Governor Phillip’s Commission, dated 2 April 1787: ‘And We do hereby likewise give and grant unto you full power and authority to agree for such lands tenements and hereditaments as shall be in Our power to dispose of and grant to any person or persons upon such terms and under such moderate quit rents services and acknowledgments to be thereupon reserved unto Us according to such instructions as shall be given to you under Our Sign Manual which said grants are to pass and be sealed by Our Seal of Our said Territory and its dependencies and being entered upon record by such officer or officers as you shall appoint thereunto shall be good and effectual in law against Us Our heirs and successors’. See also Olney J’s analysis of the history of fisheries legislation and administration in relation to the claimed area in Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 (FCA) 594–99. 240   Above n 235. 241   DelgamuukwCA (n 235) [251]. 242   Western Australia v Cth (n 232) 433 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). 243   Wik (n 6) 125–26. 244   At least in the context of statutory grants of pastoral leases: see above text to n 206. 245   See, eg, Halsbury’s Laws of Australia (LexisNexis at 9 February 2011) 355 Real Property, ‘VI Other’ para 355-13500. 246   See also the discussion of legislative declarations of Crown property in resumed land above text to n 215. 247   Sydney Harbour Trust Commissioners v Wailes (1908) 5 CLR 879 (HCA). 248   ibid 883 (Griffith CJ).



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iv Pre-Mabo Distinction between ‘Crown Land’ and ‘Property of the Crown’ In 1908, in Sydney Harbour Trust Commissioners v Wailes,249 Griffith CJ observed that the ‘term “property of the Crown” was [not] equivalent to Crown lands’.250 Although the term ‘property of the Crown’ covered ‘all property of which the Crown [was] the formal owner’, this included not only the waste lands of the Crown but also ‘lands which are the property of the Crown vested in some statutory corporation as trustee for the Crown’ (emphasis added).251 According to the Chief Justice, therefore, ‘property of the Crown’ referred not only to all unalienated land in Australia, but also to all land which had been appropriated to the Crown.252 ‘Crown land’ simpliciter,253 however, referred only to unalienated (or waste) land. Although this was no doubt the correct interpretation pre-Mabo,254 the post-Mabo conception of the nature of the title acquired by the Crown upon settlement necessitated its reassessment. Post-Mabo, although the Crown acquired a radical title to all land upon acquisition of sovereignty, beneficial title required an appropriate exercise of sovereign authority. In terms of Griffith CJ’s definition, therefore, ‘property of the Crown’, being land in respect of which the Crown is the ‘formal owner’, refers to land in respect of which the Crown has not only radical title but also beneficial ownership. Thus, the Crown must have exercised its sovereign power to appropriate ownership of the land to itself. On the other hand, ‘Crown land’, being unalienated and unappropriated land, refers to land in respect of which the Crown has only a radical title. In this context, the Crown has not taken the appropriate steps to become the formal owner. Importantly, this reassessment preserves the unalienated/appropriated dichotomy integral to the Chief Justice’s definition. v  Statutory Trespass It is clear from Mabo,255 Wik256 and Ward,257 that provisions in Crown lands legislation that deal with trespass on Crown lands258 do not extinguish native title nor make Aboriginal people who occupied the land by right of their unextinguished title trespassers. However, it is the High Court’s construction of the trespass provisions that is crucial   A unanimous decision of the High Court.   Sydney Harbour Trust Commissioners v Wailes (n 247) 883 referring to s 27 of the Sydney Harbour Trust Act 1900 (NSW). 251   ibid 884. 252   There is considerable authority indicating that the term ‘property’ is ambiguous: Minister for Army v Dalziel (1944) 68 CLR 261 (HCA) 276 (Latham CJ); McCaughey v Commissioner of Stamp Duties (1945) 46 SR (NSW) 192 (NSWSC) 201; Re Marriage of Duff (1977) 15 ALR 476 (FamCA); Yanner (n 74). In Yanner (n 74) 370 the High Court of Australia found that the declaration of ‘property’ referred merely to the ‘aggregate of the various rights of control by the Executive that the legislation created’. See also Bartlett’s analogous reasoning in the context of the effect of such provisions on native title: Bartlett, Native Title in Australia (n 232) paras 16.49, 16.50. 253   See also Commonwealth v New South Wales (n 197) 22 (Knox CJ and Starke J, Gavan Duffy J agreeing at 28), 62 (Higgins J). 254   Due to the belief that the Crown initially owned all land upon settlement. 255   Mabo (n 2) 66 (Brennan J, Mason CJ and McHugh J concurring), 114 (Deane and Gaudron JJ) 256   Wik (n 6) 120–21 (Toohey J), 146–47 (Gaudron J), 191–94 (Gummow J). 257   Ward (n 67) [176]–[182], esp [182] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). Unlike the legislation considered in Mabo and Wik, the relevant trespass provision considered in Ward (s 164 of the Land Act 1933 (WA)) made no provision for the holder of a pastoral lease to bring an action for removal of persons in ‘unlawful occupation’ of the land the subject of the pastoral lease: ibid [181]. 258   And declare it to be an offence for any unauthorised person to enter upon Crown land. 249 250

274  Crown Acquisition of a Plenary Title when considering whether ‘Crown land’ and ‘Crown property’ are mutually exclusive concepts. The relevant trespass provision in Mabo was section 91 of the Crown Lands Alienation Act 1876 (Qld). This section was one of the progenitors of the trespass provisions considered in Wik, namely, section 203 of the Land Act 1910 (Qld) (1910 Act) and section 372(1) of the Land Act 1962 (Qld) (1962 Act).259 Since the Wik High Court held that the conclusions reached with respect to section 203 of the 1910 Act applied to the 1962 provision,260 discussion will be confined to section 203 of the 1910 Act. This section provided: Any person, not lawfully claiming under a subsisting lease or license or otherwise under any Act relating to the occupation of Crown land, who is found occupying any Crown land or any reserve, or is found residing or erecting any hut or building or depasturing stock thereon, or clearing, digging up, enclosing, or cultivating any part thereof, shall be liable to a penalty not exceeding twenty pounds.

Gummow J explained that: On its face, s 203 would have rendered a trespasser any person who, in exercise of what now are characterised as having been native title rights, occupied any of the very large area of Queensland falling within the definition of ‘Crown land’ or conducted there any of the activities referred to in s 203. Were that so, the ground would be provided for a submission as to the general extinction of native title in respect of any land from time to time falling within the definition of ‘Crown land’.261

Nevertheless, the Wik High Court unanimously rejected the notion that the operation of section 203 involved the extinguishment of native title in relation to Crown land. In reaching this conclusion, the majority adopted Brennan J’s construction of section 91 of the Crown Lands Alienation Act 1876 (Qld)262 in Mabo.263 Brennan J’s interpretation of section 91 is, therefore, critical. Section 91 provided: Any person unless lawfully claiming under a subsisting lease or license or otherwise under this Act who shall be found occupying any Crown lands or land granted reserved or dedicated for public purposes either by residing or by erecting any hut or building thereon or by clearing digging up enclosing or cultivating any part thereof or cutting or removing timber otherwise than firewood not for sale thereon shall be liable on conviction to a penalty not exceeding five pounds for the first offence and not exceeding ten pounds for the second offence and not exceeding twenty pounds for the third or any subsequent offence. Provided that no information shall be laid for any second or subsequent offences until thirty clear days shall have elapsed from the date of the previous conviction.

In the context of explaining the application of section 91, Brennan J drew a distinction between ‘those who were or are in occupation under colour of a Crown grant or without any colour of right’ and ‘indigenous inhabitants who were or are in occupation of land

259   In essence, these provisions followed the terms of the Unoccupied Crown Lands Occupation Act 1860 (Qld), s 29; Pastoral Leases Act 1869 (Qld), s 72; Crown Lands Alienation Act 1876 (Qld), s 91; Crown Lands Act 1884 (Qld), s 124; Land Act 1897 (Qld), s 236. 260   See, eg, Wik (n 6) 195 (Gummow J). 261   ibid 190–91. 262   See below n 267 and text. 263   Although Brennan CJ delivered the minority judgment in Wik, he also adhered to his earlier views.



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by right of their unextinguished native title’.264 Section 91 was directed to the former but not the latter.265 Thus, Aboriginal inhabitants whose title did not derive from Crown grant were not included in the class or description of persons to whom section 91 was directed.266 Although the majority justices in Wik (except Kirby J)267 expressly referred to and agreed with the construction given to section 91 by Brennan J,268 only Gummow J attempted any analysis of Brennan J’s approach. According to Gummow J, section 91 was not directed to Aboriginal inhabitants in occupation of land by right of their unextinguished native title because such Aboriginal inhabitants ‘would not be “any person”’ for the purposes of the section.269 This analysis highlights the implications of the doctrine of tenure in the post-Mabo Australian real property law context: although the doctrine of tenure ad veritatem applies to every Crown grant of an interest in land and thus secures the Crown as a source of derivative title to land (when the Crown has alienated land), it does not preclude the existence of other interests in land which do not owe their existence to a Crown grant.270 Accordingly, neither section 203 (nor its predecessor, section 91) applied to persons having an interest in land which was not derived from a Crown grant, like a native title right or interest.271 This is crucial: it means that the trespass provisions would not apply to a person in the position of the defendant in Step v Hinton if they pleaded their case on the basis of having acquired first title to unalienated land by occupancy.272 Although the existence of such a non-Crown derived title, like native title, was not contemplated when the relevant statutory provisions were enacted, the holder of a title by occupancy, like the holder of a title pursuant to Aboriginal laws and customs, would not be a trespasser according to the High Court’s analysis. To paraphrase the words of Brennan J, section 203 applied to those who were in occupation under colour of a Crown grant or without colour of a Crown grant, but not to those in occupation of land by right of an interest in land not derived from Crown grant. Furthermore, the operation of section 203, by merely creating a statutory offence of trespass, did not involve an expansion of the Crown’s radical title to beneficial ownership. In the event of its contravention, however, section 203 did provide for a penalty.273 A specific remedy for the removal of trespassers was also conferred by section 204 of the 1910 Act,274 which provided: Any Commissioner or officer authorised in that behalf by the Minister who has reason to believe that any person is in unlawful occupation of any Crown land under colour of any lease or license that has become forfeited, may make complaint before justices, who shall hear and   Mabo (n 2) 66.   Similar conclusions were reached in respect of soil conservation legislation and local government by-laws which imposed restrictions on land use in Hayes v Northern Territory [1999] FCA 1248, (1999) 97 FCR 32 (FCA) [120] and weed control legislation in Ward v Western Australia (n 215) 616. 266   Wik (n 6) 191 (Gummow J). 267   cf Wik (n 6) 246–47 where Kirby J denied that the general provisions of the 1910 and 1962 Land Acts involved any extinguishment of native title. 268   Wik (n 6) 121 (Toohey J), 146–47, 154–55 (Gaudron J), 192–95 (Gummow J). 269   ibid 191. 270   Mabo (n 2) 50–51. 271   Indeed, this analysis has implications for any valid non-Crown derived title. And it will be seen in ch 7 that as a result of the Mabo High Court’s restatement of the common law, Aboriginal customary law can be a valid source of common law title to land independently of native title. 272   See above text to nn 87–104. 273   A fine not exceeding £20. 274   The corresponding provision in the 1962 Act is s 373(1). 264 265

276  Crown Acquisition of a Plenary Title determine the matter in summary way, and, on being satisfied of the truth of the complaint, shall issue their warrant, addressed to the Commissioner or to such authorised officer or to any police constable, requiring him forthwith to remove such person from such land, and to take possession of the same on behalf of the Crown; and the person to whom the warrant is addressed shall forthwith carry the same into execution. A lessee or his manager or a licensee of land from the Crown may in like manner make a complaint against any person in unlawful occupation of any part of the land comprised in the lease or license, and the like proceedings shall thereupon be had.

Although the legislation considered in Ward made no provision for the removal of trespassers, like the legislation considered in Mabo, it did provide for a penalty in the event of ‘unlawful or unauthorised use or occupation of any Crown lands’.275 While the majority in Ward expressly approved of Gaudron J and Gummow J’s analysis in Wik in this context, both of these justices had agreed with Brennan J’s construction of the relevant legislation in Mabo. Thus, the Ward High Court made it clear that these penal provisions should not be understood as working an extinguishment of native title because ‘persons found in the “unlawful or unauthorised use or occupation” of Crown lands did not extend to persons exercising native title rights and interests’.276 Nevertheless, by providing for the recovery of possession on behalf of the Crown, the actual execution of section 204 of the 1910 Act could arguably constitute an exercise of the Crown’s sovereign power to appropriate the land to itself, thereby converting its radical title to full beneficial ownership.277 Since the Crown’s radical title is clearly subject to any native title rights and interests in land, such a result would mean that the act of taking possession on behalf of the Crown, for the purposes of section 204, has the effect of extinguishing any native title to the land.278 In this context, Gaudron J and Gummow J’s view in Wik that the construction of section 203 was equally applicable to

275   The Land Act 1933 (WA), s 164 provided: ‘Every person who, either by himself or by his servant, agent, or other person acting under his direction, shall be found in the unlawful or unauthorised use or occupation of any Crown lands, or land reserved for or dedicated to any public purpose, or set apart as town or suburban lands, or who in any manner trespasses thereon, shall on conviction be liable to a fine not exceeding twenty-five pounds’. 276   Ward (n 67) [182] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). 277   cf acquisition of title by occupancy as one method of converting the Crown’s radical title to unoccupied land into beneficial ownership discussed above. 278   Indeed, although the Wik High Court made it clear that inconsistency with native title, and therefore extinguishment in law, was determined by examining the legal character of the rights conferred by the grant, not the exercise of such rights, both Gaudron and Gummow JJ considered that extinguishment might also result ‘as a matter of fact, but not as a matter of legal necessity’, from the actual performance of conditions under the lease, such as the construction of buildings, which created an inconsistency with the exercise of native title rights: Wik (n 6) 166 (Gaudron J), 203 (Gummow J). In WardFC (n 221) the majority of the Full Court of the Federal Court explained that Gaudron and Gummow JJ’s observations in Wik referred to what they described as ‘operational inconsistency’. Although the majority of the High Court in Ward rejected, ‘in principle’, the concept of ‘operational inconsistency’, the Court was dealing with the statutory, rather than the common law, position vis-a-vis extinguishment of native title: see discussion in ch 4 text to n 278ff. In any event, s 204 arguably constitutes a statutory form of operational inconsistency, not unlike the concept of operational inconsistency recognised by the Native Title Act 1993 (Cth) ss 23B(9C), 23DA. In effect, therefore, the legislative provisions facilitate the amplification of the Crown’s radical title pro tanto; allowing for a gradual appropriation of proprietary rights over the land.



Crown Land Statutes 277

section 204 is significant.279 That is, although section 204, like section 203,280 does not apply to those in occupation of land by right of an interest in land not derived from Crown grant, if a trespasser within section 203 is removed (or possibly fined), this might constitute an appropriate exercise of the Crown’s sovereign power in relation to that land for the purpose of converting its radical title to full beneficial ownership.281 With respect, therefore, the Court of Appeal’s conclusion in Step v Hinton that, ‘[a]t the time of his entry upon the land, the [defendant] was a trespasser’ (emphasis added)282 is wrong in law. The act of trespass can only be committed on unalienated Crown land after the Crown has validly converted its radical title to the land into beneficial ownership. Since the Crown’s title is not expanded by virtue of the statutory trespass provisions per se, there must be some actual execution of the statutory provisions (such as removal, service of notice/fines) before the offence is established. The important point is, however, that the legislative provisions will only be invoked if there is a ‘trespasser’. That is, if a person is in unlawful occupation of Crown land ‘under colour of a Crown grant or without any colour of right’.283 Thus, where a person is in possession of land by virtue of a non-Crown derived title,284 the legislation does not apply. Whether or not Australian courts find that the Crown’s act in removing trespassers pursuant to the various State and Territory provisions equivalent to section 204 of the 1910 Act enhances the Crown’s radical title, the argument that radical title is merely a bare legal title rather than a full proprietary right is intact. This is because a full beneficial title does not vest in the Crown by the common law but by force of an act done pursuant to the statute. Indeed, it is clear that sections 203 and 204 of the 1910 Act do not, of themselves, expand the Crown’s radical title to a plenary title. At the very least, therefore, before the Crown takes action to remove a trespasser pursuant to these sections, it has not formally entitled itself to the land.285 Thus, statutory trespass provisions merely represent an exercise of the power of control over entry on Crown land which, like the power of disposition of Crown lands, does not of itself necessitate the expansion of the Crown’s radical title to beneficial ownership. Furthermore, the historical background to the enactment of sections 203 and 204 of the 1910 Act support the view that ‘Crown land’ does not mean ‘Crown property’. 279   They concluded that once it was accepted that s 203 did not render Aboriginal people trespassers on their own land, it followed that s 204 did not render native titleholders liable to removal because the section did not apply to them. In addition, Gummow J found that ‘a bona fide assertion of a claim to rights conferred by native title would not render occupation unlawful’ within the meaning of s 204: Wik (n 6) 193, 194 (Gummow J). See also ibid 240 (Kirby J). 280   And possibly the Land Act 1933 (WA), s 164. 281   A necessary consequence of such a conclusion would be that native title in respect of the land would be extinguished. Note, however, the difference (discussed in chs 3 and 7) in terms of vulnerability to extinguishment between common law non-Crown derived title and non-common law non-Crown derived title (eg native title). In any event, it is suggested that the operation of s 204 is analogous to the situation where the Crown has granted land in trust or has reserved land for a public purpose or for Aboriginal people: see Mabo (n 2) 66 (Brennan J). In neither case does the exercise of sovereign power reveal a clear and plain intention to extinguish any non-Crown derived title. 282   Step v Hinton (n 87) [15]. See also discussion above text to nn 95–103. 283   The phrase is Brennan J’s: see above text to n 264. 284   Although this necessarily includes occupation of land pursuant to native title, it would also encompass occupation of land pursuant to a common law title acquired by occupancy. 285   Consequently, because the fiction of original Crown ownership only applies in respect of a tenure created by Crown grant, this fiction can no longer, of itself, preclude acquisition of first title to unalienated and uninhabited land in Australia: see above text to n 80.

278  Crown Acquisition of a Plenary Title The 1910 Act was enacted at a time when there was doubt whether, at common law, the Crown was obliged to proceed by way of information for intrusion because it could not maintain an action for ejectment. Although these doubts were dispelled pre-Mabo,286 they assist in perceiving the purpose of section 204 in conferring a specific remedy for the removal of trespassers from Crown land.287 Before the procedure in ejectment was reformed in England by the Common Law Procedure Act 1852 (UK),288 counsel in Doe d Hayne v Redfern289 suggested that the Crown could not maintain an action in ejectment because: [T]he action of ejectment by the King supposes him to have been turned out of possession, which cannot be; for if he be entitled at all, he is presumed to be in possession: and although ejectment be a fictitious proceeding, yet it must be consistent throughout, and the lessor must not only have in himself, but be capable of conveying to the plaintiff, a legal interest. So an intruder is not supposed to put the King out of possession; and therefore if the King have judgment on an information of intrusion, no habere facias seisinam issues.290

Thus, at common law, the King could not sue in ejectment because to maintain such an action would be ‘inconsistent with his royal dignity, and contradictory to the fiction of law, that the King cannot be dispossessed of property once vested in him’ (emphasis added).291 While the rule that the Crown cannot be dispossessed is another example of a fiction concerning the Crown’s title to land, the High Court’s identification of radical title as the postulate of the doctrine of tenure has begun the process of deconstructing the fiction mound. It has limited the application of the fiction of original Crown ownership to land which has been brought within the doctrine of tenure ad veritatem, for only then is it required to ensure the Crown of its rights as feudal lord. And because the doctrine of tenure ad veritatem only applies to every Crown grant of an interest in land, the fiction of original Crown grant has been rendered otiose.292 Pursuant to the post-Mabo doctrine of tenure ad veritatem, therefore, the fiction that the Crown cannot be dispossessed only applies in situations where the Crown is possessed. And to be possessed, the Crown must have a beneficial title as a matter of record.293 Indeed, it has been seen that although an information of intrusion presumed the Crown’s ownership of land, it could be rebutted.294 Moreover, an office of entitlement, which found rather than gave the Crown its title, was necessary, in the absence of other record of the Crown’s title, to give the Crown possession whenever lands were in possession of a subject when the Crown’s title accrued.295 In light of the High Court’s rejection of legal fictions, it is suggested that an office of entitlement is necessary, in the absence of another record of the Crown’s title, in order to establish the Crown’s right to possession   Commonwealth v Anderson (1960) 105 CLR 303 (HCA) 318.   Wik (n 6) 191 (Gummow J). 288   15 & 16 Vic c 76. 289   Doe d Hayne v Redfern (1810) 12 East 96, 104 ER 39 (KB). 290   Doe d Hayne v Redfern (1810) 12 East 96, 107; 104 ER 39, 43 (KB). 291   Chitty (n 4) 245. See also Lee v Norris (1594) Cro Eliz 331; 78 ER 580 (QB); R v Bishop of Winton (1604) Cro Jac 53, 79 ER 45 (CP), sub nom R v Champion (1606) Cro Jac 123, 79 ER 107 (KB); Doe d Hayne v Redfern (1810) 12 East 96, 104 ER 39 (KB); Attorney-General v Lord Churchill (1841) 8 M & W 171, 177, 186, 187, 191; 151 ER 997, 99, 1003, 1005 (Ex). 292   See ch 3 text to n 29; above n 206 and text. 293   See above text to n 130. 294   Above n 171ff and text. 295   Above n 140ff and text. 286 287



Crown Land Statutes 279

of land. If land is unalienated and unappropriated, the Crown has, after all, only a radical title to the land. Importantly, inquests of office were necessary where the freehold was not cast upon the Crown by law.296 The crucial point is that, ‘property of the Crown’ means land in respect of which both radical title and beneficial ownership is vested in the Crown;297 that is, the Crown has formally entitled itself to the land. On the other hand, the definition of ‘Crown Land’ for the purpose of the Crown land statutes means land in respect of which radical title only is vested in the Crown; that is, the Crown has not formally entitled itself to the land. Consequently, the exception in the 1910 and 1962 Queensland Land Acts’ definition of ‘Crown Land’ – in respect of land which is, for the time being, granted or contracted in fee simple by the Crown; or reserved for or dedicated to public purposes; or subject to any lease, licence or permit – simply means land in respect of which the Crown no longer has radical title. There are, however, two limbs to this exception. First, where the Crown has exercised its sovereign power to grant an interest in land, the Crown will no longer have radical title, a power of alienation, over that land. In this context, Kirby J has observed that ‘[p]astoral lease land did not remain Crown land for the purposes of the [Queensland] Land Act’.298 Secondly, where the Crown has exercised its sovereign power to appropriate to itself ownership of the land, the Crown will have become the formal owner, and thus have both radical title to, and beneficial ownership of, the land. For the duration of any dealing in land, therefore, the land ceases to be land in respect of which the Crown has a mere radical title. Where the Crown has exercised its sovereign power to grant an interest in land, however, the Crown has a statutory power to compulsorily acquire private property.299 Notwithstanding the Crown’s loss of radical title over certain land which no longer comes within the statutory definition of ‘Crown land’, by legislative enactment the Crown may still have radical title over that land for other specified purposes. That is, the Crown may retain a radical title in respect of the land for purposes other than the Crown lands legislation. In the context of pastoral lease land in Queensland, such land remains Crown land for the purposes of many other statutes, including mining and petroleum legislation.300 Alternatively, the Crown may be deemed to retain radical title in a limited way for the purpose of the Crown lands legislation. In this context, land subject to a pastoral lease in Western Australia remains Crown land as defined in the relevant Land Act.301 As Brennan CJ pointed out in Wik, this is significant because the ‘problems of mining leases over land already leased by the Crown arise precisely because the Crown has already disposed of the leasehold estate in the land’.302   Above text to nn 145–63, esp n 161. See also McNeil (n 4) 96.   cf the position with respect to statutory declarations of Crown property: Bartlett (n 232) 303–06. 298   Wik (n 6) 241 fn 888. 299   See ch 4 n 104. 300   See, eg, Mining Act 1898 (Qld), s 3; Mining Act 1968 (Qld), s 7; Petroleum Act 1923 (Qld), s 3. 301   eg, in Western Australia pastoral lease land remains Crown land as defined in the Land Regulations 1887 (WA), Land Act 1898 (WA) and Land Act 1933 (WA): Ward v Western Australia (n 215) 556; Ward (n 67) [174] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). Furthermore, pastoral lease land is still ‘Crown land’ for the purposes of other legislation dealing with control, management and possession of such land and of flora and fauna, to wit, legislation dealing with the mining of minerals and petroleum, drainage and catchment of water, and conservation of land, flora and fauna: Mining Act 1904 (WA), s 3; Mining Act 1978 (WA); s 8; Petroleum Act 1936 (WA), s 4; Petroleum Act 1967 (WA), s 5; Land Drainage Act 1925 (WA), s 6; Wildlife Conservation Act 1950 (WA), s 6; Conservation and Land Management Act 1984 (WA), s11: see Ward v Western Australia (n 215) 556. 302   Wik (n 6) 75. 296 297

280  Crown Acquisition of a Plenary Title Thus, the High Court’s treatment of the statutory definition of ‘Crown land’ and the statutory trespass provisions support the proposition that ‘Crown land’, being land over which the Crown has only radical title, merely connotes the right of the Crown to dispose of land, rather than the Crown’s proprietorship of land. Further support for this proposition is found in the legislative provisions dealing with the constitutional power to legislate regarding Crown land. IV  LEGISLATIVE PROVISIONS DEALING WITH THE POWER TO LEGISLATE REGARDING CROWN LAND

The various state constitutions are the source of legislative power to deal with Crown land in Australia. Between 1855 and 1890, the enactment of local constitutions, which embodied the principle of responsible government, transferred the management and control of Crown lands to the colonial legislatures.303 Prior to the establishment of responsible government, the Imperial government maintained exclusive control over the disposal of Crown land, or as they were termed in the early days of the colonies, ‘waste lands of the Crown’.304 Furthermore, until as late as 1842, there was no statutory restriction on the disposal of unalienated land; land was entirely administered by the Governor according to directions received from the Colonial Office.305 In 1842, however, the Sale of Waste Lands Act 1842 (Imp) (1842 Act)306 restricted the power of the Imperial government to dispose of the waste lands and apply the proceeds.307 Nevertheless, it did not confer any such power on the colonial legislatures. The Act was intended as a just and permanent settlement of the vexed land question: the Imperial government’s control of undisposed land as against colonial control. The colony obtained fixed rights with regard to the proceeds, but the exclusiveness of the Imperial government’s powers of disposal was maintained.308 Nevertheless, since the object of the Act was to place a restriction on the power to dispose of waste lands, the 1842 Act defined ‘waste lands of the Crown’ restrictively to mean land vested in Her Majesty, . . . and which have not been already granted or lawfully contracted to be granted . . . in fee simple, or for an estate of freehold, or for a term of years, and which have not been dedicated and set apart for some public use.309

Thus, the definition prevented ‘lands from being dealt with as waste land which had been made the subject, to put it broadly, of disposal or contract for a freehold or chattel interest or had been dedicated or set apart for some public use’.310 303   New South Wales Constitution Act 1855 (Imp); Constitution Act 1855 (NSW) repealed by Constitution Act 1902 (NSW); Constitution Act 1856 (SA) repealed by Constitution Act 1934 (SA); Constitution Act 1855 (Tas) repealed by Constitution Act 1934 (Tas); Victoria Constitution Act 1855 (Imp); Constitution Act 1855 (Vic) repealed by Constitution Act 1975 (Vic); Order-in-Council empowering the Governor of Queensland to Make Laws of 6 June 1859; Constitution Act 1867 (Qld); Western Australia Constitution Act 1890 (Imp); Constitution Act 1889 (WA). 304   Williams (n 13) 423 (Barton ACJ). 305   Note, however, that in 1831 Lord Ripon’s regulations introduced the principle of public sale. 306   5 & 6 Vic c 36. See also above n 233. 307   The disposing authority of the Crown was restricted to ‘conveyance or alienation by way of sale’ under prescribed regulations. 308   Williams (n 13) 450–51 (Isaacs J). 309   5 & 6 Vic c 36, s 23. The 1846 Act, 9 & 10 Vic c 104, s 9, contained a similar definition although land granted by way of lease did not cease to be Crown land. 310   Williams (n 13) 427 (Barton ACJ).



Power to Legislate Regarding Crown Land 281

The distinct line of policy represented by the 1842 Act, that of maintaining, under regulation, the exclusive Imperial right of disposing of waste land, was also emphasised with the passing of the Australian Constitutions Act (No 1).311 Although this Act enabled the legislature to enact laws for the peace, welfare and good government of the colony, it forbade any interference with the sale or other appropriation of the lands belonging to the Crown within the colony or the revenue arising therefrom.312 The prohibition was not, however, merely as to waste lands as previously defined, but as to the waste lands belonging to the Crown, ‘all of which might – in the opinion of Parliament – have otherwise come within its purview’.313 It is suggested that the introduction of this new terminology is the germ of the distinction between land which is the property of the Crown as a result of the Crown’s appropriation thereof and unalienated land, albeit that current perceptions of ‘unalienated land’ differ from those held at the time the Act was in effect.314 The 1842 Act was amended in 1846 by the Sale of Waste Lands Amendment Act (Imp) (1846 Act).315 Although this amending Act was the complement of the earlier statute and part of the same policy, the two Acts differed in the meaning they gave to the term ‘waste lands of the Crown’. As employed in the amending Act, the words ‘waste lands of the Crown’ described any lands in the colonies ‘which now are or hereafter shall be vested in Her Majesty . . . and which have not been already granted or lawfully contracted to be granted . . . in fee simple, and which have not been dedicated or set apart for some public use’.316 There were, therefore, two principal differences between the definitions contained in the 1842 and 1846 Acts. First, the 1842 Act used the words ‘dedicated and set apart’, whereas the 1846 Act used the words ‘dedicated or set apart’. Although the conjunctive ‘or’ was substituted for ‘and’ in the second definition, in all other respects, the aim of the amending Act appears to have been ‘to enlarge rather than to narrow the class of waste lands’.317 Secondly, in the earlier statute, lands granted or contracted to be granted for an estate of freehold less than the fee, or for years, were excluded from the meaning of waste lands, whereas in the latter statute land granted by way of lease did not cease to be waste land. The definitions of ‘waste lands of the Crown’ contained in these two Acts differed because they were given for the different purposes of the Acts. The first Act authorised sales, the second authorised leases and licences to occupy. Nevertheless, the prohibition on the colonial legislature against interfering with the sale or appropriation of land was continued. Moreover, the Imperial government reasserted its control over land in the colonies in 1850 by passing the Australian Constitutions Act (No 2) (Imp).318 The prohibition on the colonial legislatures pursuant to this Act was in terms similar to the first 311   5 & 6 Vic c 76. This Act enlarged the constitutional power of the colonies of New South Wales and Van Diemen’s Land. 312   5 & 6 Vic c 76, s 29. These broad legislative powers are conferred on the State parliaments under their constituent instruments: see Constitution Act 1902 (NSW), s 5; Constitution Act 1867 (Qld), s 2; Constitution Act 1850 (SA), s 14 and Australian Constitutions Act 1850 (Imp) 13 & 14 Vict c 59, s 14; Constitution Act 1975 (Vic), s 16; Constitution Act 1889 (WA), s 2(1). 313   Williams (n 13) 452 (Isaacs J). 314   See above text to n 196ff. 315   9 & 10 Vic c 104. 316   9 & 10 Vic c 104, s 9. 317   Williams (n 13) 462 (Higgins J). 318   13 & 14 Vic c 59.

282  Crown Acquisition of a Plenary Title Constitutions Act, namely against interfering with the sale or appropriation of ‘the lands belonging to the Crown’,319 not the waste lands as defined by the existing Acts. The institution of responsible government brought with it a reversal of policy; an abandonment of the system of political control with reference to which the previous Acts had been framed. Responsible government was obtained in New South Wales in 1855.320 In 1853, the New South Wales colonial legislature had framed a Constitution Bill under which it was no longer to be excluded from dealing with the lands of the colony. Section 43 of the Constitution empowered the legislature of the colony to ‘make laws for regulating the sale, letting, disposal, and occupation of the waste lands of the Crown’ within the colony. It was stipulated, however, that the new Constitution should not come into force until certain enactments relating to the colony and repugnant to the Constitution were repealed321 and the entire management and control of the waste lands belonging to the Crown in the said Colony . . . and also the appropriation of the gross proceeds of the sales of any such lands . . . shall be vested in the legislature of the said Colony.322

When the Constitution Bill was reserved for royal assent, it was found that it was not competent for the Queen to assent to it without the authority of Parliament. Consequently, the New South Wales Constitution Act 1855 (Imp), which gave the Queen the necessary authority and contained the local Constitution as a schedule, was passed. Section 2 of this Imperial Act vested in the legislature of New South Wales the entire management and control of the waste lands in the terms of the local Constitution.323 The passing of the management and control of the waste lands of the Crown to the colonial legislatures was, therefore, ‘a complete reversal of policy; . . . it was the adoption of an entirely new line of action, a complete transfer of political power, and all the local control of the subject matter which that political power required’.324 It effected a transfer of political power, ‘not as a matter of title . . . but as a matter of governmental function’;325 a proposition reiterated by Brennan J when rejecting the prerogative basis for absolute Crown ownership of all land in Australia in Mabo.326

  13 & 14 Vic c 59, s 14.   New South Wales Constitution Act 1855 (Imp) 18 & 19 Vic c 54; Constitution Act 1855 (NSW) 17 Vic c 41. 321   That is, the Acts of 5 & 6 Vic c 36, 9 & 10 Vic c 104 and 13 & 14 Vic c 59 and other Acts restricting the colonial power over the Customs and otherwise affecting the government of the colony: Constitution Act 1855 (NSW) 17 Vic c 41, s 58 and recited in the preamble of the Imperial Act 8 & 19 Vic c 54. 322   Constitution Act 1855 (NSW) 17 Vic c 41, s 58. The limiting provisions contained in the proviso to s 58, which are those in the proviso to s 2 of the Imperial covering Act, became exhausted long ago. Significantly, s 8 of the Constitution Act 1902 (NSW) contains no limitation whatever. 323   Constitution Act 1855 (NSW) 17 Vic c 41, s 58. Section 40 of the Constitution Act 1867 (Qld) is an analogous provision conferring power on the Queensland legislature to deal with Crown land. Section 40 provides that the entire management and control of waste lands in the colony shall be vested in its legislature. Section 30 of the Queensland Constitution Act provides that the legislature of the colony has power to make laws for regulating the sale, letting, disposal and occupation of waste lands of the Crown within the colony. See the corresponding provision in the Constitution Act 1855 (NSW) 17 Vic c 41, s 43. 324   Williams (n 13) 453 (Isaacs J), 467 (Gavan Duffy and Rich JJ agreeing), 467 (Powers J agreeing). 325   ibid 465 (Isaacs J). The Privy Council upheld this decision mainly on procedural grounds, but approved the High Court’s judgments: Attorney-General for New South Wales v Williams [1915] AC 573 (PC). Although Isaacs J’s judgment deals with the historical detail in relation to New South Wales, ‘[t]he position was no different in other colonies’: NSW v Commonwealth (n 33) 439 (Stephen J). 326   Brennan used the words ‘not a transfer of title but a transfer of political power’: Mabo (n 2) 53. 319 320



Conclusion 283

Although the control of sale and letting of the wastelands in Australia has been vested in the colonial legislatures since the introduction of responsible government, title to that land was merely assumed to have been vested in the Crown.327 As a result of the High Court’s acknowledgment of radical title, however, the legal nature of (initial) landholding by the Crown, in the right of the various States, has changed. It is now clear that the Crown’s title to unalienated land was radical only, a political notion rather than a real title for property purposes.328 Accordingly, the Crown was unable to transfer a better title to the colonial legislatures than it had. Furthermore, and notwithstanding the High Court’s adjustment of the nature of the Crown’s initial title to land, the transfer of political power effected by the introduction of responsible government required no more local control of the subject of land in the colony of New South Wales than a power of disposition.329 V CONCLUSION

Although, pre-Mabo, Australian courts took judicial notice of the fact that the Crown was the legal owner of all land in Australia at the time of settlement, judicial opinion was divided on the question of the source of such ownership: it was regarded as either a consequence of the feudal principle or as acquired by occupancy. Post-Mabo, however, it is clear that the doctrine of tenure ad veritatem and its accompanying fiction of original Crown ownership of land only apply in respect of every Crown grant of an interest in land with the result that the Crown is not to be deemed the owner of all land in Australia on the basis of the feudal principle. Indeed, post-Mabo, the Crown did not acquire a plenary title to land in Australia simply by acquiring a radical title to land upon assumption of sovereignty. The Crown can, nevertheless, acquire title by exercising its sovereign power to convert its radical title into beneficial ownership. In the case of unalienated and unoccupied land, the acquisition of title to land by occupancy is one way of converting the Crown’s radical title to the land into beneficial ownership.   In accordance with either the feudal doctrine of tenure or the doctrine of occupancy.  See Wik (n 6) 234 (Kirby J) referring to Brennan J’s statement in Mabo (n 2) 50 that ‘radical title, without more, is merely a logical postulate required to support the doctrine of tenure . . . and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory)’. 329   Williams (n 13) 453, 457 (Isaacs J). Rather than meaning land which is beneficially vested in the Crown, therefore, Crown land simply means land in respect of which radical title is vested in the Crown. Significantly, since the transfer of the management and control of the wastelands of the Crown included all mines and minerals, the minerals question is raised: that is, in the absence of adequate steps to expand its underlying title, does the Crown have only radical title to minerals? GD Meyers, CM Piper and HE Rumley, ‘Asking the Minerals Question: Rights in Minerals as an Incident of Native Title’ (1997) 2 Australian Indigenous Law Reporter 203, 242. Although an examination of this issue is beyond the scope of this work, see Cadia Holdings Pty Ltd v New South Wales [2010] HCA 27, (2010) 242 CLR 195 where s 379 of the Mining Act 1992 (NSW) preserved any Crown prerogative in respect of mines of gold and silver. French CJ stated that the outcome of the case was not affected if at the time of the Crown grants, the Crown held no more than radical title to the land granted: ibid [29]. It was sufficient that the rule of construction accepted in the Case of Mines (1568) 1 Plow 310, 75 ER 472 (Ex Ch) ‘required clear words or necessary implication before legislation or a grant thereunder could be taken as authorising a grant of land conveying with it rights to mines of gold and silver in the land’: ibid. French CJ explained: ‘the right of the Crown to mines of gold and silver has to be understood, insofar as it relates to unalienated Crown lands, in light of the concept of “radical title” considered in Mabo [No 2]. The existence of the right, whether it be characterised in terms of sovereign authority to deal with the mines or beneficial ownership of them, is unaffected by the Crown’s inability to enter, without a relevant authority, the land in which they are located’: ibid [51]. 327 328

284  Crown Acquisition of a Plenary Title It is clear that the Crown has acquired title to some land in Australia by occupancy upon settlement and subsequently. It is also clear that there remains unalienated land in respect of which the Crown has not acquired title to in this way. And although, preMabo, the possibility of a subject acquiring title by occupancy (or other valid mode of acquiring original ownership) was severely restricted by the fiction that all lands were originally possessed, and accordingly owned, by the Crown, since Mabo the fiction of original Crown ownership or any rule dependent upon it can no longer exclude acquisition of first title to unalienated and uninhabited real property in Australia. In addition to Crown grant and native title, other valid modes of acquiring original title to land, including acquisition of title by occupancy, can therefore be accommodated within Australian land law as distinct sources of (non-Crown derived) title. While the Crown’s sovereign powers at common law to appropriate unalienated land for public purposes and grant interests in land have been displaced by statutory powers, it is clear from the High Court’s decisions in Wik and Ward that ‘Crown land’ in the Queensland and Western Australian Land Acts, respectively, means land in respect of which the Crown has a radical title. This construction would no doubt also apply, by extension, to the various other statutory regimes regulating the alienation of land in Australia. Importantly, the Wik and Ward High Court’s treatment of residuary rights to, and resumptions/vesting of, Crown land which has previously been alienated, supports an interpretation of radical title as a nominal title only, investiture of which creates no automatic beneficial entitlement to the land to which it relates. In this context, two legal principles emerge: first, that the Crown’s statutory power to grant interests in land is not dependent upon the Crown’s beneficial ownership of the land; it is an incident of radical, rather than beneficial, title. Secondly, that legislation regulating the alienation of land does not confer on the Crown the estate necessary at common law to support the grant of any interest in land. Accordingly, the fiction of original Crown ownership of all land is no longer relevant in the context of the statutory regime regulating the alienation of land in Australia: there is no longer any legal reason for deeming the Crown to be the owner of all land in Australia, irrespective of whether the land is subject to native title. This conclusion is also confirmed by the policy and purpose of the legislation relating to Crown land in Australia and the Mabo/post-Mabo High Court’s analysis of it generally and, in particular, the statutory trespass provisions. While the statutory definition of ‘Crown land’, presupposed, rather than conferred, the Crown’s title to unalienated land, the constitutional settlement of the mid-nineteenth century – by which the Crown’s prerogatives to grant interests in land and to appropriate land to itself were displaced by statutory powers – effected a transfer of political power rather than title. Thus, when modified to incorporate the modern, yet retrospective, understanding of the Crown’s initial title to land, the definition of ‘Crown land’, or ‘radical title’, whether statutory or common law, must be distinguished from ‘Crown property’, or beneficial title – irrespective of the presence of native title. Whether at common law or pursuant to statute, the title which the Crown acquired to land in Australia upon assumption of sovereignty, radical title, did not, of itself, confer beneficial ownership of any land. Crown land will only become Crown property, when the Crown has taken appropriate steps to formally entitle itself to the land. The Crown must exercise its sovereign power before its underlying radical title converts to full beneficial ownership. Although the Crown can acquire beneficial title to unalienated and unoccupied land by a valid exercise of sovereign power sufficient to convert its radical title to beneficial



Conclusion 285

ownership, the Crown’s radical title is not limited to unoccupied land: an appropriate exercise of sovereign power can also convert the Crown’s radical title to land which is occupied by native titleholders into beneficial ownership. Native title is, however, in a particularly vulnerable position because, not being an institution of the common law, the rule that where a subject is in possession when the Crown’s title accrues, the Crown’s title should appear of record does not apply to it – the Crown’s prerogative power to appropriate land from native titleholders and to unilaterally extinguish native title by inconsistent grant was exercisable without the necessity of an office of entitlement. Where, however, a subject acquires a common law title to land this rule would apply. Thus, where a subject is in possession under a common law title before the Crown’s beneficial title accrues, the Crown’s title is not to be presumed; the subject can demand that the Crown’s title be proved. Crucially, it will be seen in the next chapter that, as a result of the High Court’s restatement of Australian real property law, and independently of native title, ‘Aboriginal customary law’ can be a valid source of non-derivative common law title to land.

7 The Doctrine of Common Law Aboriginal Customary Title in Australia and Implications for South Africa1

T

HE EXAMINATION OF the law in Parts I, II and III has shown that the requirement for the Crown to exercise its sovereign power before its underlying radical title converts to full beneficial ownership in Australia is not limited to land subject to pre-existing native title. The Crown’s radical title does not, of itself, confer beneficial entitlement to the land to which it relates. As a concomitant of sovereignty, radical title is merely the sovereign’s power of alienation over the whole of the national territory: the right to acquire plenary property rights (which, in the case of land subject to native title, takes the form of an exclusive right of pre-emption) and the power to grant beneficial title to land, including land subject to native title. As the postulate of the doctrine of tenure, radical title is merely a nominal title which supports that doctrine. Until the Crown validly exercises its sovereign power to create interests in land in itself or others, neither the Crown nor any person claiming a derivative title from the Crown has any beneficial interest in the land. As a legal concept, radical title connotes a bare legal title sufficient to support the doctrine of tenure and the Crown’s right to acquire and confer title, but not title itself. The Crown’s sovereign power must be exercised before its radical title to land, the Crown’s ab initio title, converts into absolute beneficial ownership, the Crown’s pro tanto title. Although radical title is not a real title for property purposes – being more in the nature of a political notion and in that sense a legal fiction2 – rejection of the ‘feudal fiction’ of original Crown ownership in favour of the more limited ‘radical title fiction’ regardless of the demographics of a territory ensures that the Crown’s rights over land are no longer as fictional as under feudal theory. Because acknowledgment of the Crown’s radical title allowed (retrospective) judicial recognition of the fact that Australia was inhabited at settlement, the High Court in Mabo3 made a legal right, that of ‘native title holder’, available to Aboriginal people within Anglo-Australian property law.4 The Mabo Court also made it clear that acknow­ 1  Kent McNeil developed the concept of ‘Common Law Aboriginal Title’: K McNeil, Common Law Aboriginal Title (Oxford, Clarendon Press, 1989). See discussion in ch 3 text to n 326ff. 2   Wik Peoples v Queensland (1996) 187 CLR 1 (HCA) 234 (Kirby J). See also U Secher, A Conceptual Analysis of the Origins, Application and Implications of the Doctrine of Radical Title of the Crown in Australia: An Inhabited Settled Colony (DPhil thesis, University of New South Wales, 2003) ch 8 text to fn 81. 3   Mabo v Queensland (No 2) (1992) 175 CLR 1 (HCA). 4   V Kerruish and J Purdy, ‘He “Look” Honest – Big White Thief’ (1998) 4(1) Law Text Culture 146, 152–53. Although recognition of native title is a consequence of the ‘postulate of the doctrine of tenure’ limb of radical



Common Law Aboriginal Customary Title 287

ledgment of radical title allowed the Crown to unilaterally extinguish this right. PreMabo, however, it appeared certain that the effect of colonisation on pre-existing property rights had been resolved in favour of the doctrine of continuity, rather than the recognition doctrine.5 Thus, the scope of the Crown’s power to unilaterally extinguish native title in Australia contradicted the generally accepted position in other common law jurisdictions which recognise pre-existing property rights.6 In chapter three it was seen that this is because the High Court revisited the continuity versus recognition doctrine debate in the context of the inhabited settled colony of Australia.7 As a result of its reexamination of the consequences of the acquisition of sovereignty over Australia, the High Court replaced the three formerly distinct doctrines of reception, continuity and recognition with a modified doctrine of reception, which included the interrelated doctrines of tenure ad veritatem and continuity pro-tempore (a merged version of the continuity and recognition doctrines).8 Thus, although the feudal doctrine of tenure did not apply to create a tenurial relationship between the Crown and the Aboriginal occupiers, as a result of the doctrine of tenure ad veritatem and the ‘continuity’ limb of the doctrine of continuity pro-tempore, pre-existing property rights were accommodated within Australian land law. It is the High Court’s interpretation of the ‘recognition’ limb of the continuity pro-tempore doctrine that departs from the accepted position regarding extinguishment of pre-existing property rights. While recognition of pre-existing Aboriginal property rights in Australia presented the High Court with the opportunity to reconcile the effect of colonisation on pre-existing property rights in all inhabited colonies (irrespective of their colonial classification), the High Court held that the scope of the Crown’s prerogative power of extinguishment depended upon the constitutional status of a colony.9 In contradistinction to conquered/ ceded colonies where pre-existing rights are protected from the Crown’s prerogative irrespective of their source, the restraints on the Crown’s prerogative to grant land in inhabited settled colonies were held to apply only to interests deriving from Crown grant or otherwise secured by the common law.10 Thus, native title’s vulnerability to extinguishment by Crown grant flows from the fact that it is not a common law right.11 The important point is that both recognition and extinguishment of native title are the outcome of the modified doctrine of reception, pursuant to which settlement conferred a radical title on the Crown. The Crown’s radical title, therefore, provides a new basis for the system of land tenure in post-Mabo Australia. Crucially, this chapter shows that, in addition to native title, this regime can accommodate Aboriginal customary law

title, the Crown’s ability to unilaterally extinguish such rights is an incident of the ‘concomitant of sovereignty’ limb of radical title: see generally chs 3 and 4. 5   For a discussion of these two approaches see ch 3 text to n 112ff. 6   It has been seen that, in Australia, the sovereign has power to extinguish native title by inconsistent executive grant per se (without the need for legislative authority): ch 3 text to nn 187–203. 7   See ch 3 text to n 112ff. 8   See ch 3 text to nn 5ff, 191ff. 9   See ch 3 text to nn 197, 267ff. 10   See ch 3 text to nn 275–81, 285. cf the objections to this aspect of the Mabo High Court’s decision: ch 3 text to nn 283–95; ch 8 n 7. 11   Mabo (n 3) 61 (Brennan J, Mason CJ and McHugh J concurring). See also Fejo v Northern Territory [1998] HCA 58, (1998) 195 CLR 96 [44], [46] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Commonwealth v Yarmirr [2001] HCA 56, (2001) 208 CLR 1 [11] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

288  Common Law Aboriginal Customary Title as a source of (non-derivative) common law title to land:12 the doctrine of common law Aboriginal customary title. It is clear from Mabo13 and subsequent judicial decisions in the context of the Native Title Act 1993 (Cth)14 that native title has its origin in, and is given its content by, the traditional laws and customs of Aboriginal people.15 Indeed, customary law can be a good source of Aboriginal land rights in territories acquired by the Crown, whether conquered, ceded16 or settled,17 but Aboriginal laws and customs have never given rise to common law rights.18 Title established under the conventional doctrine of Aboriginal title – an original mode of acquiring title to land based on the fact of occupation at the time of colonisation applied by the courts in Canada and America19 – is a common law right. Nevertheless, and despite judicial acknowledgment that Aboriginal law should be taken into account in establishing and conceptualising conventional Aboriginal title, it will be seen in chapter eight that there has been a recent emphasis on translating Aboriginal customary land rights into rights ‘known’ to the common law.20 South African courts have refrained from deciding whether any doctrine of Aboriginal title applies in South Africa21 – where civil rather than common law principles govern property rights. Recently, however, the South African Constitutional Court recognised that Indigenous customary law interests in land must be ‘seen as an integral part of [South African] law’.22 Although the development of the common law by custom is a well-­ established process, when the Australian High Court in Fejo v Northern Territory23 rejected an argument that native title was analogous to rights recognised in English land law like rights of common or customary rights, the Court only distinguished common law rights which have their origins in actual or presumed grant; the Court failed to address common law rights which have their origins in custom independently of any grant. 12  This is consistent with GS Lester, The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument (DJuris thesis, York University, 1981). For a discussion of Lester’s thesis see ch 3 text to n 115ff. 13   Mabo (n 3) 15 (Mason CJ and McHugh J summarising the outcome of the case with the consent of all members of the Court), 58 (Brennan J), 87–88 (Deane and Gaudron JJ). Although it has been suggested that Brennan J also envisaged an alternative source of native title – exclusive occupation of land – see below nn 193, 235. 14   See, eg, Fejo (n 11) [46] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Yarmirr (n 11) [15] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Western Australia v Ward [2002] HCA 28, (2002) 213 CLR 1 [20] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58, (2002) 214 CLR 422 [74]–[76] (Gleeson CJ, Gummow and Hayne JJ). 15   Although complicated by the Treaty of Waitangi, Aboriginal land rights in New Zealand are also sourced in traditional laws and customs. The implications for New Zealand of recognising Aboriginal customary law as a source of common law title to land is, however, beyond the scope of this book. 16   See ch 3 text to n 229ff. 17   See McNeil, Common Law Aboriginal Title (n 1) 161 and references cited in fn 1. McNeil outlines a few instances of British settlements where local customary law has been applied to uphold the land rights of the indigenous inhabitants: ibid 184–91. 18   cf the position in conquered/ceded colonies where customary land rights are replaced by the introduced common law: ch 3 text to n 228. 19   The implications for Canada of recognising Aboriginal customary law as a source of common law title to land are examined in ch 8. The American jurisdiction is beyond the scope of this work. 20  See R v Marshall; R v Bernard 2005 SCC 43, [2005] 2 SCR 220; William v British Columbia 2012 BCCA 285, [2012] 3 CNLR 333. cf Delgamuukw v British Columbia [1997] 3 SCR 1010 (SCC). 21   See below n 351 and text; text to nn 373, 421. 22   Alexkor Ltd v The Richtersveld Community [2003] ZACC 18, 2004 (5) SA 460 [51]. Customary law has also been recognised as an independent source of legal norms in the South African Constitution: Constitution of the Republic of South Africa 1996, s 39(3). 23   Fejo (n 11) esp [53].



Aboriginal Customary Law 289

It will be seen that as a result of the High Court’s restatement of Australian property law, Aboriginal people can, independently of possible native title rights, establish common law title to land upon proof that they have a title by virtue of their own customary laws, whether the existence of such title arose before or after acquisition of sovereignty. That is, the doctrine of common law Aboriginal customary title has two limbs. Under the first limb, Aboriginal customary law rights to land acquired after the acquisition of sovereignty give rise to a common law title on the basis that Aboriginal customary rights analogous to incorporeal hereditaments become the local common law. The second limb, which is potentially more important, examines the question: before land is brought within the doctrine of tenure ad veritatem by valid post-sovereignty Crown grant, what law applies to the land? Under this limb, Aboriginal customary law rights to land acquired before the acquisition of sovereignty continue to apply and give rise to a common law title which is accommodated within the post-sovereignty legal regime in one of two ways: first, on the basis that a traditional exception to the feudal doctrine of tenure applies to land subject to pre-existing Aboriginal rights: tenure in ancient demesne, customary law pre-dating the tenurial scheme. Secondly, on the basis that English land law relating to pre-feudal landholding applies to land subject to pre-existing Aboriginal rights: folkland, an allodial system of customary landholding. A finding that ‘Aboriginal customary law’ can be a valid source of common law title to land in an inhabited settled colony has significant implications for the content, proof and protection of Aboriginal land rights. Furthermore, by examining the position in South Africa following Alexkor Ltd v The Richtersveld Community,24 it will be seen that the doctrine of common law Aboriginal customary title is not limited in its application to inhabited settled colonies, but also applies to ceded/conquered colonies. I  ABORIGINAL CUSTOMARY LAW: A SOURCE OF NON-DERIVATIVE COMMON LAW TITLE TO LAND

Post-Mabo, ‘the common law recognises a set of rights coming from Aboriginal law’, but ‘anglo-Australian law does not recognise aboriginal law as law’.25 This inherent limitation in the native title context was emphasised by the High Court in Fejo: Native title has its origins in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law. There is, therefore, an intersection of traditional laws and customs with the common law. The underlying existence of the traditional laws and customs is a necessary pre-requisite for native title but their existence is not a sufficient basis for recognising native title.26

  Above n 22.   Kerruish and Purdy, ‘He “Look” Honest’ (n 4) 153. See also S Young, The Trouble with Tradition: Native Title and Cultural Change (Sydney, Federation Press, 2008) 360 fn 48: ‘Laws and customs that are seen to underpin native title interests appear to occupy a legal ‘twilight zone’. They are understood to be evidence of, and the original and continuing source of, recognisable rights and interests – and may be protected as an incident of the protection of those rights and interests. Yet they appear to have no further legal existence or signific­ance, except once again via ad hoc legislative and administrative tolerance’. 26   Fejo (n 11) [46] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). 24 25

290  Common Law Aboriginal Customary Title The expression ‘traditional laws and customs’, which was also heavily relied upon in Mabo, is not without relevance in establishing Aboriginal customary law as a source of non-derivative common law title to land. In the context of the theory advanced, the expression is ‘taken to be an inclusive statement consistent with the expression “practices, traditions and customs”’.27 Because the expression necessarily implies that it should be understood from the Aboriginal perspective, the words are not constrained by jurisprudential concepts. ‘Law in Aboriginal terms is an aggregation of traditional values, rules, beliefs and practices derived from Aboriginal past’.28 Furthermore, the distinction between Aboriginal law and Aboriginal custom, if there is one, is ‘not readily discernible’ nor significant from a post-sovereignty perspective.29 The terms ‘custom’ and ‘law’ (and their derivatives) are, therefore, used interchangeably in the Aboriginal context. Returning to the point emphasised in Fejo, while customary law is an element of proof in native title claims, it is merely a question of fact rather than enforceable substantive law.30 It is only after consideration of further factors alien to customary law that any common law recognition is given to native title.31 Consequently, while native title is grounded in Aboriginal custom, the form and content of native title has been moulded by the common law courts.32 Initial recognition of native title is conditional on the specific customs upon which the title is based not infringing certain core values33 or ‘fractur[ing] a skeletal 27   Ward v Western Australia (1998) 159 ALR 483 (FCA) 504 (Lee J). See also Wik (n 2) 126 (Toohey J, referring to ‘traditions, customs and practices’); R v Van der Peet [1996] 2 SCR 507 (SCC) 548 (Lamer CJ); RH Bartlett, ‘The Source, Content and Proof of Native Title at Common Law’ in RH Bartlett (ed), Resource Development and Aboriginal Land Rights in Australia (Perth, The Centre for Commercial and Resources Law, University of Western Australia and Murdoch University, 1993) 35, 41; RH Bartlett, Native Title in Australia, 2nd edn (Sydney, Butterworths, 2004) para 10.37. cf Young, The Trouble with Tradition (n 25) 240–41, 345–46. 28   Ward v Western Australia (n 27) 504 (Lee J). 29   Yarmirr v Northern Territory (No 2) (1998) 82 FCR 533 (FCA) 570 (Olney J). And if there is a distinction, the decision in Mabo has shown that a title akin to ownership (an entitlement as against the whole world to possession, occupation, use and enjoyment of land) can be based virtually entirely on customs: Mabo (n 3) 18 (Brennan J); see also below n 235. 30  Recognition of Aboriginal law generally is reviewed by J McKenzie, ‘Recognition of Aboriginal Customary Law’ (1993) Law Society Journal 37; HA Amankwah, ‘Post-Mabo: The Prospect of the Recognition of a Regime of Customary (Indigenous) Law in Australia’ (1994) 18 University of Queensland Law Journal 15; R McLaughlin, ‘Some Problems and Issues in the Recognition of Indigenous Customary Law’ (1996) 3(82) Aboriginal Law Bulletin 4; Australian Law Reform Commission, The Recognition of Aboriginal Customary Law, Report No 31, 3 vols (Canberra, Australian Government Publishing Service, 1986); N Peterson and B Rigsby (eds), Customary Marine Tenure in Australia (Sydney, Oceania Publications: University of Sydney, 1998). See also D Sweeney, ‘Fishing, Hunting and Gathering Rights of Aboriginal Peoples in Australia’ (1993) 16 University of New South Wales Law Journal 9. 31   ‘In the institutional context of legal practice, . . . methods of fact finding or proof are tied in to practices and procedures of litigation and regulated by the law of evidence. Furthermore, which facts are relevant is determined by rules or propositions of law. Practically then law takes control of fact, or to put that another way, . . . law takes priority over fact. The law/fact relation will still be an interactive one, but the relation is lopsided, weighted on the side of law’: Kerruish and Purdy (n 4) 148–49. See also the Native Title Act 1993 (Cth), s 223. 32   In particular see Western Australia v Ward [2000] FCA 191, (2000) 99 FCR 316 (FCAFC) [107] (Beaumont and von Doussa JJ); K Howden, ‘The Common Law Doctrine of Extinguishment – More than a Pragmatic Compromise’ (2001) 8 Australian Property Law Journal 206, 217. 33   Including not being ‘repugnant to natural justice, equity and good conscience’: Mabo (n 3) 61 (Brennan J). In this context, Brennan J referred (at 59) to the Case of Tanistry (1608) Davis 28, 80 ER 516 (IrKB) where the Court declined to give effect to the Irish custom of tanistry in part because it was founded in violence – this case is discussed in a different context in ch 3 text to n 247ff. See also A Lokan, ‘From Recognition to Reconciliation: The Functions of Aboriginal Rights Law’ (1999) 23 Melbourne University Law Review 65, 92. Other examples where courts have declined to enforce customary law on repugnancy grounds in the West African context are described by Amankwah, ‘Post-Mabo’ (n 30) 26–27.



First Limb of Common Law Aboriginal Customary Title 291

principle’ of the Australian legal system.34 Furthermore, native title is the continuation of a title held before sovereignty (and thus before the introduction of the common law in Australia). In Mabo, however, two alternative arguments were advanced to support the rights of the Meriam people to their traditional land: One argument raised the presumption of a Crown grant arising from the Meriam people’s possession of the Murray Islands from a time before annexation; another was the existence of a title arising after annexation in accordance with a supposed local legal custom under the common law whereby the Meriam people were said to be entitled to possess the Murray Islands.35 (emphasis added)

It will be seen that recognition of rights to land arising before as well as after sovereignty is crucial in the context of acknowledging the historical reality of Aboriginal land rights. And while Aboriginal customary rights acquired pre-sovereignty and postsovereignty give rise to title under the respective limbs of the doctrine of common law Aboriginal customary title, post-sovereignty Aboriginal rights are recognised under both limbs. Moreover, both limbs confer common law title to land which has its origins in Aboriginal laws/customs independently of any Crown grant. II  FIRST LIMB OF THE DOCTRINE OF COMMON LAW ABORIGINAL CUSTOMARY TITLE: TITLE ARISING AFTER ACQUISITION OF SOVEREIGNTY

Because the Mabo High Court held that (non-common law) native title survived the Crown’s acquisition of sovereignty, the alternative ‘after annexation’ ownership by ‘custom’ basis for establishing common law title to land36 was not examined. Thus, while Brennan J observed that ‘[t]here are substantial difficulties in the way of accepting [this argument]’, it was ‘unnecessary to pursue them’.37 Subsequently in Fejo it was sought to establish that native title was more than a mere right recognised by the common law; in particular it was sought to draw some analogy with rights recognised in English land law, like rights of common38 or customary rights.39 The High Court, however, responded: 34   Mabo (n 3) 30, 43 45 (Brennan J). See also below n 75. In Yarmirr v Northern Territory (No 2) (n 29) Olney J found that it would ‘fracture a skeletal principle’ of the common law to recognise exclusive native title rights in the seas inconsistent with the public rights to fish and navigate, enshrined in the Magna Carta. See also Commonwealth v Yarmirr [1999] FCA 1668, (1999) 101 FCR 171 (FCAFC) [293], [572] (Merkel J); Yarmirr (n 11) [97]–[98] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Ward (n 14) [388], [468] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); cf anaylsis in ch 5. In Bulun Bulun v R & T Textiles Pty Ltd (1998) 86 FCR 244 (FCA) 256 it was suggested that incorporating cultural knowledge into native title would fracture a skeletal principle of Australian law by disregarding the ‘inseparable nature of ownership in land and ownership in artistic works’. The joint majority judgment of the High Court in Ward (n 14) [59] accepted this approach, concluding that native title did not include intellectual property rights because this would fracture skeletal principals of the common law; cf Kirby J who did not accept the suggestion: ‘If this cultural knowledge, as exhibited in ceremony, performance, artistic creation and narrative, is inherently related to land according to Aboriginal beliefs, it follows logically that the right to protect such knowledge is therefore related to the land [as part of native title]’: ibid [580]. He added that ‘skeletal principles’ should not be regarded as immutable, especially when they offend present-day notions of justice and human rights: ibid [585]. 35   Mabo (n 3) 57 (Brennan J). 36   See quote to n 35. 37   Mabo (n 3) 57. 38   Rights of common are an example of a profit a prendre, one of the principal incorporeal hereditaments: RE Megarry and HWR Wade, The Law of Real Property, 5th edn (London, Stevens & Sons Ltd, 1984) 815. 39   Discussed below text to nn 53–90. See also Megarry and Wade, The Law of Real Property (n 38) 849–50, 853–54.

292  Common Law Aboriginal Customary Title [R]eference to those rights in the present context is misplaced. They are creatures of the common law finding their origins in grant or presumed grant. And the rights that are now in issue – native title rights – are not creatures of the common law. That a right owing its existence to one system of law (a right of freehold tenure) may be subject to other rights created by that same legal system (such as customary rights or rights of common) is not surprising. But very different considerations arise when there is an intersection between rights created by statute and rights that owe their origin to a different body of law and traditions.40

While distinguishing common law rights which find their origins in actual or presumed grant, the Court failed to consider common law rights which have their origins in custom independently of grant.41 With respect, the Fejo High Court failed to make a critical three-fold distinction: between i) incorporeal hereditaments proper, for example easements, ii) customary rights in the nature of incorporeal hereditaments and iii) customary rights pre-dating sovereignty.42 Moreover, it will be seen that under the first limb of the doctrine of common law Aboriginal customary title (‘first limb’), common law rights which have their origins in post-sovereignty Aboriginal customary rights analogous to incorporeal hereditaments overcome the fundamental objection to recognising Aboriginal rights to land created after sovereignty identified by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria.43 A  Incorporeal Rights Proper v Analogous Customary Rights Upon settlement of the various Australian States, the doctrine of tenure ad veritatem applied.44 While this doctrine is adapted from the English doctrine of tenure, the English doctrine was not received. There was, however, also a mass of English law relating to proprietary rights in land, including incorporeal hereditaments, which was received and applied. Although incorporeal hereditaments are mere rights of property, rather than physical objects, their distinguishing feature is that the law of real property applies to them.45 Thus, there may coincide with an estate in fee simple various legal rights belonging to others affecting the use of land held in fee simple;46 easements represent a typical example.47 Nevertheless, the essence of the feudal tenurial system in which the rules relating to incorporeal hereditaments were conceived is that rights in land find their origins in grant (actual or presumed). One of the essential characteristics of an easement properly so called, therefore, is that it must be capable of grant. However, even in the context of the

40   Fejo (n 11) [53] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) citing Gummow J in Wik (n 2) 177–78. See also Fejo (n 11) [107] where Kirby J observed that there may coincide with an estate in fee simple various legal rights belonging to others, eg easements, affecting the use of land held in fee simple. However, his Honour rejected the submission that native title should be regarded as analogous with such rights so that native title might, at least sometimes, survive where not inconsistent with the full exercise of fee simple rights. See also discussion of Fejo in ch 4 text to nn 257–63. 41   See Megarry and Wade (n 38) esp 849–50. 42   Customary rights pre-dating sovereignty will be considered below text following n 124. 43   Yorta Yorta (n 14) [43] (Gleeson CJ, Gummow and Hayne JJ): see below text to n 116. 44   See ch 3 text to n 4ff. 45   Megarry and Wade (n 38) 813. 46  See Fejo (n 11) [107] (Kirby J). 47   On easements being recognised as incorporeal hereditaments see Megarry and Wade (n 38) 834.



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feudal tenurial system, customary rights in the nature of easements exist independently of any grant. Furthermore, because easements properly so called must be appurtenant to a dominant tenement they cannot exist in gross, whereas customary rights in the nature of easements do exist in gross, being exercisable by all who are included within the custom independently of ownership of a dominant tenement.48 The fundamental distinction between incorporeal hereditaments proper and customary rights in the nature of incorporeal hereditaments is explained by the manner in which incorporeal rights can be acquired. While English law knows no positive prescription for corporeal hereditaments,49 the law merely providing a statute of limitations, in the case of certain kinds of incorporeal hereditaments it allows that length of user confers a positive title.50 Prescription is, however, only one way of establishing entitlement to an incorporeal hereditament: A man who charged his land with rent, or who gave a stranger a right of common, or who gave a neighbour a right of way, subjected his land to a special law in favour of the grantee. Such grantee, if his right were questioned, must show that he was entitled; and this he could only do in three ways. He might either produce the deed, the ‘speciality’, by which this special law was made; or he could prescribe, i.e. show that he had enjoyed the right from time immemorial; or he could show that in the district in which the land was situated there was a special custom which entitled all persons in his position to the right claimed.51

The claimant succeeded in all three cases because he was able to set up a special law applicable to his case. The deed was obviously conclusive that a grant had in fact been made. User for the requisite period was equally conclusive evidence of a grant made before the time of legal memory; in such a case a grant was presumed from lapse of time

48   ibid 849. An example of a customary right analogous to an easement, rather than an easement proper, which was upheld as a valid custom is provided by Mercer v Denne [1904] 2 Ch 534 (Ch D), affd [1905] 2 Ch 538 (CA). In this case it was agreed that the custom for fishermen to dry their nets upon the land of another was a customary right analogous to an easement rather than an easement proper. Upjohn KC and RJ Parker for the plaintiffs argued that ‘though the right is claimed by way of custom, yet it is in the nature of an easement in gross, and falls within s 2 of the Prescription Act’: ibid 536. However, Eve KC, Gatey and Stuart Moore, for the defendant, successfully argued that ‘[t]he word “custom” in s 2 of the Prescription Act does not extend to such a right as is claimed in this action. It is not an easement. . . . There must be a dominant and servient tenement to support an easement under s 2 of the Act, and there is no such thing as an easement in gross’: ibid 537. Nevertheless, the confused view that customary rights are essentially similar to true easements and that, therefore, easements can, like customary rights, exist in gross is supported by Blackstone: 2 Bl Comm 35–36. When dealing with rights of way, Blackstone suggested that a way may be either granted to an individual or attached to a dominant tenement. See also dicta in Dovaston v Payne (1795) 2 H Bl 527, 126 ER 684 (CP); Mounsey v Ismay (1865) 3 H & Co 486, 159 ER 621 (Ex). Customary rights differ from public rights in that they are exercisable only by members of some local community and not by members of the public generally: Megarry and Wade (n 38) 849; Manning v Wasdale (1836) 5 Ad & E 758, 111 ER 1353 (KB) (parish); Race v Ward (1855) 4 El & Bl 702, 119 ER 259 (KB) (town); New Windsor Corp v Mellor [1975] Ch 380 (CA Civ) (town). ‘A custom really amounts to a special local law, a local variation of the common law. The common law recognises such variations only if they are ancient, certain, reasonable and continuous’: Megarry and Wade (n 38) 850. See also below text to n 53ff. 49   WS Holdsworth, A History of English Law, vol 3, 3rd edn, rewritten (London, Methuen & Co Ltd, 1923) 166. 50  ibid. 51   ibid 167. It must be shown that the incorporeal hereditament was enjoyed from before the time of legal memory; the time of legal memory being fixed at the year 1189 by analogy to the period of limitation fixed for the writ of right by the statute of 1275: WS Holdsworth, An Historical Introduction to the Land Law (London, OUP, 1927) 279; WS Holdsworth, A History of English Law, vol 7, 2nd edn (London, Methuen & Co Ltd, 1937) 343.

294  Common Law Aboriginal Customary Title in favour of an individual.52 More importantly, ‘[c]ustom, if proved, set up a special local law for the district which, if reasonable, might supersede the common law’.53 Crucially, therefore, in the context of land, a legal right derived from local custom is distinguished from other legal rights: it is not derived from grant or presumed grant; it is operative per se as a binding rule of common law in a particular locality, independently of any agreement on the part of those subject to it.54 In the words of Blackstone: The municipal law of England . . . may with sufficient propriety be divided into two kinds; the lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law. The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom55 (bold emphasis added)

This doctrine, judicially recognised in the law reports of the reigns of Henry IV and Edward IV,56 has continued to be recognised in much later times including after the High Court’s decision in Mabo.57 Although the modern general law of both Australia and 52   ‘[B]ecause no evidence from before the time of legal memory could be of any avail to show that the user was wrongful’: Holdsworth, 3 History of English Law (n 49) 168. The conception of prescription as a personal law in favour of the person seised of a right from before the time of legal memory prevailed during the Middle Ages: ibid 168–69. By the end of the medieval period, however, the theory upon which prescription was allowed to operate had changed. It came to be thought that because the incorporeal hereditaments which could be prescribed for were normally created by a deed of grant, immemorial user was conclusive evidence of a grant made before the time of legal memory: ibid 169–70. For a discussion of the different consequences ensuing from this new theory: ibid 170–71. 53   ibid 168. See also Megarry and Wade (n 38) 850; below authorities cited in n 74. 54  See Case of Tanistry (1608) Davis 28, 32; 80 ER 516, 520 (IrKB). For the English translation see J Davies, A Report of Cases and Matters in Law, Resolved and Adjudged in the King’s Courts in Ireland, 4th edn (Dublin, Printed for Sarah Cotter under Dick’s Coffee-House, 1762) 78, 87: ‘a custom, in the intendment of law, is such an usage as hath obtain’d the force of law, and is in truth a binding law to such particular place, persons, or things as it concerns; and such custom cannot be established by the king’s grant . . . nor by act of parliament, but it is jus non scriptum’. See also below n 110; J Salmond, Jurisprudence, 7th edn (London, Sweet & Maxwell Ltd, 1924) 210–11. Salmond observed that all custom which has the force of law is of two kinds: legal and conventional. They are essentially distinct in their mode of operation. Legal custom is operative per se as a binding rule of law, independently of any agreement on the part of those subject to it. Conventional custom, however, operates only directly through the medium of agreements whereby it is accepted and adopted in individual instances as law between the parties: ibid. Legal custom is itself of two kinds: local and general. Local custom prevails in a particular locality only and constitutes a source of law for that place only. General custom prevails and has force as law throughout the realm: ibid 211, 216. ‘The term custom in its narrowest sense means local custom exclusively. The general custom of the realm is distinguished from custom in this sense as the common law itself’: ibid 216. For examples of customary rights analogous to easements see: Abbot v Weekly (1664) 1 Lev 176, 83 ER 357 (KB) (customary right to dance upon a particular close belonging to a private owner); Race v Ward (n 48) (customary right to enter another’s land and take water from a spring); Mercer v Denne [1905] 2 Ch 538 (CA) (customary right of fishermen of a parish to spread and dry their nets on the land of a private owner); Tyson v Smith (1838) 9 Ad & E 406, 112 ER 1265 (Ex Ch) (customary right of victuallers to erect booths on the land of another at the time of a particular fair); Mounsey v Ismay (n 48) (customary right entitling freemen of a city to hold horse races on land belonging to a private owner); Hall v Nottingham (1875–76) LR 1 Ex D 1 (Div Ct) (customary right of the inhabitants of a parish to erect a maypole and dance around it on the land of a private owner); Brocklebank v Thompson [1903] 2 Ch 344 (Ch D) (customary right of way to a parish church enjoyed by parishioners). 55   1 Bl Comm 63. See also Co Litt 110 b. 56   In the law reports during these reigns it is said ‘The common law of the realm is the common custom of the realm’: Beaulieu v Finglam (1401) YB 2 Hen IV, RS p 18; ‘A custom which runs through the whole land is the common law’: Anonymous (1468) YB 8 Edw IV, RS p 18, 19 (Littleton JCP) (trespass for digging in plaintiff’s land). 57  In R v Suffolk CC, ex p Steed (1998) 75 P & CR 102 (CA) 105–06, 115 Pill LJ (with whom the other members of the Court of Appeal agreed) recognised in modern times the doctrine as stated in Hammerton v Honey (1876) 24 WR 603 (Ch) and Mercer v Denne (n 54). See Hammerton v Honey, where Jessel MR enunciated the



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England has its source in legislation and precedent and therefore consists of enacted law and case law, custom (at least local custom) has not lost its law-making efficacy and is still to be accounted one of the sources of Australian and English law.58 Indeed, in the context of recognising law derived from Aboriginal custom, Amankwah has observed: It is strange that people whose legal tradition is steeped in the common law should forget that as was the case with the ‘primitive’ stage of the common law which was based on ‘local customs’ and gradually metamorphised into the ‘common law’ only after consistent application of the principles and doctrines throughout the realm by the royal itinerant justices, so also customary law should be seen first as the initial stage of a system of law with potential for development and expansion.59

The development of the common law by custom is an established process with its own set of legal rules. A custom exists in a particular locality only in respect of some particular matter or matters; other matters within the same locality are governed by the general common law.60 As a corollary, the land in a particular place and the inhabitants in respect of it may be charged by a custom for matters within that place, but the custom will not apply to matters outside that place.61 A custom cannot extend to the whole realm, nor can it embrace every member of the public, for, in either case, it would amount to the common law of the land.62

classic statement: ‘[a] custom [is] local common law. It is common law because it is not statute law; it is local law because it is the law of a particular place as distinguished from the general common law. . . . Local common law, like general common law, is the law of the country as it existed for the time of legal memory’; Mercer v Denne (n 54) 582 where Stirling LJ stated: ‘[Custom] is truly described as a local law’. In YarmirrFC (n 34) [563] Merkel J (dissenting) referred to the doctrine as stated by Tindal CJ in Lockwood v Wood (1844) 6 QB 50, 64: an established custom ‘is, in effect, the common law within that place to which it extends, though contrary to the general law of the realm’. See also Blundell v Catterall (1821) 5 B & Ald 268, 279; 106 ER 1190, 1194 (KB) (Best J): ‘[t]he practice of a particular place is called a custom. A general immemorial practice through the realm is the common law’; Veley v Burder (1841) 12 Ad & E 265, 302; 113 ER 813, 827 (Ex Ch) (Tindal CJ): ‘a custom, existing beyond the time of legal memory, and extending over the whole realm, is no other than the common law of England’. In Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 (BCCA) 651 the doctrine was also judicially recognised by Lambert JA (dissenting): ‘In modern times, custom still forms a part of the common law. It is, in effect, a local common law. And it is recognized and protected by the general principles of the common law towards customary law’. 58   Indeed, laws derived from local customs from time immemorial have been upheld as recently as 1975: New Windsor Corp v Mellor (n 48), cited in R v Secretary of State for Foreign and Commonwealth Affairs, ex p Indian Association of Alberta [1982] QB 892 (CA) 910, and Oxfordshire CC v Oxford City Council [2005] EWCA Civ 175, [2006] Ch 43 (CA) [28]. See also DelgamuukwCA (n 57) 651, 659 (Lambert JA). ‘Since the general custom of the realm must, like local custom, be of immemorial antiquity in order to constitute legal custom having in itself the force of law’ all general and immemorial customs have arguably ‘received judicial notice and application by the courts of law, and have therefore been transformed into case law’: Salmond, Jurisprudence (n 54) 231. It follows that general custom is no longer a living and operative source of law: ibid. 59   Amankwah (n 30) 32. On the heresy of establishing a plural legal system, Amankwah refers generally to WS Holdsworth, A History of English Law (London, Methuen & Co Ltd and Sweet & Maxwell Ltd, 1978). 60   Halsbury’s Laws (4th edn, 1973–87) vol 12, para 401. 61   R v Ecclesfield (Inhabitants) (1818) 1 B & Ald 348, 360; 106 ER 128, 132–33 (KB) (Lord Ellenborough LJ); Dawson v Willoughby (Surveyor of Highways) (1864) 5 B & S 920, 122 ER 1073 (KB); R v Rollett (1875) LR 10 QB 469; R v Inhabitants of the Township of Ardsley (1878) 3 QBD 255; Halsbury’s Laws (4th edn, 1973–87) vol 12, para 402. 62   Earl of Coventry v Willes (1863) 12 WR 127 (QB) 128 (Cockburn CJ); Gillford v Lord Yarborough (1828) 5 Bing 163, 164; 130 ER 1023, 1023–24 (HL); R v Rollett (n 61); Halsbury’s Laws (4th edn, 1973–87) vol 12, para 402. See also Halsbury’s Laws (4th edn, 1973–87) vol 12, para 416. Although a custom which relates to the person or goods does not bind the Crown, we are concerned with customs relating to land: Halsbury’s Laws (4th edn, 1973–87) vol 12, para 402; Halsbury’s Laws (4th edn, 1973–87) vol 8, para 898.

296  Common Law Aboriginal Customary Title i  Proof of Customary Rights: Local Common Law In order for a local custom to be valid and operative as a source of law, it must conform to certain requirements laid down by the law. The four essential requirements are that the custom must be: immemorial; reasonable; certain in respect of its nature generally, as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect; and have continued without interruption since its immemorial origin.63 These characteristics are the necessary corollaries of the definition of a custom as being local common law and they serve a practical purpose as rules of evidence when the existence of a custom is to be established or refuted.64 It must be shown that a custom was ‘ancient’; that it existed from ‘time immemorial’. In England, its enjoyment had to date back to 1189, the year Richard I became King.65 Although this date is considered the beginning of legal memory in England, since the common law was introduced in Australia upon acquisition of sovereignty in 1788, ‘a rule presuming enjoyment since 1189 was clearly not appropriate’.66 The beginning of legal memory in Australia can, therefore, be traced back to acquisition of sovereignty. Furthermore, since it was virtually impossible to prove a custom from the beginning of legal memory in England (1189), judges determined that evidence of a custom existing as far back as living witnesses could remember raised a presumption that the custom existed in 1189, which had to be rebutted by anyone disputing it.67 Ancient origin may also be presumed if there has been long enjoyment and there is no proof of a later origin.68 It will be seen that comparable presumptions have been applied to proof of Aboriginal customs in the context of native title claims in Australia.69 A custom is not unreasonable because it is prejudicial to the interests of an individual, provided it is for the benefit of the community at large.70 Customs have been held reason63   Tyson v Smith (1838) 9 Ad & E 406, 421; 112 ER 1265, 1271 (Ex Ch) (Tindal CJ); Egerton v Harding [1974] 3 All ER 689 (CA) 692 (Scarman LJ delivering the judgment of the Court); Halsbury’s Laws (4th edn, 1973–87) vol 12, paras 406, 407–19. The law as to custom is well summarised by Jessel MR in Hammerton v Honey (n 57). Note that Salmond (n 54) 217–21 suggests that in addition to being immemorial and reasonable, a custom must also conform with statute law and have been observed as of right (as opposed to a mere voluntary practice). 64   Hammerton v Honey (n 57); Halsbury’s Laws (4th edn, 1973–87) vol 12, para 406. 65   Note that this is some 123 years after acquisition of sovereignty by Conquest in 1066. As to how the time for the commencement of legal memory became fixed see Angus v Dalton (1877) 3 QBD 85 (Div Ct) 103, 104 (Cockburn CJ). By an analogical extension of the rule of limitation imposed on actions for the recovery of land by the Statute of Westminster passed in the year 1275, it became established principle that the time of memory reached back as far as the reign of Richard I and no further. See also above n 51. 66   P Butt, Land Law, 5th edn (Sydney, Lawbook Co, 2006) para 1667. The common law was not received in England in 1066; rather it was developed by the centralised courts which the Normans established post-Conquest. 67   See, eg, Jenkins v Harvey (1835) 1 CM & R 877, 894; 149 ER 1336, 1342–43 (Ex); Bastard v Smith (1837) 2 M & Rob 129, 136; 174 ER 238, 240 (Exeter); Bryant v Foot (1867–68) L.R 3 QB 497 (Ex Ch); Hammerton v Honey (n 57) 604; Angus v Dalton (n 65) 104; Mercer v Denne (n 48). 68   Megarry and Wade (n 38) 850; Simpson v Wells (1871–72) LR 7 QB 214 (QBD); Mercer v Denne (n 48). In R v Joliffe (1823) 2 B & C 54, 107 ER 303 (KB) it was held that slight evidence of custom – ‘regular usage for 20 years’ – if uncontradicted is proof of immemorial usage: see esp 2 B & C 54, 59; 107 ER 303, 305 (Abbott CJ). 69   See below text to n 266ff. 70   Tyson v Smith (1838) 9 Ad & E 406, 421; 112 ER 1265, 1271 (Ex Ch) (Tindal CJ); Case Tanistry (1608) Davis 28, 32; 80 ER 516, 520 (IrKB); English translation (n 54) 88–89; Halsbury’s Laws (4th edn, 1973–87) vol 12, para 412. In Tyson v Smith (1838) 9 Ad & E 406, 421–22; 112 ER 1265, 1271 (Ex Ch) Tindal CJ stated: ‘Nor is a custom unreasonable because it is prejudicial to the interests of a private man, if it be for the benefit of the commonwealth, as the custom to turn the plough upon the headland of another, in favour of husbandry, or to dry nets on the land of another, in favour of fishing and for the benefit of navigation’. He then added: ‘But, on the other hand, a custom that is contrary to the public good, or injurious or prejudicial to the many, and benefi-



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able on the ground that they confer a benefit on a large class of the community71 and do not unduly or unjustly restrict the rights of the public or individuals.72 It has, however, been held that a ‘custom may virtually deprive the owner of the land of any benefit of it: because he cannot use it in any way so as to hinder the [inhabitants of a locality from exercising the custom]’.73 Importantly, since customs generally involve some inconsistency with the rules of the common law, a custom is not unreasonable merely because it is contrary to a particular maxim or rule of the common law.74 This constitutes a fundamental departure from cial only to some particular person’, is not reasonable (see also Case of Tanistry (1608) Davis 28, 32–33; 80 ER 516, 520–21 (IrKB); English translation (n 54) 89–90). In the subsequent case of Lockwood v Wood (1844) 6 QB 50, 64; 115 ER 19, 25 (Ex Ch) Tindal CJ merely observed that ‘a custom for all fishermen within a certain district to dry their nets upon the land of another might well be a good custom’. Referring to Tyson v Smith, Stirling LJ in Mercer v Denne (n 54) 581 commented that ‘the ground on which the custom to dry nets in the strict sense of the word has been upheld is that it is in favour of “fishing and navigation”’. In Tyson v Smith (1838) 9 Ad & E 406, 421–22; 112 ER 1265, 1271–72 (Ex Ch) it was held that a custom for every liege subject being a victualler to erect a booth on the waste of the manor on which certain fairs were held was for the public good as it was ‘in favour of the many; and the only party against whom it is set up, and by whom it is now opposed, is the lord of the manor’. A fair is treated as ‘a matter of public convenience; and the reasons for so considering it are also entirely of a public nature’: Elwood v Bullock (1844) 6 QB 383, 411; 115 ER 147, 157. Thus, it appears that Tindal CJ’s reference to ‘the benefit of the commonwealth’ in Tyson v Smith is interchangeable with the ‘benefit of the public’. Moreover, it appears that ‘the benefit of the public’ includes ‘the benefit of a large class of the community’: in Abbot v Weekly (1664) 1 Lev 176, 177; 83 ER 357, 357 (KB) a custom for all the inhabitants of a vill to dance on another’s ground at all times of the year was held to be reasonable as ‘it is necessary for inhabitants to have their recreation’. This was followed in Hall v Nottingham (n 54) 3, 4; Fitch v Rawling (1795) 2 H Bl 393, 398; 126 ER 614, 616 (CP) (Buller J, with whom the other members of the Court agreed) where it was held that since the necessity for inhabitants to have their recreation is a matter of law, ‘precedents which state such customs to be for either the health or recreation of the inhabitants’ are not required. See also New Windsor Corp v Mellor (n 48) and below text to n 73. 71   A ‘large class of the community’ is distinguished from the inhabitants of the whole realm: eg, a custom comprehending every liege subject exercising the trade of a victualler being in a parish during certain fairs as opposed to one comprehending all the liege subjects of the Crown being in a parish at any time (cf Tyson v Smith (1838) 9 Ad & E 406, 112 ER 1265 (Ex Ch) and Fitch v Rawling (1795) 2 H Bl 393, 126 ER 614 (CP)); a custom comprehending ‘all the inhabitants’ of a particular locality or localities as opposed to one comprehending ‘all persons for the time being’ being in a particular locality: Fitch v Rawling (1795) 2 H Bl 393, 395; 126 ER 614, 615 (CP). See, however, the overlap between what is for the benefit of ‘the community at large’ and ‘a large class of the community’ discussed above n 70. 72   Tyson v Smith (1838) 9 Ad & E 406, 421–25; 112 ER 1265, 1271–73 (Ex Ch) (Tindal CJ); Elwood v Bullock (n 70); Rogers v Brenton (1847) 10 QB 26, 116 ER 10; Mercer v Denne (n 54). See also Hill v Hanks (1614) 2 Bulst 201, 80 ER 1066 (KB); Hill and Bunning’s Case (1660) 1 Sid 17, 18; 82 ER 943, 944 (KB); Simpson v Bithwood (1691) 3 Lev 307, 308; 83 ER 703, 703 (KB); Gard v Callard (1817) 6 M & S 69, 105 ER 1169 (KB); Halsbury’s Laws (4th edn, 1973–87) vol 12, para 412. As a corollary, an alleged custom has been held unreasonable on the ground that it would entail unnecessary expense or throw an unjust or disproportionate burden on some individuals for the benefit of others: Wolstanton Ltd v Newcastle-under-Lyme Corp [1940] AC 860 (HL); Barker v Cocker (1620) Hob 329, 80 ER 471 (KB); Coriton v Lithby (1670) 1 Vent 167, 86 ER 114 (KB); Taylor v Scott (1729) Fitz-G 55, 94 ER 651 (KB); Wakefield v Duke of Buccleuch (1869–70) LR 4 HL 377 (HL) 399; Wilkes v Broadbent (1745) 2 Stra 1224, 93 ER 1146 (KB); Rogers v Taylor (1857) 1 H & N 706, 156 ER 1385 (Ex); Blackett v Bradley (1862) 1 B & S 940, 121 ER 963 (KB); Halsbury’s Laws (4th edn, 1973–87) vol 12, para 413. An alleged custom has also been held unreasonable on the ground that it would destroy the subject matter of the right: Clayton v Corby (1843) 5 QB 415, 114 ER 1306; Race v Ward (n 48); Attorney-General v Mathias (1858) 4 K & J 579, 70 ER 241 (V-C Ct); Payne v Ecclesiastical Commissioners (1913) 30 TLR 167; Halsbury’s Laws (4th edn, 1973–87) vol 12, para 413. For this reason, a profit a prendre cannot ordinarily be acquired by custom: ibid. 73   New Windsor Corp v Mellor (n 48) 387 (Lord Denning MR with whom the other members of the Court of Appeal agreed) – a custom for the inhabitants of New Windsor to use land owned by another for public recreation – discussed below n 80; see also Hall v Nottingham (n 54) 3. 74   ‘A custom which has existed from time immemorial without interruption within a certain place, and which is certain and reasonable in itself, obtains the force of a law, and is, in effect, the common law within that place to which it extends, though contrary to the general law of the realm’: Lockwood v Wood (1844) 6 QB 50, 64; 115 ER 19, 24–25 (Ex Ch) (Tindal CJ); Mercer v Denne (n 48) 551 (Farwell J adopting Tindal CJ’s dicta in Lockwood v Wood); Tyson v Smith (1838) 9 Ad & E 406, 421; 112 ER 1265, 1271 (Ex Ch) (Tindal CJ); Halsbury’s Laws (4th edn, 1973–87) vol 12, para 412. A custom must not, however, be contrary to an Act of

298  Common Law Aboriginal Customary Title recognition of native title which, it has been seen, is conditional on specific customs not ‘fracturing’ ‘a skeletal principle’ of the Australian legal system.75 It is also not a fatal objection that a custom has changed with the times: ‘Custom may evolve and be modified’.76 Both the ‘nature of the right enjoyed’ and the ‘extent of the land over which it is exercised’ are capable of reasonable modification and extension. ‘Thus, in the case of a custom to carry on a trade, the nature of the trade may vary with the advent of improved methods, or, in the case of a custom to play games on a close of land, the nature of the games played may vary with the prevailing fashion’.77 This constitutes a further departure from native title jurisprudence: the burden of proving certainty of the nature of a custom and its uninterrupted use is mitigated because, at common law, customs can evolve and adapt to meet changing circumstances. Moreover, although a long period of non-user would in itself be strong evidence against the existence of a customary right,78 if it is proved that the customary right existed before the beginning of the period of non-user, it cannot be lost by disuse or abandonment.79 Thus, it has been held that where the evidence established a customary right before the commencement of a 100-year period of non-user (from 1875 to 1975) the case came within the rule that once a customary right has been acquired it cannot be lost by disuse or abandonment.80 As regards the matter to which it relates, a custom which has existed from ‘time immemorial’ within a certain place, and which is certain and reasonable in itself, takes the place of the general common law and, in respect of that matter, is the local common law within the particular locality although contrary to, or not consistent with, the general common Parliament: Co Litt 113a. In the words of Coke: ‘No custom or prescription can take away the force of an Act of Parliament’. Although the common law will yield to immemorial custom, enacted law stands for ever: 1 Bl Comm 76; Salmond (n 54) 218. 75   Mabo (n 3) 43 (Brennan J). See also ibid 30, 45 (Brennan J) citing the doctrine of tenure as a skeletal principle; above n 34. cf YarmirrFC (n 34) [564]–[566] (Merkel J). 76   DelgamuukwCA (n 57) 651 (Lambert JA). 77   Halsbury’s Laws (4th edn, 1973–87) vol 12, para 425. For eg, an ancient custom to play games was held to cover cricket, ‘although it [was] reasonably certain that cricket was unknown until long after the time of Richard I’: Megarry and Wade (n 38) 850. See also City of London v Vanacre (1699) 12 Mod 269, 271; 88 ER 1314, 1315 (KB) where Lord Holt said ‘general customs may be extended to new things which are within the reason of those customs’. 78   Hammerton v Honey (n 57); New Windsor Corp v Mellor (n 48) 391 (Lord Denning MR), 395 (Browne LJ). On the requirement in native title claims for continued observance of laws and customs substantially uninterrupted since sovereignty to the present day, see below text to nn 278ff. 79   Wyld v Silver [1963] Ch 243 (CA) 255–56 (Lord Denning MR), 263–64 (Harman LJ); Scales v Key (1840) 11 Ad & E 819, 113 ER 625 (KB); New Windsor Corp v Mellor (n 48) 387, 391 (Lord Denning MR), 395 (Browne LJ). See also K McNeil, ‘Continuity of Aboriginal Rights’ in K Wilkins (ed), Advancing Aboriginal Claims: Visions/Strategies/Directions (Saskatoon, Purich Publishing, 2004) 127, 132–34. 80   New Windsor Corp v Mellor (n 48) per curiam. In this case, the inhabitants of New Windsor had asserted and enjoyed rights to use a piece of land of over two acres in the middle of New Windsor (known as Bachelor’s Acre) for sport and recreation from before the middle of the 17th century until 1875. Although the land had not been used for public recreation since 1875, the rights had subsequently been claimed from time to time. The land had been owned by the Borough of New Windsor from time immemorial and was being used partly as a car park and partly as a school playground. On an application under the Commons Registration Act 1965, the land was registered as a town or village green on the basis that the inhabitants of New Windsor had acquired by custom a right to indulge in lawful sports and pastimes on it. It was held that the customary right claimed had been established at common law which rendered the land a village green registerable as such. Because the evidence established the existence of the customary right before 1875, it could not be lost by subsequent disuse or abandonment. The century’s non-user did not, therefore, negate the customary right. Although of no material consequence, the Court emphasised that because the inhabitants were still claiming their right in 1903 and 1968, there had been no abandonment. Note that in Wyld v Silver (n 79) there had also been non-user since 1875.



First Limb of Common Law Aboriginal Customary Title 299

law.81 It follows from the nature of custom being local law that ‘[i]t can only be abolished or extinguished by Act of Parliament’.82 Although both custom and prescription set up a special law, the former is local and not dependent on any grant while the latter is personal83 and traced to a presumed grant.84 Nevertheless, whether a special law found its origins in prescription or custom, the law was considered to be part of the common law. This is crucial: because the Fejo High Court’s rejection of an analogy between native title and common law customary rights was based on customary rights being creatures of the common law having their origins in grant or presumed grant, the decision is not authority for rights which, having their origins in custom independently of Crown grant, amount to a local variation of the common law. Furthermore, the Fejo High Court’s reliance upon Wood v Leadbitter85 and Attorney-General v Wright86 is, with respect, misplaced. These cases are cited by the High Court as authority for common law rights finding their origins ‘in grant’ or ‘presumed grant’ respectively.87 Although Wood v Leadbitter clearly refers to incor­ poreal rights which may be proved by deed88 and is thus illustrative of a common law right tracing its origins to a grant, Wright relates to a public right, a matter not to be traced to a grant by the sovereign or the owner of the soil.89 Public rights differ from   See above n 74.   Hammerton v Honey (n 57); New Windsor Corp v Mellor (n 48) 387 (Lord Denning MR with whom the other members of the Court of Appeal agreed); R v Suffolk (n 57) 105 (Pill LJ with whom the other members of the Court of Appeal agreed). Furthermore, a statute can only take away the right by express words: Forbes v Ecclesiastical Commissioners for England (1872–73) LR 15 Eq 51 (Eq). 83   ‘[T]hat is, it is always made in the name of a certain person and his ancestors or those whose estate he has, or made in the name of a body corporate and its predecessors, whereas custom, being local, is not attached to any particular persons but to a particular locality and affects the property of the indeterminate number of persons for the time being connected with or being members of a particular class in that locality. A claim by custom is, therefore, often available for those who cannot prescribe in their own name or in the name of any certain person’: Halsbury’s Laws (4th edn, 1973–87) vol 12, para 404. See also Salmond (n 54) 221 where he observes that ‘[c]ustom is long practice operating as a source of law; prescription is long practice operating as a source of rights’. 84   See above nn 51–54. As modes of claiming rights, prescription and custom are in many respects analog­ ous: possession or user and passing of time are inseparable incidents to both: Halsbury’s Laws (4th edn, 1973– 87) vol 12, para 403; Rowles v Mason (1612) 2 Brownl & Golds 192, 123 ER 892 (CP); Warrick v Queen’s College, Oxford (1870) LR 10 Eq 105 (Eq) 121, 122 (Lord Romilly), affd (1870–71) LR 6 Ch App 716 (CA Ch); Mercer v Denne (n 48); Egerton v Harding (n 63) 694 (Scarman LJ). 85   Wood v Leadbitter (1845) 13 M & W 838, 153 ER 351 (Ex). 86   Attorney-General v Wright [1897] 2 QB 318 (CA). 87   Fejo (n 11) [53] fns 67, 68. 88   Although an easement has been distinguished from a licence by the fact that a licence is, and an easement is not, revocable since the end of the 15th century (Holdsworth, Historical Introduction (n 51) 269), the law regarding the position of a licence coupled with a grant was reviewed in Wood v Leadbitter (n 85). The judgment in this case is a ‘masterly historical analysis of the evolution of the law as to the nature of a licence’: Holdsworth, Historical Introduction (n 51) 270. The Court concluded that although all licences were revocable, if they were coupled with a grant, they were irrevocable. The Court also decided that such a grant must have been validly made, so that if the grant was of an incorporeal right over land, which could not be granted without deed, and no deed was granted, as had happened in that case, the licence was revocable. When the Court in Wood v Leadbitter spoke of a grant, they must have been taken to mean the grant of some ascertainable property which is capable of being granted: Frank Warr & Co v London CC [1904] 1 KB 713 (CA) 721–23 (Romer LJ). Note too the equitable modification of the legal rule; namely, that in certain cases equity would give effect to a grant made for value though not under seal: Duke of Devonshire v Elgin (1851) 14 Beav 530, 51 ER 389 (Rolls Ct); Frogley v Earl of Lovelace (1859) John 333, 70 ER 450 (V-C Ct). The Court of Appeal in Hurst v Picture Theatres Ltd [1915] 1 KB 1 (CA) disregarded the rule that there must be a grant of some ascertainable property. This had the result that, not only was a new extension of the equitable modification of the legal rule achieved, but doubts were cast upon the principles laid down in Wood v Leadbitter. 89   Wright (n 86) 321; cf headnote. 81 82

300  Common Law Aboriginal Customary Title both incorporeal hereditaments and customary rights in that they are exercisable only by members of the public generally; incorporeal hereditaments are personal and customary rights are only exercisable by members of some local community.90 ii  Public Rights Distinguished The action in Wright91 was brought in the name of the Attorney-General at the relation of a number of fishermen and yacht-owners claiming an injunction to restrain the defendant from interfering with their moorings and from casting adrift their craft lying at such moorings, within and on the foreshore at Leigh in the River Thames. The defendant was the sublessee of a several fishery and his case was that the digging up of the soil of the foreshore and placing in it baulks of timber and other weighty things for the purpose of attaching chains and buoys for mooring was a trespass which he had a right to abate. The right to navigate the waters and to cast anchor on the foreshore was not disputed. In his counterclaim, the defendant sought a declaration that he was entitled to enjoy the soil free from the rights claimed by the plaintiffs. The verdict of the jury, in favour of the plaintiffs, was based on the finding of an immemorial user of the foreshore for fixed moorings by all persons navigating the waters at Leigh.92 The English Court of Appeal unanimously dismissed the defendant’s appeal. Having found that a mooring was a mode of bringing a ship to rest and keeping her so for a time within the ordinary course of navigation,93 Lord Esher MR observed that what was in issue was a public right: ‘[t]his is not a right of any individual: it is a general right to use the waters for navigation in any ordinary way’.94 Importantly, his Lordship explained that such a matter is not to be traced to a grant by the sovereign or the owner of the soil, but that it is a right by the law of England, a public right in every one navigating in navigable waters.95

Although Lord Esher was of the view that on this ground alone the defendant wrongly interfered with the rights of the plaintiffs,96 he suggested that if this view was incorrect, a further ground would support his conclusion, namely, that there was a prescription in favour of persons frequenting the particular locality for the purpose of anchoring their vessels.97 It was in the context of this obiter comment that Lord Esher MR properly referred to ‘evidence which authorised the presumption of a grant from the Crown or of a grant from persons who took under the Crown’.98 In accord with Lord Esher’s reason for decision, AL Smith LJ decided the case on the basis of public rights. He concluded that the defendant, as lessee of the owner of the fishery, was

  Megarry and Wade (n 38) 849. See also above nn 52–54.   For comment see P Sinclair, ‘Aspects of the Law of Anchorage: Additional Materials’ (2001) Nov/Dec Conveyancer and Property Lawyer 475. 92   Wright (n 86) 318–19. 93   ibid 320–21 (Lord Esher MR). 94   ibid 321. 95  ibid. 96  ibid. 97   ibid 321–22. 98   ibid 322. 90 91



First Limb of Common Law Aboriginal Customary Title 301 owner subject to the common law right of all Her Majesty’s subjects, and of all frequenting the sea, to pass and repass and navigate over the place in question, and, as incident to that navigation, to anchor in the ordinary mode of navigation.99

However, in contradistinction to Lord Esher’s explicit finding that such a public right existed independently of any grant, AL Smith LJ made no reference to any grant, actual or presumed. Rather, his Lordship drew the inference that anchoring by mooring is an ordinary incident of navigation on the basis that the subject craft ‘have been brought up with moorings like these from a time from which the memory of man runneth not to the contrary, and that this should always have been done’.100 Immemorial user was, therefore, ‘the strongest possible way’ to show that anchoring by mooring was an ordinary incident of the public right of navigation;101 it did not indicate that the public right was dependent on any grant and Lord Esher’s conclusion to the contrary was not disputed. Indeed, AL Smith LJ only referred to a presumed grant in the context of examining another possible ground which could support his conclusion in the event that the inference he had drawn was incorrect.102 He suggested that the subject land could have been granted by the Crown to the grantee ‘on the condition that the grantee and his successors in title should ever thereafter occupy and enjoy that land subject to the right of all Her Majesty’s subjects passing and repassing and anchoring in [the] way . . . in question’.103 It followed that a possible legal origin for the uninterrupted and immemorial user of such an incident could be found either ‘by presuming a grant from the Crown . . . or a grant from the lord of the manor’.104 Although Rigby LJ agreed with the other members of the Court that there was a legal origin for the practice which the plaintiffs followed, the point of his divergence lies in the source of the legal origin. Rather than basing his decision on common law public rights, Rigby LJ declared that ‘[d]uring all times within legal memory there has been some authority which has the right to make regulations for the anchoring of craft with that port, either the Crown or some person who has derived some right from the Crown’.105 Unlike the other members of the Court, his Lordship said nothing about any other legal origin.106 The decision in Wright is authority for the proposition that the use of the foreshore in tidal and navigable waters by the owners of fishing boats and other craft, by fixing moorings in the soil for the purpose of attaching their boats to them, is a public right in the nature of an ordinary incident of the navigation of such waters. Although the majority of the Court found that such a result could also be supported by a presumption of a   ibid 323 (AL Smith LJ).  ibid. 101   AL Smith LJ clearly decided the case on the basis of public rights, concluding that the defendant’s claim to the soil was ‘subject to the ordinary incidents of navigation, to the common law rights which all Her Majesty’s subjects and all persons lawfully navigating have’: ibid 324. 102  ibid. 103  ibid. 104   ibid. Since AL Smith LJ referred to the duty of the Court when finding an uninterrupted and immemorial user of an incident such as that in Wright to find, if possible, a legal origin for it (ibid), it appears that his alternative ground for supporting the right was, like Lord Esher’s, based on prescription: see below text to n 108. 105   ibid 325 (Rigby LJ). His Lordship therefore ‘presumed’ that ‘it was one of the regulations of this part of the port of London that the mooring or anchorage of vessels should be carried out in [the manner followed by the plaintiffs]’: ibid. 106   He expressly stated that this was because he was satisfied with the ‘statutory’ legal origin conclusion and not because he doubted what the Master of the Rolls and the Lord Justice had said: ibid. 99

100

302  Common Law Aboriginal Customary Title legal origin by grant from the Crown of the foreshore subject to such user, or by a former owner of the foreshore, such observations were merely obiter. Furthermore, while immemorial user of the claimed right supported both grounds, of the two judges who decided the case on a public rights basis, Lord Esher expressly held that the origin of the right was not traced to any grant107 and this conclusion was implicit in AL Smith LJ’s judgment. It was only in respect of the alternative ground for supporting the claimed right that their Lordships referred to a presumed grant. In this context, while Lord Esher expressly referred to a prescription in favour of persons frequenting the place for the purpose of anchoring their vessels, this result was also implicit in AL Smith LJ’s analysis.108 It has been seen that immemorial antiquity of a right is required to establish claims based on prescription and custom.109 In Wright, immemorial user was relied upon as evidence of a public right. A finding that a right is of immemorial antiquity is, therefore, relevant to rights acquired by prescription, customary rights and public rights. It is, however, only in the context of prescription that an immemorial right is traced to a presumed grant. Public rights and customary rights are not dependent on any grant. Thus, although Lord Esher and AL Smith LJ accurately stated, in obiter, that prescription gives rise to rights under a presumed grant, the law relating to the circumstances in which prescription gives rise to rights under such presumed grant are the very antithesis of those which give rise to customary rights independently of any grant. A custom may establish a local law in a particular place differing from the common law – as a custom of gavelkind or borough English and many others which could not since the time of memory be created by anything but an Act of the Legislature – whereas prescription can only be of something which is personal and has a lawful origin at common law.110 In Dalton v Angus & Co,111 Lord Chancellor Selbourne explained: The rule as to prescription is thus stated in Sir Francis North’s argument in Potter v North: ‘The law allows prescriptions, but only in supply of the loss of a grant. Ancient grants happen to be lost many times, and it would be hard that no title could be made to things that lie in grant but by showing of a grant; therefore upon usage temps dont, &c., the law presumes a grant and a lawful beginning, and allows such usage for a good title, but still it is but in supply of the loss of a grant; and therefore for such things as can have no lawful beginning, nor be created at this day by any manner of grant, reservation, or deed that can be supposed, no prescription is good.’112

  ibid 321.   See above n 104. 109   See above nn 52, 65ff. 110  See Lockwood v Wood (1844) 6 QB 50, 64; 115 ER 19, 25 (Ex Ch) (Tindal CJ): ‘In the case of a custom, therefore, it is unnecessary to look out for its origin: but, in the case of prescription, which founds itself upon the presumption of a grant that has been lost by process of time, no prescription can have had a legal origin where no grant could have been made to support it’. For this reason, although the High Court has held that the doctrine of ‘lost modern grant’ applies in the context of easements proper (Delohery v Permanent Trustee Co of NSW (1904) 1 CLR 283 (HCA)), it does not apply to customary rights in the nature of easements. For details on the lost modern grant doctrine see Butt, Land Law 2006 (n 66) 451ff. 111   Dalton v Angus & Co (1881) 6 App Cas 740 (HL). 112   Ibid 791. Note that in the context of immemorial customs, although the custom does not have to have a lawful beginning, there is a not too dissimilar rule of law that the court must presume everything possible which could give it a legal origin: Cocksedge v Fanshaw (1779) 1 Dougl 119, 132; 99 ER 80, 87–88 (KB) (Lord Mansfield); Brocklebank v Thompson [1903] 2 Ch 344 (Ch D) 350 (Joyce J); Mercer v Denne (n 48); see also New Windsor Corp v Mellor (n 48); Egerton v Harding (n 63). 107 108



First Limb of Common Law Aboriginal Customary Title 303

iii Summary Contrary to the High Court’s conclusion in Fejo, Wright is not authority for common law customary rights or rights of common finding their origins in presumed grant; it is authority for public rights which are not traced to any grant. Furthermore, Wright only considers, by way of obiter, prescription as a source of lawful common law rights; it does not consider custom as a source of common law for a particular area although contrary to, or not consistent with, the general rules of the common law. Nevertheless, the Fejo High Court concluded that any attempted analogy between native title and rights of common or customary rights was ‘misplaced’ because rights of common and customary rights ‘are creatures of the common law finding their origins in grant or presumed grant’ whereas native title rights ‘are not creatures of the common law’.113 While the High Court was following its own decisions regarding the non-­ common law status of native title, the critical aspect of the Court’s rejection of the suggested analogy is its failure to address common law rights which have their origins in custom independently of any grant and yet amount to a special local law, a local variation of the common law. The High Court did, however, expressly confirm that ‘a right owing its existence to one system of law (a right of freehold tenure) may be subject to other rights created by the same legal system (such as customary rights . . .)’.114 Implicit in the High Court’s own analysis, therefore, is an acknowledgment that the common law has the potential to recognise post-sovereignty Aboriginal customary land rights under the first limb.115 B  Application of the First Limb The High Court in Yorta Yorta held that rights in land created after sovereignty which owe their origin and continued existence only to a normative system other than that of the new sovereign will not be given legal effect.116 While this decision has been interpreted to preclude any recognition of Aboriginal rights to land created after sovereignty, it is distinguished in the context of the first limb. Pursuant to this limb, Aboriginal customary land rights acquired post-sovereignty become the common law. Thus, although created after sovereignty, such customary rights derive from and owe their continued existence to the normative system of the new sovereign: the common law. It has been seen that, even in the context of the strict feudal doctrine of tenure, the intersection of common law rights – general versus customary – results in customary rights superseding the general common law.

113   Fejo (n 11) [53] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). See also above text to n 40. 114   Fejo (n 11) [53] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). 115   On the issue of the recognition of Aboriginal customary laws beyond those relating to land see U Secher, ‘The Mabo Decision: Preserving the Distinction between “Settled” and “Conquered or Ceded” Territories’ (2005) 24 University of Queensland Law Journal 35. 116   Yorta Yorta (n 14) [43]: ‘Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power, would not and will not be given effect by the legal order of the new sovereign’.

304  Common Law Aboriginal Customary Title Although post-sovereignty Aboriginal customary rights which become the common law under the first limb are analogous to incorporeal hereditaments, there is one crucial distinction. It is well established that although by custom an easement over land may be claimed, a profit out of land cannot be claimed.117 This is because the rules relating to incorporeal hereditaments, conceived in the context of the feudal doctrine of tenure, concern the exercise of rights over land belonging to another who is claiming title through the Crown; the rights claimed by custom must be reasonable vis-a-vis the owner.118 Aboriginal custom based rights are not, however, necessarily limited in this way: because the two-fold feudal fiction of original Crown ownership and original Crown grant does not apply in post-Mabo Australia,119 rights conferred by Aboriginal custom can be acquired in respect of land whether or not it has been brought within the doctrine of tenure ad veritatem by Crown grant. While the acquisition of such rights over land belonging to another120 is not insignificant, they would necessarily be rights short of title due to the reasonableness requirement for a valid custom at common law. The acquisition of such rights is, therefore, most significant in the context of unalienated land: land which has neither been granted by the Crown nor appropriated to the Crown. Where land does not belong to another claiming title through the Crown and the Crown has mere radical title to the land – as was the case with much, if virtually not all, land in Australia for some time after the Crown asserted sovereignty – custom can create novel and substantial rights. Where no other rights of property are affected, an Aboriginal custom recognising an entitlement amounting to ownership of land would not be unreasonable and, once acquired, would come within the rule that customary rights cannot be lost by disuse or abandonment. In this way, post-sovereignty Aboriginal customary law can amount to an independent source of non-derivative common law title.121

117   Gateward’s Case (1607) 6 Co Rep 59b, 77 ER 344 (KB); Commissioners of Sewers of the City of London v Glasse (1871–72) LR 7 Ch App 456 (CA Ch) 465; Alfred F Beckett Ltd v Lyons [1967] Ch 449 (CA). See also above n 72. 118   Indeed, the justification for the principle that a profit cannot be claimed by custom is said to be that otherwise the subject matter would be destroyed, ‘and such a claim, which might leave nothing for the owner of the soil, is wholly inconsistent with the right of property in the soil’: Race v Ward (1855) 4 El & Bl 702, 709; 119 ER 259, 262 (KB) (Lord Campbell CJ). Nevertheless, ‘if such a right has in fact been enjoyed for a long time, as of right and not merely by toleration, the courts will strive to find a legal origin for it’: Megarry and Wade (n 38) 853. Two methods have evolved for circumventing the rule that there can be no custom for a fluctuating body of persons to take a profit: the ‘presumed incorporation by Crown grant’ doctrine and the ‘presumed charitable trust’ doctrine. Both of these methods, however, effectively amount to an extension of the availability to the parameters of prescription as a source of law. Although prescription presumes a grant in favour of a person from lapse of time, under both the ‘presumed incorporation by Crown grant’ doctrine and the ‘presumed charitable trust’ doctrine, the obstacle that there is no definite person or persons in whose favour a grant can be presumed is overcome; if long enjoyment is shown, the court may find a legal origin for the right by presuming the existence of a corporation, with a single legal personality, created ad hoc in a grant from the Crown or a grant of the profit to some existing corporation, subject to a trust or condition that the corporation allow the claimants to exercise the right claimed respectively: Megarry and Wade (n 38) 854. For an account of both methods: Megarry and Wade (n 38) 854–55. As to the reasonableness requirement see above nn 70–75. 119   See ch 3 text to nn 29, 89. See also McNeil’s argument in the context of Aboriginal title that sui generis interests are not subject to restrictions arising mainly out of feudal conceptions of real property: McNeil, ‘Continuity of Aboriginal Rights’ (n 79) 138. 120   Whether deriving common law title from the Crown or from pre-sovereignty Aboriginal laws/customs. 121   There is no reason why the relevant Aboriginal customary law relied upon under the first limb cannot have existed pre-sovereignty, but the second limb specifically applies to pre-sovereignty Aboriginal customary law.



First Limb of Common Law Aboriginal Customary Title 305

C  Content, Proof and Protection under the First Limb Since Aboriginal title under the first limb depends on the customs of particular Aboriginal groups, what does this mean for the content of the title? Does it differ from group to group? Post-sovereignty Aboriginal customary rights can only support title to land which is not subject to any other property rights when the customary rights are acquired. Irrespective of the specific customs of Aboriginal groups, therefore, provided an Aboriginal group has title to such land by virtue of their own customs (from the Aboriginal perspective) the content of the title should always be the same: absolute ownership. Where a particular Aboriginal group’s customs confer rights less than title, the content of the ‘right’ will depend on whether the land is subject to other property rights when the customary right is acquired. If it is not, the content of the ‘right’ will reflect the specific customs of the group. However, if the land does belong to another, the content of the ‘right’ will reflect the specific customs of the group which are reasonable in terms of the other rights which are affected. It follows that the requirement to prove that a particular Aboriginal custom is reasonable in order to be a valid source of common law is most important in the context of land subject to other property rights. With respect to the other requirements for establishing Aboriginal custom as a source of common law title/rights to land, the burden of proving that a particular custom existed from time immemorial (from acquisition of Crown sovereignty) is mitigated by application of specific presumptions: in addition to evidence of a custom existing as far back as living witnesses can remember raising a presumption that the custom existed from time immemorial, ancient origin may be presumed if there has been long enjoyment and there is no proof of a later origin.122 The burden of proving certainty of the nature of a custom and its uninterrupted use is also reduced because, at common law, customs can evolve and adapt to meet changing circumstances and, once acquired, customary rights cannot be lost by disuse or abandonment.123 Furthermore, since Aboriginal customs (if proved) become the local common law despite being contrary to or not consistent with the general common law, conventional common law concepts, such as ‘possession’ and ‘occupation’, become juridically irrelevant; it is the Aboriginal perspective which is emphasised. In all cases where Aboriginal customary rights become the common law they receive the same protection as other common law rights. Moreover, because common law rights which have their origins in custom exist independently of any grant (actual or presumed) and can be contrary to the rules of the general common law, legal rights derived from custom can receive protection in circumstances where legal rights derived from Crown grant cannot.124

  See above text to nn 65–69.   See above text to n 79. 124   See above text to nn 54–82 (customary rights analogous to incorporeal hereditaments). 122 123

306  Common Law Aboriginal Customary Title III  SECOND LIMB OF THE DOCTRINE OF COMMON LAW ABORIGINAL CUSTOMARY TITLE: TITLE ARISING BEFORE ACQUISITION OF SOVEREIGNTY

A  Aboriginal Customary Title The second limb of the doctrine of common law Aboriginal customary title (‘Aboriginal customary title’) provides a potentially more important basis upon which Aboriginal customary law can amount to an independent source of non-derivative common law title within Australian land law. It will be seen that in the case of a title owing its existence to customary rights pre-dating, rather than post-dating, sovereignty different considerations apply. Aboriginal customary title is a distinctive body of common law which applies automatically upon acquisition of an inhabited settled colony as a result of the modified doctrine of reception –pursuant to which settlement conferred a radical title on the Crown and the interrelated doctrines of tenure ad veritatem (with radical title as its postulate) and continuity pro-tempore applied.125 The title is part of the colonial law determining the law which is to govern the new colony and becomes the common law. Aboriginal title sourced in pre-sovereignty laws/customs continues post-sovereignty and is accommodated within the legal system imposed as a consequence of Crown sovereignty by concepts known to that legal system.126 Aboriginal customary title has its origins in the body of Aboriginal laws/customs which existed before Crown sovereignty: pre-sovereignty Aboriginal legal/customary systems. The laws/customs127 of identifiable Aboriginal groups relating to particular land are ipso facto derived from their legal/customary systems. Indeed, it is inconceivable that an identifiable Aboriginal group in occupation of land did not have a system by which land utilised in a meaningful way was determined by the group.128 This does not mean, however, that it is appropriate to expect a system which is beyond that inherent in Aboriginal occupation or that Aboriginal occupation was ‘normative’ in every case.129 ‘System’ is used in an expansive rather than restrictive sense. Pre-sovereignty Aboriginal 125   Note, however, that Aboriginal customary title applies in an inhabited settled colony irrespective of the conceptual content of radical title and the application of the doctrines of tenure ad veritatem and continuity pro-tempore: see below text to n 342ff (‘Doctrinal Underpinnings for Aboriginal Customary Title’). It will also be seen that Aboriginal customary title applies in conquered/ceded colonies with bipartite colonial histories: text to n 346ff. 126   In this context, ‘known to’ a legal system includes known to the legal system per se and its evolution: see below text in para following n 133. 127   Note that the terms ‘custom’ and ‘law’ (and their derivatives) are used interchangeably in the Aboriginal context: see above text to nn 27–29. 128  See Mabo (n 3) 187 (Toohey J); Ward v Western Australia (n 27) 501 (Lee J). See also Worcester v Georgia 31 US 515, 559 (1832) (USSC) (Marshall CJ): ‘The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed’. See also Bartlett, ‘The Source, Content and Proof of Native Title at Common Law’ (n 27) 40; C Bell and M Asch, ‘Challenging Assumptions: The Impact of Precedent in Aboriginal Rights Litigation’ in M Asch (ed), Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference (Vancouver, UBC Press, 1997) 38, 66–71; Bartlett, Native Title in Australia (n 27) 99, 212; Young (n 25) 367. 129   Young (n 25) 367. Young points out that restrictive methodology regarding what can be ‘law and custom’ in native title jurisprudence is a return to the redundant ‘scale of social organisation’ approach to Aboriginal rights: ibid 365–68.



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occupation of land need only be part of a system of laws/customs by which land was used in a meaningful way from the Aboriginal perspective: purposive occupation.130 The pre-sovereignty laws/customs of an identifiable Aboriginal group pursuant to which land was purposively occupied is, therefore, the foundation of Aboriginal customary title.131 It will be seen that proof of the existence of such laws/customs establishes Aboriginal customary title132 which comprises an internal and external dimension. The specific laws/customs of the Aboriginal group continue to operate within the internal dimension to define the rights and obligations of the titleholders inter se. The external dimension provides the normative structure which accommodates the title within the post-sovereignty legal system by concepts known to that legal system; it defines and protects the title vis-a-vis the Crown and third parties.133 There are two ways in which Aboriginal customary title can be accommodated within the post-sovereignty legal system: the external dimension of the title has two branches. In this context, while it is clear that the doctrine of tenure ad veritatem is brought into play as soon as the Crown grants an interest in land, the critical question is: what law applies to the land prior to this? Does a traditional ‘exception’ to the feudal doctrine of tenure (tenure in ancient demesne) apply, or does English law relating to pre-feudal landholding (folkland) apply? The history and particulars of these forms of landholding were examined in chapter one. For present purposes, by highlighting the essential nature of tenure in ancient demesne and folkland, it will be seen that these forms of landholding provide separate bases for accommodating Aboriginal customary title within Australian land law as a common law alternative to native title: in addition to being known to English law, they are consistent with a title existing before sovereignty and before the introduction of (any) doctrine of tenure. Importantly, tenure in ancient demesne and folkland are known to the common law per se and its evolution respectively.

  See also below text to n 252.   Contemporary scholarship has highlighted the occupation/law and custom dichotomy, often to challenge aspects of judicial decisions: K McNeil, ‘The Meaning of Aboriginal Title’ in M Asch (ed), Aboriginal and Treaty Rights in Canada (n 128) 135; K McNeil, ‘Aboriginal Title and Aboriginal Rights: What’s the Connection?’ (1997) 36 Alberta Law Review 117, 140–42; N Pearson, ‘The Concept of Native Title at Common Law’ in G Yunupingu (ed), Our Land is Our Life: Land Rights – Past, Present and Future (Brisbane, University of Queensland Press, 1997) 150; K McNeil, ‘The Relevance of Traditional Laws and Customs to the Existence and Content of Native Title at Common Law’ in K McNeil, Emerging Justice? Essays on Indigenous Rights in Canada and Australia (Saskatoon, University of Saskatchewan Native Law Centre, 2001) 416. Young has, however, shown that the distinction disappears when the notion of occupation is not ‘over-physicalised’ and laws/ customs are not ‘over-particularised’ but given a culturally appropriate meaning: Young (n 25) 46. McNeil has also reconciled the distinction in the context of native title: ‘The Relevance of Traditional Laws and Customs’ 421; see also below n 133. The doctrine of Aboriginal customary title confirms that the distinction is perceived rather than real; a by-product of conceptualising Aboriginal title to land in terms of common law concepts. 132   As to proof see below text to n 249ff. 133   For further discussion of the internal and external dimensions see below text to nn 232–46. See also below text to n 163ff. McNeil, ‘Relevance of Traditional Laws and Customs’ (n 131) 421 has shown that distinguishing between the external and internal dimensions of Aboriginal title effectively reconciles what may be regarded as two contradictory aspects of Brennan J’s judgment in Mabo (n 3) 51–52, 60, 61: ‘that exclusive occupation gives rise to a communal native title that is akin to ownership, and that native title is given its content by traditional laws and customs, . . . are really two sides of the same title, the former operating externally and the latter internally’. See also McNeil, ‘Aboriginal Title and Aboriginal Rights: What’s the Connection?’ (n 131). cf Young (n 25) 258–59 who refers to a communal/inter se distinction in the context of Brennan J’s judgment. 130 131

308  Common Law Aboriginal Customary Title i  Tenure in Ancient Demesne The importance of tenure in ancient demesne is that it is a form of customary landholding which existed before the Norman Conquest and concomitant change of sovereignty yet not only continued to be recognised post-Conquest but was given force of law by the common law.134 Tenure in ancient demesne was held exclusively by one class of tenants – villein socmen – on ancient demesne manors.135 While there were also ordinary freeholders and villeins (copyholders) on such manors, the distinguishing characteristic of tenure in ancient demesne was that it received the same protection as freehold. If the customary law as administered by the manorial court disregarded their title, tenants in ancient demesne had the right to appeal to the common law administered by the royal courts.136 Since ordinary copyholders were not protected at all by these courts, tenure in ancient demesne was distinguished from ordinary copyhold.137 It also differed from ordin­ary freehold because land held by tenure in ancient demesne could not be conveyed by the general common law conveyances of feoffment but could only pass by surrender to the lord: it was inalienable other than to the lord.138 Tenure in ancient demesne also diverged from both copyhold and freehold tenure because its existence was confined to what was legally designated ancient demesne land. The privileged land was land both recorded as having belonged to King Edward in the Domesday Book139 and which had been in William the Conqueror’s hand ever since the Norman Conquest (as opposed to later additions to the royal estates, whether by escheat, forfeiture, purchase or any other means).140 Tenure in ancient demesne was, therefore, a form of land tenure which drew its origins from pre-Conquest conditions and tenants in ancient demesne obtained protection with their original rights. The nature of the customary tenant’s holding was also substantial, amounting to the entire beneficial interest in the land.141 Blackstone came to the ‘historically correct’ conclusion that although these tenants   See ch 1 text to nn 136–57.   Holdsworth (n 49) 264–65. See also J Scriven, A Treatise on Copyhold, Customary Freehold and Ancient Demesne Tenure, 5th edn (London, Butterworths, 1867) 423–34. Bracton described this species of tenure under the name of ‘privileged villenage’ or ‘villein-socage’, the latter a name compounded out of both ‘the baseness of villenage in the nature of it’s services, and the freedom of socage in their certainty’: 2 Bl Comm 99. 136   If a freeman was wrongly deprived of his holding, he had the great writ of right patent. The villein socman in such circumstances had the little writ of right close. Further, if there was any attempt to infringe the rights or increase the duties of the villein socmen of a manor of ancient demesne, they had the right (collectively in the first place) to a writ of monstraverunt, which was a complaint to the King that their rights had been infringed: Iveagh v Martin [1961] 1 QB 232 (QB) 262 (Paull J). 137   Tenants holding in villeinage had no writ, either manorial or extra-manorial, for the protection or recovery of their holdings. Thus, the existence of the little writ of right and the writ of monstraverunt for villein socmen, narrowed the distinction between freehold and ancient demesne villeinage to one of ‘jurisdiction and procedure’: P Vinogradoff, Villainage in England: Essays in English Mediaeval History (Oxford, Clarendon Press, 1892) 96. 138   2 Bl Comm 100. cf Merttens v Hill [1901] 1 Ch 842 (Ch D) 853 where, referring to the description of tenure in ancient demesne contained in the third report of the Real Property Commissioners, Cozens-Hardy J denied that land held in ancient demesne passed by surrender and admittance. Note, however, that the report of the Real Property Commissioners really relates to socage tenure: see Megarry and Wade (n 38) 28 fn 57. 139   This was the only admissible evidence and it was conclusive: Acle (Manor of) (1306) YB 33–35 Edw I, RS p 309, 311; Burton (Abbot of) v Lancaster (Earl of) (1308–09) YB 2 & 3 Edw II, SS vol 19, p 59, 60; Lodelowe (Joan, widow of William de) and Laurence de Lodelowe and Robert (1337) YB 11 & 12 Edw III, RS p 159, 165; Vinogradoff, Villainage in England (n 137) 90. However this may not always have been the rule: F Pollock and FW Maitland, The History of English Law Before the Time of Edward I, vol 1, 2nd edn (Cambridge, CUP, 1911) 399. 140   Pollock and Maitland, 1 The History of English Law (n 139) 383–84; Holdsworth (n 49) 263–64. 141   Merttens (n 138) 853 (Cozens-Hardy J). 134 135



Second Limb of Common Law Aboriginal Customary Title 309

were neither freeholders nor copyholders, but a tertium quid,142 they had ‘an interest equivalent to a freehold’.143 And in later times, they were equated with freeholders.144 The essential point is that customary land rights pre-dating a change of sovereignty continued to be recognised post-sovereignty and were protected by the common law. In Mabo, the Australian common law was rewritten to recognise native title, which, like tenure in ancient demesne, is a form of landholding pre-dating sovereignty. Unlike tenure in ancient demesne, however, native title is subject to subordination and extinguishment by the common law. Since the rights of tenants in ancient demesne bridged over the Conquest and existed within the feudal tenurial system, a form of customary tenure pre-dating sovereignty and existing outside, or alongside, the doctrine of tenure ad veritatem has a more factual basis. While the continued recognition of customary law pre-dating the Conquest mitigated against the universality of the feudal doctrine of tenure, because the customary tenants of ancient demesne claimed the King’s protection as the tenants of King Edward, it is arguable that a legal origin in the nature of a presumed grant from the present sovereign (William the Conqueror) could be attributed to this exception to the feudal doctrine of tenure. Such a presumed grant is not, however, relevant in the context of the doctrine of tenure ad veritatem which, by applying only to every Crown grant of an interest in land, renders the fiction of original Crown grant otiose.145 The proposition that a traditional exception to the feudal doctrine of tenure – tenure in ancient demesne – applies to land subject to pre-existing Aboriginal title is the first of the two bases for accommodating the external dimension of Aboriginal customary title within the post-sovereignty legal system. The second basis, to which we now turn, is that English law relating to pre-feudal landholding – folkland – applies to land before it is brought within the doctrine of tenure ad veritatem by valid post-sovereignty Crown grant. ii Folkand It was seen in chapter one that the germ of the feudal doctrine of tenure (and its accompanying dual-fiction of original Crown ownership and original Crown grant) lies in three Anglo-Saxon institutions: the forms of landholding in pre-Conquest England: folkland, bookland and laenland.146 Although the oldest form of pre-feudal landholding is folkland, two competing theories were advanced to define the nature of this form of landholding. John Allen originated the theory that folkland was the land owned by the 142   1 Bl Comm 100. Blackstone’s conclusion was adopted by the judges: Holdsworth (n 49) 268, 269. See also ch 1 n 150. 143   1 Bl Comm 100. 144   Merttens (n 138) 853 (Cozens-Hardy J). Although Cozens-Hardy J adopted the description of tenure in ancient demesne contained in the third report of the Real Property Commissioners – a report which really relates to socage tenure (see above n 138) – he expressly stated that, in addition to the Report, he arrived at the conclusion that the freehold was in the tenants in ancient demesne (not in the lord of the manor) for several other reasons including that ‘[t]hey are called “free tenants” in very early documents . . . [and] [t]hey used the writ of right close, which seems to have been only available to freeholders. According to FitzHerbert’s Natura Brevium, 11 F, a writ of right close is a writ which is directed unto the lord of ancient demesne, which lieth for those tenants within ancient demesne who hold their lands by charter in fee simple, or in fee tail, or for life, or in dower. But it does not lie for copyholders’: ibid 853–54. 145   See ch 3 text to n 29. 146   See ch 1 text to n 14ff.

310  Common Law Aboriginal Customary Title nation; the ager publicus of England,147 while Sir Paul Vinogradoff established that folkland was an allodial system of customary landholding in which land was held of no superior.148 Vinogradoff’s interpretation is historically correct149 with the consequence that ‘folkland’, the most ancient kind of private property, is the term which modern historians have rejected in favour of the ‘alod’.150 Folkland was ‘the holding of an individual which [was] governed by the ancient folk-right and, therefore, subject to restrictions which tend[ed] to preserve it as a family estate’.151 Indeed, its most significant feature was that it was inalienable out of the holder’s family.152 As this form of landholding contained no necessary implications of lordship or tenures by one person from another, it was essentially pre-feudal.153 And, since folkland was an allodial system of landholding, it was also one of the traditional exceptions to the feudal doctrine of tenure (indeed, the only true exception).154 Accordingly, folkland blurs the distinction between the two bases for accommodating the external dimension of Aboriginal customary title within the post-sovereignty legal regime. Crucially, the Australian High Court’s redefinition of the doctrine of tenure has removed the potential difficulties raised by a claim based upon the notion of allodial ownership which was inherently inconsistent with feudal doctrine.155 The proposition that title to land can be accommodated within Australian land law on the basis that, before particular land is brought within the doctrine of tenure ad veritatem by postsovereignty Crown grant, the law relating to folkland applies is not necessarily exclusive to Aboriginal people.156 B  Content of Aboriginal Customary Title Despite native title being grounded in Aboriginal laws/customs, its form and content have been moulded by the common law courts. In the context of conventional Aboriginal 147   J Allen, Inquiry into the Rise and Growth of the Royal Prerogative in England (London, Longman, Rees, Orme, Brown, and Green, 1830). For an account of Allen’s theory see P Vinogradoff, ‘Folkland’ in HAL Fisher (ed), Collected Papers of Paul Vinogradoff with a Memoir, vol I (Oxford, Clarendon Press, 1928) 92–93 (reprinted from (1893) 8 The English Historical Review 1–17). For a list of authors who have endorsed Allen’s interpretation see ibid 91–92. This list includes F Pollock, The Land Laws (London, Macmillan and Co, 1883) 20, app – Note B. See also KE Digby, An Introduction to the History of the Law of Real Property, 3rd edn (Oxford, Clarendon Press, 1884) 11ff. 148   Vinogradoff, ‘Folkland’ (n 147). See also FW Maitland, Domesday Book and Beyond – Three Essays in the Early History of England (Cambridge, CUP, 1897) 244ff; Pollock and Maitland, 1 The History of English Law (n 139) 61–62; CF Kolbert and NAM Mackay, History of Scots and English Land Law (United Kingdom, Geographical Publications Ltd, 1977) 9. 149   See ch 1 text to nn 19, 53ff; Vinogradoff (n 147) 103. Thus restoring the 18th century interpretation of Spelman. 150  Maitland, Domesday Book (n 148) 257. 151   Vinogradoff (n 147) 103. 152   See also Pollock and Maitland (n 139) 62 who adopt Vinogradoff’s interpretation and suggest that it is probable that the alienation of folkland was difficult. cf DR Denman, Origins of Ownership: A Brief History of Land Ownership and Tenure in England from Earliest Times to the Modern Era (London, George Allen & Unwin Ltd, 1958) 67. 153   Butt (n 66) para 410. 154   See ch 1 text to n 126. 155   Indeed, the High Court expressly described native title as ‘allodial’: Ward (n 14) [331] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). cf Attorney-General (NSW) v Brown (1847) 1 Legge 312 (NSWSC) 317 where the Court unanimously rejected the possibility of allodial ownership in the colony of New South Wales: see ch 4 text to n 33. 156   See discussion of Step v Hinton [2012] NTCA 3 in ch 6 text to nn 87ff, 272.



Second Limb of Common Law Aboriginal Customary Title 311

title, Brian Slattery has observed that although ‘the right has long been recognized in the courts, its fundamental nature is shrouded in doubt’.157 Kent McNeil has suggested that the ‘content of indigenous land rights is heavily influenced, if not determined, by the source of these rights’.158 Because McNeil and Slattery’s scholarship has been widely cited by courts in various jurisdictions grappling with the issue of Aboriginal land rights, it provides a logical reference point for new legal doctrine in this evolving area of law. For present purposes, McNeil’s analysis of ‘laws and customs under indigenous legal systems’159 and ‘the common law’160 as sources of Aboriginal land rights and thus their content will be considered161 together with Slattery’s examination of whether Aboriginal title should be conceived as ‘a customary right rooted in Indigenous law, a right under English common law, or a sui generis right’.162 It will be seen that although McNeil and Slattery reach different conclusions, a number of common fundamental principles emerge from their analyses which are consistent with the conceptualisation of Aboriginal customary title. McNeil’s reference to sourcing Aboriginal land rights in the laws and customs under ‘indigenous legal systems’ (‘custom approach’) involves an application of the con­ ventional doctrine of continuity: any pre-existing land rights under Aboriginal legal/ customary systems continued as enforceable rights post-colonisation.163 According to this approach, defining the content of a particular Aboriginal group’s title requires a detailed study of its land system under customary law.164 McNeil and Slattery agree that the strength of this approach lies in emphasising the Aboriginal origins of the title by acknowledging the existence of Aboriginal legal systems both before and after Crown sovereignty and providing the means for enforcing rights arising from such legal systems.165 McNeil and Slattery also agree that this approach has a number of inherent weaknesses. In addition to requiring Aboriginal people to prove their pre-Crown sovereignty title to land under their legal systems in non-Aboriginal courts,166 it allows for ‘dismembering of aboriginal title into several parts’ by viewing indigenous land rights as the ‘sum of a series of particular rights in relation to land’ which correspond with particular uses made by a group.167 157   B Slattery, ‘The Metamorphosis of Aboriginal Title’ (2006) The Canadian Bar Review 255, 256 (reprinted in a slightly different from in M Morellato (ed), Aboriginal Law Since Delgamuukw (Aurora, Ont, Canada Law Book, 2009) 145–73). 158   K McNeil, ‘The Sources and Content of Indigenous Land Rights in Australia and Canada: A Critical Comparison’ in LA Knafla and H Westra (eds), Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand (Vancouver, UBC Press, 2010) 146, 146. 159   McNeil referred to this source of Indigenous land rights interchangeably as ‘indigenous legal systems’ (ibid 146) and ‘indigenous laws and customs’ (ibid 156). 160   ibid 146. McNeil is referring to the juridical effect the common law gave to exclusive occupation of land by Indigenous people at the time of colonisation, irrespective of the nature of the Indigenous peoples’ land rights under their own legal systems. 161  McNeil has, however, identified four different sources of Indigenous land rights: in addition to the sources cited in the text, they can also derive from positive enactments (eg, the various State and Territory Aboriginal land rights Acts in Australia; the Royal Proclamation of 1763 in Canada) and practices and traditions integral to distinctive Indigenous cultures at the time of European contact yet outside Indigenous legal systems (a source added by the Supreme Court of Canada in R v Van der Peet [1996] 2 SCR 507): ibid 146. The phrase ‘Indigenous legal system’ is used interchangeably with Aboriginal customary law. 162   Slattery, ‘Metamorphosis of Aboriginal Title’ (n 157) 256. See also ibid 263ff. 163   McNeil, ‘Sources and Content of Indigenous Land Rights’ (n 158) 146, 156ff. 164   See Slattery (n 157) 264. 165   ibid; McNeil (n 158) 156. 166   For a critical analysis of this difficulty see McNeil (n 158) 156–59. 167   Slattery (n 157) 264–65. See also McNeil (n 158) 151–52.

312  Common Law Aboriginal Customary Title Relying on the custom approach as the source of Aboriginal rights is also subject to the judicial limitation that only rights existing at the time the Crown acquired sovereignty qualify for post-sovereignty recognition.168 Freezing Aboriginal rights in pre-colonial times not only prevents the laws/customs of Aboriginal people from evolving to meet changing circumstances (including those caused by colonisation), it denies Aboriginal people any rights of self-government.169 Thus, McNeil suggests a modification to the custom approach: while the appropriate time for determining the external dimension of Aboriginal title – which defines the rights and obligations of Aboriginal titleholders vis-avis the Crown and others – is the time of Crown sovereignty,170 the internal dimension of Aboriginal title – which defines the rights and obligations of the Aboriginal titleholders inter se – should not be fixed at the time of Crown sovereignty.171 McNeil is of the view that, despite the problems, reliance on the custom approach with the suggested modification is appropriate in the right circumstances,172 such as ‘where indigenous people were not in exclusive possession of land at the time of Crown sovereignty’173 for the purpose of the conventional doctrine of Aboriginal title. Slattery, on the other hand, concludes that the custom approach is inadequate to define Aboriginal land rights because there is a need for uniform rules governing the external and collective dimensions of Aboriginal title.174 McNeil’s reference to sourcing Aboriginal land rights in ‘the common law’ (‘common law approach’) refers to the juridical effect the common law gave to exclusive occupation of land by Aboriginal people at the time of colonisation,175 irrespective of the nature of the Aboriginal peoples’ land rights under their own legal systems.176 Although the idea of a fee simple title based upon the common law doctrine of possession was developed by McNeil177 (and referred to at some length by Toohey J in Mabo),178 McNeil modified his views on the sources and content of Aboriginal land rights as a result of subsequent judicial pronouncements.179 Acknowledging that exclusive occupation of land as one potential source of Aboriginal land rights confers ‘a form of common law title’180 because it has sui generis and jurisdictional aspects,181 he concludes: This title is equivalent to a fee simple estate in the sense that it encompasses the entire beneficial interest in the land, including the surface, subsurface, and airspace, for a potentially unlimited   McNeil (n 158) 159. See also Yorta Yorta (n 14) [43], cf [37].   ibid 159, 161–62. 170   ibid 161; K McNeil, ‘Aboriginal Title and the Supreme Court: What’s Happening?’ (2006) 69 Saskatchewan Law Review 281, 307. 171   McNeil (n 158) 162; McNeil, ‘Aboriginal Title and the Supreme Court’ (n 170) 307. 172   McNeil (n 158) 156, 159. 173   ibid 148. 174   Slattery (n 157) 267, see also 264ff. 175   Where neither exclusive occupation of land nor Indigenous laws or customs in relation to land can be shown, the ‘practices and traditions integral to distinctive indigenous cultures at the time of European contact yet outside indigenous legal systems’ source applies: McNeil (n 158) 160. 176   Ibid 146, 148–49. 177   McNeil (n 1). 178   Mabo (n 3) 208–14. 179  Esp Delgamuukw (n 20). 180   McNeil (n 158) 153, 159–60, 164. 181   ibid 160; McNeil (n 170) 281; K McNeil, ‘Judicial Approaches to Self-Government since Calder: Searching for Doctrinal Coherence’ in H Foster, H Raven and J Webber (eds), Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver, UBC Press, 2007) 129–52; K McNeil, ‘The PostDelgamuukw Nature and Content of Aboriginal Title’ in K McNeil, Emerging Justice? (n 131) 102–35. Nevertheless, this conclusion still relies on McNeil’s acceptance of the English (feudal) doctrine of tenure as having been received as part of the law of Australia and the consequences of that doctrine’s application. 168 169



Second Limb of Common Law Aboriginal Customary Title 313 period of time. But it has certain sui generis aspects arising from the unique circumstances of the indigenous peoples.182

The sui generis aspects which distinguish Aboriginal title from a fee simple estate are those identified by Lamer CJ in Delgamuukw v British Columbia:183 it is communal;184 it is inalienable other than by surrender to the Crown;185 it arises from exclusive occupation pre-Crown sovereignty;186 and there is an inherent limit on the title which prevents the land upon which the title is based from being used in ways which are ‘irreconcilable’ with the indigenous ‘occupation of’ and ‘relationship’ with the land.187 For McNeil, however, the sui generis ‘inherent limit’ is problematic as it is neither supported by common law principles regarding possessory titles nor the Mabo decision.188 As a source of Aboriginal title, another weakness of the common law approach is that it does not resolve the ‘frozen rights’ problem concomitant with identifying Crown sovereignty as the time the rights became enforceable.189 McNeil suggests that the common law approach be modified in the same way as the custom approach: although Crown sovereignty is appropriate for determining the external dimension of Aboriginal title and thus its content vis-a-vis the rest of the world, the internal dimension of Aboriginal title and thus its content vis-a-vis the titleholders inter se would not be so limited.190 However, McNeil’s preferred approach to conceptualising Aboriginal title, which is based on Lamer CJ’s decision in Delgamuukw, involves a combination of the common law and custom approaches.191 Viewed externally, the common law applies to define and protect Aboriginal title vis-a-vis the Crown and others. Where Aboriginal title to land is based on the legal effect given to exclusive occupation by the common law, its external dimension ‘should not vary from one group to another, regardless of the content of [the relevant indigenous] laws and customs’.192 Rather, the title: [S]hould always amount to a right ‘against the whole world to possession, occupation, use and enjoyment’ (as the court declared in Mabo) or ‘to exclusive use and occupation . . . for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to the distinctive aboriginal cultures’ (as Chief Justice Lamer said in Delgamuukw).193   McNeil (n 158) 160.   Delgamuukw (n 20) [112]–[115], [125]–[132]. See McNeil, (n 158) 160; McNeil (n 170) 285–87. See also McNeil, ‘Post-Delgamuukw’ (n 181). 184   Delgamuukw (n 20) [115]. 185  ibid [129]. McNeil argues that it is also transferable to other Indigenous groups: K McNeil, ‘SelfGovernment and the Inalienability of Aboriginal Title’ (2002) 47 McGill Law Journal 473, 501–02; see also ch 3 n 315. 186   Delgamuukw (n 20) [114]. 187   ibid [125]–[132], esp [129]; McNeil, ‘Post-Delgamuukw’ (n 181) 116–22. 188   McNeil, ‘Post-Delgamuukw’ (n 181); McNeil (n 158) 160. 189   McNeil (n 158) 161. 190   ibid 163; McNeil (n 170) 307. 191   McNeil, ‘Post-Delgamuukw’ (n 181) 107; McNeil, ‘Aboriginal Title and the Supreme Court’ (n 170) esp 285–93, 307. McNeil has, however, noted that both the modified common law and custom approaches have their place: McNeil (n 158) 147. 192   McNeil (n 158) 159. 193   ibid. Note that McNeil is relying on the formal order made by the Mabo High Court; that the Meriam people of the Murray Islands are ‘entitled as against the whole world to possession, occupation, use and enjoyment of the lands’: Mabo (n 3) 217. The formal order made by the Court accorded with the declaration proposed by Brennan J: Mabo (n 3) 16 (Mason CJ and McHugh J on behalf of the majority of the Court). See McNeil (n 158) 148–49, 159. When discussing the origin and nature of native title, Brennan J’s judgment in Mabo referred to both Aboriginal laws/customs (Mabo (n 3) 58, see also 51–52, 60, 61–62) and exclusive 182 183

314  Common Law Aboriginal Customary Title Viewed internally, however, Aboriginal law applies to define the rights of the titleholders inter se.194 In Delgamuukw, Lamer CJ explained that since Aboriginal title is a ‘collective right to land held by all members of an aboriginal nation’ and ‘cannot be held by individual aboriginal persons’, decisions relating to the land are made by the Aboriginal community.195 It followed for McNeil that ‘Aboriginal title is vested in collective bodies that evidently have the legal personality necessary to hold property in their own right’.196 And relying on the decision in Campbell v British Columbia (Attorney-General),197 which identified the decision-making authority of Aboriginal communities as governmental in nature, McNeil concluded that this ‘must include authority to make laws in relation to land that would be applicable within the community’.198 That is, Aboriginal title ‘has a jurisdictional quality that distinguishes it from land titles held by private persons and corporations’.199 In terms of the content of Aboriginal title, therefore, its internal dimension confirms that the ‘rights would be dynamic in that they could be changed through exercise of the decision-making authority vested in the [Aboriginal] community’.200 Since McNeil’s preferred approach is influenced by Lamer CJ’s decision in Delgamuukw, the subsequent Supreme Court of Canada decision in R v Marshall; R v Bernard201 raised the question whether McNeil’s blended common law/Aboriginal law approach had been judicially replaced by a strict common law approach.202 It will be seen in chapter eight that McNeil’s conclusion that it has not is correct.203 The concept of Aboriginal title was complicated, rather than advanced, by the Marshall/Bernard decision, but the decision does not disturb the fundamental principles which emerge from McNeil’s analysis. Moreover, these fundamental principles also emerge from Slattery’s analysis which is based on general principles rather than any particular decipossession of land (Mabo (n 3) 51, see also 51–52, 61–62). Although McNeil suggests that Brennan J offered two sources for Aboriginal land rights ((n 158) 148), an alternative interpretation is that Brennan J regarded exclusive occupation to be pursuant to Aboriginal laws/customs. Note that McNeil has reconciled Brennan J’s approach: see above n 133. 194   McNeil (n 170) 293, 307. 195   Delgamuukw (n 20) [115]; McNeil (n 170) 286. 196   McNeil (n 170) 286. 197   Campbell v British Columbia (Attorney-General) 2000 BCSC 1123, (2000) 189 DLR (4th) 333 [134]–[138] (Williamson J); McNeil (n 170) 286, 293. In Campbell, Williamson J considered the constitutional validity of selfgovernment provisions in the Nisga’a Treaty and held that, since this decision-making authority was governmental in nature, there must be an inherent right of self-government in relation to Aboriginal title lands. cf R v Pamajewon [1996] 2 SCR 821 (SCC) where the Court assumed, without deciding, that s 35(1) of the Canadian Constitution includes self-government claims, and held that such claims had to meet the ‘integral to the distinctive culture’ test in R v Van der Peet (n 161) like other Aboriginal rights. In this context, it is import­ant to note the distinction in Canadian law between Aboriginal rights and Aboriginal title: when Aboriginal people have not occupied land sufficiently to obtain Aboriginal title, they may possess other more limited rights to engage in specific activities on the land (such as hunting, fishing or gathering for sustenance, ceremonial or trading purposes). This differentiation between rights and title is part of the single native title concept in Australian law. 198   McNeil (n 170) 291. McNeil has developed this concept through a reconceptualisation of the rights of Indigenous peoples as rights to territory that include inseparable land and governance rights: ‘Indigenous Land Rights and Self-Government: Inseparable Entitlements’ (Between Indigenous & Settler Governance Conference, University of Western Sydney, 18–20 August 2011). 199   McNeil (n 170) 286–87. 200   McNeil (n 158) 163. See also McNeil (n 170) 293, 307. McNeil also observes that the jurisdictional aspect of Aboriginal title explains why it is inalienable other than by surrender to the Crown: ‘only another government can acquire a title that is jurisdictional as well as proprietary’: (n 170) 287. See also McNeil (n 185). 201   Above n 20. 202   McNeil (n 170) 296–302, 308. 203   ibid 308. See also ch 8 text to n 456.



Second Limb of Common Law Aboriginal Customary Title 315

sion or judgment.204 Slattery’s analysis of the common law as the source of Aboriginal land rights does, however, depart from McNeil’s in a number of respects. For Slattery, although the common law approach translates Aboriginal land rights into rights known to English law, unlike McNeil’s conclusion, these rights are not limited to fee simple estates: easements and profits a prendre are further examples.205 Also for Slattery, the ‘translation’ aspect of the common law theory is its strength because it addresses all the questions raised by the custom approach regarding the collective external aspects of Aboriginal land rights exclusively by reference to the standard rules of English property law.206 Unlike McNeil, therefore, Slattery does not take into account the sui generis aspects of Aboriginal rights under the common law approach. Indeed, he acknowledges that this is the main weakness of the approach: There is the danger that, in translating Indigenous practices into English legal categories, something important will be lost in translation. . . . At the extreme, this approach may lead courts to favour European over Indigenous perspectives, forcing Indigenous practices into the procrustean bed of English legal categories and rejecting modes of use and occupation that do not ‘fit’.207

Slattery concludes his analysis of the common law and custom approaches by observing that while the common law approach provides a ‘measure of uniformity and certainty, it does so at the cost of diversity and flexibility; just as the custom-based approach secures flexibility by sacrificing uniformity and clarity’.208 For these reasons, he argues that a sui generis conception of Aboriginal title is more balanced and appropriate.209 According to Slattery’s sui generis theory, Aboriginal title is viewed as a ‘distinctive form of title’: a sui generis right at common law which is neither grounded in English property law nor based on traditional laws/customs of Indigenous groups.210 Rather, it represents a blend of the uniformity inherent in the common law approach and the diversity inherent in the custom approach. ‘Viewed externally, aboriginal title is a uniform right, which does not differ from group to group’.211 This is because Aboriginal title is a ‘distinctive body of common law’ that ‘bridged the gap between English and Indigenous legal systems and provided for their interaction’.212 Slattery defines common law ‘to indicate a body of law developed by custom and usage and articulated in judicial decisions, rather than as designating the common law of England, which traditionally had no conception of aboriginal rights’.213 He explains: As part of British colonial law, the common law of aboriginal rights was introduced automatic­ ally into British colonies upon their acquisition, irrespective whether their general legal systems 204   As a distinctive body of law developed by the policies and practices of the British Crown in its relations with Indigenous American nations during the 17th and 18th centuries, Aboriginal title became part of the colonial law governing the Crown’s relations with all of it overseas colonies: Slattery (n 157) 258. 205   ibid 267ff. 206   ibid 268. 207   ibid 268. Other weaknesses are identified by Slattery: ibid 269. 208   ibid 269. 209   ibid 269–71. 210   ibid 270. 211   ibid 270. 212   ibid 258. See also ibid 269–70. See also B Slattery, ‘The Generative Structure of Aboriginal Rights’ in JD White (ed), Moving Toward Justice: Legal Traditions and Aboriginal Justice (Saskatoon, Purich Publishing Ltd, 2008) 20, esp 25ff (reprinted from (2007) 38 Supreme Court Law Review (2nd) 595–628). 213   Slattery (n 157) 259.

316  Common Law Aboriginal Customary Title were based on Indigenous law, English law, French law, Roman-Dutch law, or some other system.214

Aboriginal title is, therefore, a generic right which was recognised at the time of Crown sovereignty.215 In other words, as a generic body of law applying automatically to a new colony when it was acquired, its external dimension was determined at the time the Crown acquired sovereignty.216 ‘Viewed internally’, however, ‘it delimits a sphere within which the customary legal system of each group continues to operate’, regulating the use of the land and evolving to meet changing circumstances.217 That is, the generic right of Aboriginal title provides the normative structure governing the specific rights of each group.218 However, unlike the generic right which arises at sovereignty, the specific bodies of customary law protected by the generic right are not static.219 Since customary land laws have the capacity to evolve under this theory, it preserves ‘a sphere of autonomy’ for Aboriginal people.220 The sui generis theory ‘views aboriginal title as an indivisible whole – an external framework or superstructure enclosing a sphere within which an Indigenous land regime may operate’.221 It confers an exclusive right to possess and use traditional lands for such purposes as the relevant Aboriginal group sees fit, subject to the inalienability of the land other than to the Crown.222 Importantly, the principles which emerge from Slattery’s sui generis theory of Aboriginal title are fundamentally the same as those which emerge from McNeil’s preferred approach to conceptualising Aboriginal title. Both McNeil and Slattery agree that a blended approach to conceptualising Aboriginal title is superior to a strict common law or strict Aboriginal law approach. McNeil expressly identifies the external dimension of Aboriginal title as being defined by the common law (analogous to a fee simple estate) and the internal dimension as being governed by continuing Aboriginal law.223 Although Slattery identifies Aboriginal title as a ‘distinctive body of common law’224 and thus ‘a common law right’,225 he suggests, without deciding, that it is not ‘a right held under English common law’.226 The implication from his own analysis, however, is that since Aboriginal title is part of British colonial law which applied automatically upon acquisition of any British colony irrespective of the legal regime applying pre-colonisation, Aboriginal title is part of the law which governed a new British possession: where English common law was introduced, therefore, it was necessarily part of the English common law. Indeed, the common law originated in England and countries that trace their heritage to England as former colonies of the British Empire use common law227   ibid. See also ibid 270.   Slattery, ‘Generative Structure of Aboriginal Rights’ (n 212) 39. 216   B Slattery, ‘Understanding Aboriginal Rights’ (1987) 66 The Canadian Bar Review 727, 736–41. 217   Slattery (n 157) 270. 218   Slattery (n 212) 29. 219   ibid 39. 220   Slattery (n 157) 270. 221  ibid. 222  ibid. 223   McNeil (n 170) 307. See also A Lokan, ‘From Recognition to Reconciliation: The Functions of Aboriginal Rights Law’ (1999) 23 Melbourne University Law Review 65. 224   Slattery (n 157) 269. 225   ibid 280. 226   ibid: ‘there is little in the jurisprudence to suggest that it is a right held under English common law’. 227   Examples include the United States, Canada, Australia, New Zealand, Singapore, Bangladesh, Pakistan, Sri Lanka, India, Ghana and Hong Kong. 214 215



Second Limb of Common Law Aboriginal Customary Title 317

except those that were formerly colonised by other nations and retained all or part of the formerly introduced civil law system under the doctrine of continuity pro-tempore228 – such as South Africa which initially followed Roman-Dutch law229 and is now one of the world’s mixed legal systems.230 Furthermore, although the common law of England traditionally had no conception of Aboriginal title, by definition, the common law is not static: to use Slattery’s own words, it is ‘a body of law developed by custom and usage and articulated in judicial decisions’.231 Thus, the development of English common law to encompass Aboriginal title merely demonstrates this principle. While it follows that, at least where English common law applies, both the external and internal dimensions of the title are part of English common law, Slattery emphasises that it is within the internal dimension of the title that Aboriginal legal systems continue to operate. McNeil and Slattery’s blended approach to conceptualising Aboriginal title effectively achieves the same result. The external dimension is uniform, not differing from group to group, because its content is determined at the time the Crown acquired sovereignty. The internal dimension evolves and adapts to meet changing circumstances because its content is not frozen at the time of Crown sovereignty: post-sovereignty Aboriginal land rights and the decision-making authority of Aboriginal groups are recognised. Crucially, by adopting a blended approach, both McNeil and Slattery’s conclusions are consistent with the development of the common law via custom: the common law confers a title to accommodate pre-sovereignty Aboriginal customary rights to land, the internal content of which continues to be developed by Aboriginal custom; the title is, therefore, sui generis. The content of Aboriginal customary title is consistent with the fundamental principles which emerge from McNeil and Slattery’s analyses. While it has been seen that Aboriginal customary title has an internal and external dimension, it is important to distinguish between the two branches of the external dimension: the two ways in which Aboriginal customary title can be accommodated within the post-sovereignty legal system. First, on the basis that English law relating to pre-feudal landholding, folkland, applies to land which is subject to pre-existing Aboriginal rights at sovereignty (‘folkland branch’). Secondly, on the basis that a traditional exception to the feudal doctrine of tenure, tenure in ancient demesne, applies to land which is subject to pre-existing Aboriginal title at sovereignty (‘ancient demesne branch’). It will be seen that although application of the two branches of the external dimension differ in theory, they effectively confer the same content. It will also be seen that both branches of the external dimension provide a normative structure recognised by the post-sovereignty legal system within which Aboriginal laws/customs continue to operate.

228   For a discussion of the doctrine of continuity pro-tempore as it applies to settled and conquered/ceded colonies see ch 3 text to nn 191, 212, 245, 265. Crucially, it will be seen that British acquisition of a colony which had been previously colonised by another nation is in an especial position: the doctrine of continuity pro-tempore is qualified to ensure that the doctrine of common law Aboriginal customary title automatically applies. In this context, the position in South Africa is examined below text to 346ff. 229   Other examples include Quebec, which follows the law of France in part, and Sri Lanka which follows Roman-Dutch law. 230   See R Zimmermann, ‘Synthesis in South African Private Law: Civil Law, Common Law and Usus Hodiernus Pandectarum’ (1986) 103 South African Law Journal 259. 231   Slattery (n 157) 259. See also above text to n 213.

318  Common Law Aboriginal Customary Title i  External Dimension: Folkland Branch The external dimension of Aboriginal customary title based on the folkland branch – and thus its content vis-a-vis the Crown and others – is determined at the time of Crown sovereignty. Since folkland is an allodial form of customary landholding in which land is held of no superior, viewed externally, the common law confers a generic allodial title which does not differ from one group to another, regardless of the specific content of the customary laws of each group.232 This is because Aboriginal customary title is a dis­tinctive body of common law which applies automatically upon acquisition of an inhabited settled colony (as a result of the modified doctrine of reception).233 Although sourced in pre-sovereignty laws/customs (which continue to operate within the internal dimension),234 Aboriginal customary title is accommodated in the post-sovereignty system by concepts known to that system. And folkland is a form of pre-feudal allodial landholding known to English law during the common law’s evolution. Because allodial title confers absolute ownership, the content of Aboriginal customary title under the folkland branch would always amount to a right ‘against the whole world to possession, occupation, use and enjoyment’ of the land. Although this expression of Aboriginal entitlement is consistent with the High Court’s formal order in Mabo235 which McNeil relied upon to describe the external content of Aboriginal title under his preferred approach,236 McNeil emphasised that the High Court’s expression of title was equivalent to a fee simple estate,237 not an allodial title. A fee simple estate is the greatest interest in land recognised under the feudal doctrine of tenure; it is the closest thing to absolute ownership in the context of interests derived from Crown grant. In practice, the owner of an estate in fee simple enjoys all the benefits of absolute ownership.238 Since allodial title also confers all the benefits of absolute ownership, its point of departure from a fee simple estate is its non-Crown derived source. Furthermore, it has been seen that one of the most significant features of folkland as a specific form of allodial landholding is that it is inalienable out of the holding group. This sui generis aspect of the external dimension of Aboriginal customary title based on the folkland branch further distinguishes it from a fee simple estate: it is inalienable other than to the Crown.239

232   cf Hepburn who argues that, in order to promote a pluralist property culture, the complete abolition of the feudal doctrine of tenure and its replacement with an allodial system of landholding is necessary: S Hepburn, ‘Disinterested Truth: Legitimation of the Doctrine of Tenure Post-Mabo’ (2005) 29 Melbourne University Law Review 1; S Hepburn, ‘Feudal Tenure and Native Title: Revising an Enduring Fiction’ (2005) 27 Sydney Law Review 49. 233   But see above n 125, below text to n 342ff. 234   See below text to n 243ff (Internal Dimension). 235   The formal order made by the Mabo High Court was that the Meriam people of the Murray Islands, are ‘entitled as against the whole world to possession, occupation, use and enjoyment of the lands’: Mabo (n 3) 217. The formal order made by the Court accorded with the declaration proposed by Brennan J at 76: Mabo (n 3) 16 (Mason CJ and McHugh J on behalf of the majority of the Court). Importantly, that entitlement to exclusive use and occupation was not limited in any way. Notwithstanding the actual order of the Court, Brennan J’s judgment did state that native title ‘is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory’: Mabo (n 3) 58. 236   See above n 193 and text. 237   McNeil (n 158) 160. 238   See, eg, Wik (n 2) 176 (Gummow J). 239   This is consistent with the general inalienability of Aboriginal title: see ch 3 text to n 315.



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ii  External Dimension: Ancient Demesne Branch The external dimension of Aboriginal customary title based on the ancient demesne branch – and thus its content vis-a-vis the Crown and others – is determined at the time of Crown sovereignty. Since tenure in ancient demesne is a form of landholding in which customary law pre-dating sovereignty continued to be recognised post-sovereignty as a title equivalent to an inalienable freehold estate, viewed externally, the common law applies to confer a generic inalienable fee simple title240 which does not differ from one group to another regardless of the specific content of the customary laws of each group. As with the folkland branch, this is because Aboriginal customary title is a distinctive body of common law which applies automatically upon acquisition of an inhabited settled colony (as a result of the modified doctrine of reception).241 Although sourced in pre-sovereignty laws/customs (which continue to operate within the internal dimension),242 Aboriginal customary title is accommodated in the post-sovereignty system by concepts known to that system. And tenure in ancient demesne is a form of landholding known to the common law akin to an inalienable fee simple estate. Because a fee simple interest confers all the benefits of absolute ownership, the content of Aboriginal customary title under the ancient demesne branch and folkland branch coincide: it always amounts to a right ‘against the whole world to possession, occupation, use and enjoyment’ of the land. The external dimension of title under the ancient demesne branch is also sui generis in the same two ways as title under the folkland branch: it is not derived from Crown grant and is subject to a restriction on alienability other than to the Crown. iii  Internal Dimension Within the external dimension of Aboriginal customary title (whether based on the folkland or ancient demesne branch) is the internal dimension of the title. The internal dimension defines the title’s content vis-a-vis the Aboriginal titleholders inter se. It is not fixed at the time of Crown sovereignty. Viewed internally, continuing Aboriginal customary law applies to define the rights and obligations within each Aboriginal group. Specific Aboriginal customary/legal systems not only continue to operate, they can also be changed through the decision-making authority vested in the group. In this context, Brennan J’s judgment in Mabo confirmed that Aboriginal people had sovereign lawmaking authority in Australia before the Crown acquired sovereignty (at least in relation to land).243 Because Aboriginal customary rights continue to evolve and adapt, post-sovereignty Aboriginal land rights are recognised.244 Thus, the generic external 240   Although all three types of freehold estates (fee simple, life estate and fee tail) existed at the date the Crown acquired sovereignty over Australia, the fee tail has been abolished by statute. And anything less than a fee simple interest would be inconsistent with Aboriginal customary title being accommodated within the post-sovereignty legal regime because a particular Aboriginal group’s laws/customs upon which title to land is based continue to exist until the last member of the group dies: see below text to nn 283–85. 241   But see above n 125, below text to n 342ff. 242   See below text to n 243ff (Internal Dimension). 243   Brennan J affirmed that recognition of native title had been denied in a settled yet inhabited colony because of the fiction ‘that there was no law before the arrival of the British colonists in a settled colony and that there was no sovereign law-maker in the territory of a settled colony before sovereignty was acquired by the Crown’: Mabo (n 3) 58. 244   Because Aboriginal customary rights to land can give rise to a common law title where the existence of such title arose after the acquisition of sovereignty under the first limb – on the basis that customary rights

320  Common Law Aboriginal Customary Title dimension which arises at sovereignty provides the normative structure governing the specific Aboriginal laws/customs of each group, which are dynamic.245 It has been seen that both branches of the external dimension explain why Aboriginal customary title is inalienable other than to the Crown. This is consistent with the jurisdictional aspect of the internal dimension: ‘only another government can acquire a title that is jurisdictional as well as proprietary’.246 To sum up: in the context of McNeil’s suggestion that the content of Aboriginal title is determined by its source,247 because Aboriginal customary title has its origin in presovereignty Aboriginal laws/customs, its content vis-a-vis the titleholders inter se (the internal dimension) is defined by continuing Aboriginal law/customs. Because Aboriginal customary title is accommodated within the legal system imposed as a consequence of Crown sovereignty, its content vis-a-vis the Crown and third parties (the external dimension) is defined by concepts known to that legal system – whether based on the folkland or ancient demesne branch, it confers absolute ownership of land for any purpose whatsoever subject to the qualification that it is inalienable other than to the Crown. The source of Aboriginal customary title can, therefore, be (re)stated as the relationship between pre-existing Aboriginal laws/customs and the common law.248 C  Proof of Aboriginal Customary Title i  Test for Proof It has been seen that Aboriginal customary title has its origins in pre-sovereignty Aboriginal legal/customary systems. The laws/customs of identifiable Aboriginal groups relating to particular land are ipso facto derived from these systems. A fortiori, an identifiable Aboriginal group in occupation of land pre-sovereignty had a system by which land utilised in a meaningful way was determined by the group.249 Because it is not appropriate to expect a system which is beyond that inherent in Aboriginal occupation or that Aboriginal occupation was ‘normative’ in every case,250 there is no requirement to prove that

analogous to incorporeal hereditaments become the common law – recognition of post-sovereignty Aboriginal land rights is an inherent aspect of title under the first limb. Furthermore, there is no distinction between the internal and external dimensions of the title: the dimensions merge. The Aboriginal customary land rights which continue under the internal dimension inform and become the external dimension. The external dimension can, therefore, differ from group to group. 245   It will be seen that because Aboriginal law becomes law within the internal dimension, common law concepts such as ‘normative content’, ‘occupation’ and ‘possession’ are irrelevant: below text following n 294. 246   McNeil (n 170) 287. See also above n 200. 247   See above n 158 and text. 248   It will be seen in ch 8 that ‘the relationship between common law and pre-existing systems of aboriginal law’ was suggested as ‘a second source for aboriginal title’ in Delgamuukw (n 20) [114] (Lamer CJ): see discussion in ch 8 text to n 298ff, see also text to nn 247ff, 261 (pre-Delgamuukw). cf J Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto, University of Toronto Press, 2002) 5, 12: in identifying the ‘mechanisms that are currently in place to allow for the communication, interpretation, reception, and application of First Nations law in Canada’, Borrows argues that ‘[s]ince one source of Aboriginal rights is “the relationship between common law and pre-existing systems of [A]boriginal law,” Canadian courts and lawmakers charged with developing Aboriginal rights law must grapple with First Nations laws and legal perspectives’. 249   See above n 128 and text. 250   See above n 129 and text.



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Aboriginal occupation of land was part of a certain kind of system.251 Aboriginal occupation of land need only be part of a system of laws/customs by which land was used in a meaningful way from the Aboriginal perspective: purposive occupation.252 The common law requirements for proving occupation (including requirements of physicality) are not authoritative.253 Purposive occupation must have been to the exclusion of other Aboriginal groups from the Aboriginal perspective: the relevant land must be an identifiable group’s ancestral land as distinguished from land of an unconnected Aboriginal group.254 The Aboriginal perspective is appropriate for determining what constitutes meaningful use of land and exclusivity255 because before the Crown asserted sovereignty there was no other perspective. The pre-sovereignty laws/customs of an identifiable Aboriginal group pursuant to which land was purposively occupied is the foundation of Aboriginal customary title.256 Purposive occupation (a matter of law) is presumed from the existence of laws/customs pursuant to which land was used in a meaningful way (a matter of fact). Proof of the existence of pre-sovereignty laws/customs upon which purposive occupation is based is the threshold question.257 It raises a presumption of Aboriginal customary title which the common law protects by conferring a generic external title within which the specific Aboriginal laws/customs continue to operate;258 the substance of the laws/customs is irrelevant to the threshold question. There is no requirement to identify each and every element of the laws/customs or to identify the rights regarding land which are possessed

251   Indeed, such a requirement would be tantamount to resurrecting the redundant ‘scale of social organisation’ reasoning in Re Southern Rhodesia [1919] AC 211 (PC). See also Young (n 25) 340, 345–47, 365–68 who identifies strong reasons for avoiding a restrictive ‘system of rules’ approach in the native title context. 252   See below n 130 and text. This precludes indiscriminate ranging over land. See Toohey J’s comments regarding occupation of land in the context of native title: Mabo (n 3) 187–90. 253   Although existing jurisprudence on what constitutes occupation is not authoritative (whether at common law generally or under the conventional doctrine of Aboriginal title) it has nevertheless provided guidance as to what constitutes meaningful use of land by Aboriginal people. After outlining the requirements for proof of occupation at common law, McNeil applied the criteria to a group of Aboriginal hunter-gatherers who habitually and exclusively ranged over a definite tract of land, concluding that ‘visiting religious sites and exploiting natural resources in accordance with their own interests and way of life, would have been occupation of that land. Where others were allowed access upon request, the very fact that permission was asked for would be further evidence of the group’s exclusive control. Isolated acts of “trespass”, on the other hand, would not interfere with the group’s occupation, particularly if unnoticed or not worth preventing. As to the extent of their occupation, it would include not just land in actual use by them at any given moment, but all land within their habitual range, for occupation, once acquired, is not necessarily lost by temporary absence (particularly if seasonal), so long as the intention and capacity to retain exclusive control and return to the land continue, and no one else occupies in the mean time’: McNeil, (n 1) 203–04. McNeil cites the Canadian case, R v Ross [1986] 2 CNLR 142 (Sask Prov Ct) 145, where Ferris JPC stated: ‘to be “occupied” land must, in fact, and bona fide, be utilized for a purpose, whether it be a game preserve or some other purpose. It is not required that that purpose imply the inhabitation, or even the presence of people, buildings, or machines, continuously, or at all’. Crucially, therefore, leaving land temporarily vacant while nature (flora or fauna) replenishes itself is a useful purpose. 254   See a similar conclusion by La Forest J in Delgamuukw (n 20) [196]. 255   The requirement for exclusivity does not, however, exclude two or more Aboriginal groups from being co-owners, provided they do not dispute the purposive occupation. Toohey J’s concurring judgment in Mabo accepted the concept of shared exclusivity: Mabo (n 3) 189–90 referring to United States v Santa Fe Pacific Railroad Co 314 US 339, 345 (1941) (USSC). The concept was also accepted in Delgamuukw (20) [1103]–[1106] (Lamer CJ), [1129] (La Forest J). See also McNeil, ‘Relevance of Traditional Laws and Customs’ (n 131) 420 fn 17. The liberal approach to ‘occupancy’ and ‘exclusivity’ in the United States is discussed by Young (n 25) Pt II. 256   See above n 131 and text. 257   See also Mabo (n 3) 187–88 (Toohey J). 258   The external and internal dimensions of Aboriginal customary title respectively.

322  Common Law Aboriginal Customary Title under those laws/customs as there is in native title claims.259 Moreover, because proof of the existence of laws/customs upon which purposive occupation is based raises a presumption of Aboriginal customary title, the title is not formulated around specifically proven incidents of occupation as it is in conventional Aboriginal title claims. The general approach to proof of Aboriginal customary title overcomes the problem, identified by Young, inherent in ‘over-specificity’ in the definition of the Aboriginal interest in land through application of a strict tradition-based methodology in Australian native title jurisprudence – that it restricts the possibility of finding a full Aboriginal ‘title’.260 It will be seen that the more specific aspects of proof of Aboriginal customary title overcome the problem Young has identified in relation to ‘over-particularity’ in the continuity and constancy of laws/customs requirements for establishing native title – that it limits a finding of any Aboriginal entitlement at all.261 ii  Specific Presumptions and Rules Relating to Proof The burden of proving the existence of pre-sovereignty laws/customs upon which purposive occupation (and thus title) is based is reduced by the application of specific presumptions relating to proof of customs at common law. McNeil has comprehensively explained that there are especial common law rules regarding proof of title to land: title is presumed from possession and possession is title as against anyone who cannot prove they have a better title.262 Since possession (a matter of law) is presumed from occupation (a matter of fact), proof of occupation raises a presumption of a valid title.263 Although McNeil has convincingly argued that these rules should apply equally to Aboriginal title and Crownderived title,264 judicial pronouncements on Aboriginal title have yet to unconditionally endorse this approach.265 Crucially, however, the presumptions which apply in circum259  See Ward (n 14) [18] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); De Rose v South Australia [2002] FCA 1342; Daniel v Western Australia [2003] FCA 666 [510]–[520], [1163] (Nicholson J). In the context of native title jurisprudence, Young argues that ‘once the tendency to over-specificity in the definition of the native title interest is corrected, particularised laws and customs become somewhat irrelevant to the substance of the interest’: (n 25) 313–14. For critical comment on the ‘over-specificity’ in the definition of the native title interest see Bartlett, Native Title in Australia (n 27) 212; Young (n 25) 208, 291–314, 351–58. Bartlett points out that in Mabo ‘[t]here was no requirement of a specific delineation of traditional laws and customs, but rather an acknowledgment that the society had “substantially maintained” its “traditional connection with the land”’: Native Title in Australia (n 27) 211. 260  See Young (n 25) esp 208, 291–312, 351–58. See also PG McHugh, Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (New York, OUP, 2011) 146. 261   See Young (n 25) esp 208, 312–36, 358–65. See also R Bartlett, ‘An Obsession with Traditional Laws and Customs Creates Difficulty Establishing Native Title Claims in the South: Yorta Yorta’ (2003) 31 University of Western Australia Law Review 35; McHugh, Aboriginal Title (n 260) 125–33. 262   McNeil (n 1) ch 2. 263   On the difference between possession and occupation see ibid 197–204. 264   For eg, K McNeil, ‘The Onus of Proof of Aboriginal Title’ (1999) 37 Osgoode Hall Law Journal 775 (reprinted in McNeil, Emerging Justice? (n 131) 136–60); McNeil (n 79) 136–37, 140. 265  In Delgamuukw (n 20) although Lamer CJ cited McNeil in support of ‘the common law principle that occupation is proof of possession in law’ (at [114]), the Chief Justice required additional proof if present occupation was relied upon to prove Aboriginal title: the requirement to show ‘continuity between present and pre-sovereignty occupation’ (at [152]). McNeil has, however, persuasively argued that any requirement for Aboriginal people to prove continuity of their occupation offends common law principles: McNeil (n 79) 140. McNeil has also shown that Lamer CJ’s requirement of proving continuity is limited to situations where present (post-sovereignty) occupation is relied upon to prove occupation at sovereignty. If there is sufficient evidence of exclusive occupation at Crown sovereignty, at common law Aboriginal title vests in the Aboriginal group at sovereignty: ibid 136–37. Note that McNeil’s test regarding the standard of occupation for Aboriginal title was applied by the majority of the Nova Scotia Court of Appeal in R v Marshall 2003 NSCA 105, (2003) 218 NSR (2d) 78 [138] (Cromwell JA, Oland JA concurring).



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stances where it is necessary at common law to establish proof of custom dating back to ‘time immemorial’266 have been judicially applied in the context of proof of native title claims. Judicial application of these presumptions has been both express267 and implied.268 In Gumana v Northern Territory,269 (the late) Justice Selway expressly applied such presumptions. Referring to oral evidence of a custom consisting of what Mr Gumana and other Yolngu witnesses were told by their fathers and other elders, Selway J explained that, on its face, this evidence was not able, by itself, to establish what the facts actually were at 1788 and all that it might be able to establish is that the witnesses and relevant elders believed there was a long standing custom that pre-dated them.270 Importantly, however, he observed: This problem is one that is well known to the common law. There are a number of circumstances where it was necessary at common law to establish proof of custom dating back not just to the 18th century, but to ‘time immemorial’. Proof of copyhold was one example . . . Another . . . was the proof of ancient custom as a means of establishing either prescription or ancient lost grant ‘from time immemorial’. . . . There were others . . . Like the evidence called to prove Aboriginal custom, the evidence called to prove the exist­ ence of a custom from ‘time immemorial’ for the purposes of the common law was often oral evidence and it was subject to the same difficulties in relating that evidence back – although not just to the 18th century, but to the 12th and 13th centuries. In practice those difficulties were ameliorated by the readiness of the common law courts to infer from proof of the existence of a current custom that that custom had continued from time immemorial.271

It has been seen that in the context of the older English authorities which determined that evidence of a custom existing as far back as living witnesses could remember raised a presumption that the custom existed from the beginning of legal memory, there was no requirement for ‘proof of the existence of a current custom’ because, once acquired, a customary right could not be lost by disuse or abandonment.272 Nevertheless, Selway J emphasised that the ‘inference was a strong one’: It is impossible to prove the actual usage in all time by living testimony. The usual course taken is this: Persons of middle or old age are called, who state that, in their time, usually at least half a century, the usage has always prevailed. That is considered, in the absence of countervailing evidence, to show that usage has prevailed from all time.273

He also explained that ‘some of the more ancient commentators express[ed] the relevant rule in the negative. Coke, for example, define[d] “time out of mind” as “time whereof there is no memory of man to the contrary”’.274 Selway J concluded that   See above text to nn 65–69.   Gumana v Northern Territory [2005] FCA 50, (2005) 141 FCR 457 [195]–[202] (Selway J); Griffiths v Northern Territory [2006] FCA 903, 165 FCR 300 [574]–[584] (Weinberg J). See also McNeil (n 79) 139 (establishing Aboriginal rights under the conventional doctrine of Aboriginal title). 268   Mason v Tritton (1994) 34 NSWLR 572 (NSWCA) 588 (Kirby P); YarmirrFC (n 34) [66] (Beaumont and von Doussa JJ), [562]–[563] (Merkel J); De Rose v South Australia [2003] FCAFC 286, 133 FCR 325 [259] (Wilcox, Sackville and Merkel JJ) citing Yorta Yorta (n 14) [59]; Lardil Peoples v Queensland [2004] FCA 298 [116]ff (Cooper J). cf Moses v Western Australia [2007] FCAFC 78, 160 FCR 148 [322]ff (Moore, North and Mansfield JJ). 269   Above n 267. 270   Gumana (n 267) [196]. 271   ibid [197]–[198]. 272   See above nn 79, 80 and text. 273   Gumana (n 267) [198] quoting Jessel MR in Hammerton v Honey (n 57) 604. 274   ibid [199]. Selway J also observed (at [200]): ‘It is to be noted that in the case of prescription in particular, the evidentiary inference applies not just to the prescription but to the rights created pursuant to it’. 266 267

324  Common Law Aboriginal Customary Title [t]here is no obvious reason why the same evidentiary inference is not applicable for the purpose of proving the existence of Aboriginal custom and Aboriginal tradition at the date of [sovereignty] and, indeed, the existence of rights and interests arising under that tradition or custom.275

Presumptions relating to proof of customs from time immemorial apply in the context of establishing common law rights. The oral evidence in Gumana raised a presumption of the existence of Aboriginal custom (and rights arising under the custom) at the date of sovereignty in the context of native title which, although originating in pre-sovereignty laws/customs, does not confer common law rights.276 Since Aboriginal customary title has its origins in pre-sovereignty laws/customs and also confers common law rights, presumptions relating to proof of customs at common law are more relevant in this context.277 However, under the doctrine of Aboriginal customary title oral evidence of laws/ customs (upon which purposive occupation and thus title is based) existing as far back as living witnesses can remember raises a presumption that the laws/customs and concomitant title existed before sovereignty. The mere existence of Aboriginal laws/ customs (and rights arising thereunder) at the date the Crown asserted sovereignty is fundamentally and logically inconsistent with a title pre-dating Crown sovereignty: Aboriginal customary title only exists as a legal right before Crown sovereignty because it is based upon pre-sovereignty laws/customs. Selway J’s conclusion in Gumana that the oral evidence raised a presumption of the existence of Aboriginal custom and concomitant native title rights at the date of sovereignty related to the requirement in native title claims (imposed by Yorta Yorta) to prove the maintenance of a traditional connection with land through ‘continued’ acknowledgment and observance of laws and customs ‘substantially uninterrupted since sovereignty’.278 Selway J explained that although the mere assertion of a custom was not necessarily sufficient to establish the continuity of the custom back to the date of settlement, where there was: [A] clear claim of the continuous existence of a custom or tradition that has existed at least since settlement supported by creditable evidence from persons who have observed that custom or tradition and evidence of a general reputation that the custom or tradition had ‘always’ been observed then, in the absence of evidence to the contrary, there is an inference that the tradition or custom has existed at least since the date of settlement.279

The requirement to prove that a custom has continued to be observed since sovereignty constitutes a significant limitation on the extent to which native title can be (and 275   ibid [201]. See also Lester, The Territorial Rights of the Inuit of the Canadian Northwest Territories (n 12) 884–906. The issue of the admissibility of oral histories evidence in Canadian courts is considered in ch 8 text to n 393ff. 276   See also Griffiths (n 267) [570]–[585] (Weinberg J) referring to Gumana. 277   cf McNeil (n 79) 140 (suggestion that the presumptions relating to proof of customs at common law do not apply to proof of title to land). It can, nevertheless, be argued that since Aboriginal customary title is sui generis, it is not restricted by the rules applying to proof of feudal conceptions of title to land. 278   Yorta Yorta (n 14) [86]–[87] (Gleeson CJ, Gummow and Hayne JJ). See also ibid [43]–[44]. cf the explanation ibid [88]. The majority in Yorta Yorta did accept that an interruption in the enjoyment or exercise of native title rights will not necessarily be fatal to a native title claim: ibid [83]. See also Mabo (n 3) 59–60, 70 (Brennan J); Ward v Western Australia (n 27) 500, 544 (Lee J). For critical comment on the ‘continuity’ requirement see Young (n 25) 358–65; S Young, ‘Tides of History and Jurisprudential Gulfs: Native Title Proof and the Noongar Western Australia Claim’ (2010) 8 Indigenous Law Journal 95, 101–11. For a critical analysis of the Yorta Yorta decision see Young (n 25) 307ff. 279   Gumana (n 267) [201].



Second Limb of Common Law Aboriginal Customary Title 325

is) recognised.280 It is, however, the antithesis of the position under the doctrine of Aboriginal customary title. Not only does the continuity limb of the doctrine of continuity pro-tempore ensure that the title Aboriginal people had to land by virtue of their own laws/customs before Crown sovereignty continues post-sovereignty, but if it is proved that a customary right (pursuant to which purposive occupation and thus title is based) existed before the beginning of a period of non-user (including non-user for 100 years) it comes within the well-established rule that once a customary right has been acquired it cannot be lost by disuse or abandonment.281 Since Aboriginal customary title is based upon customary rights acquired pre-sovereignty, there is no requirement to prove continuity of observance of laws/customs substantially uninterrupted since sovereignty.282 In this context, Amankwah has observed that ‘it is possible for a people to abandon their land if the abandonment is accompanied by animus diserandi et relinquandi; but their custom does not vanish until the people . . . become extinct’.283 While Selway J applied presumptions relating to proof of customs at common law in Gumana, the jurisprudence regarding native title prevented application of the rule that a customary right, once acquired, cannot be lost by disuse or abandonment. Indeed, Brennan J’s oft-quoted summary in Mabo makes it clear that native title to an area is extinguished not only on the death of the last members of the group but also where a group has ceased to maintain a substantial connection with the land through acknow­ ledgment and observance of their laws/customs.284 Crucially, while native title may be extinguished permanently, the continuing Aboriginal laws/customs upon which native title was based are capable of recognition under the doctrine of Aboriginal customary title. Indeed, this proposition is supported by Kirby J’s observation in Fejo that even when a fee simple interest is of its legal nature incompatible with the continuance in respect of the same land of the fragile native title right which the Australian legal system will recognise . . . the bundle of interests we now call ‘native title’ would [doubtless] continue, for a time at least, within the world of Aboriginal custom.285

In addition to there being no requirement to prove continuity of observance of laws/ customs post-sovereignty in order to establish Aboriginal customary title, there is no requirement to prove constancy of laws/customs. While continuity and constancy are not necessarily correlatives, after Yorta Yorta it became clear that in the context of   See the cases which have applied the Yorta Yorta continuity test cited by McHugh (n 260) 127 fn 61.   See above text to nn 79, 80. 282   It has been seen that the rule that once a customary right has been acquired it cannot be lost by disuse or abandonment also applies in the context of the first limb of the doctrine of common law Aboriginal customary title: above text to nn 79, 80, 121, 123. Since the first limb recognises Aboriginal title based upon customs acquired post-sovereignty, there is no requirement to prove continuity of observance of customs substantially uninterrupted since sovereignty. 283   Amankwah (n 30) 32. See also McNeil (n 79) 137–38 (conventional Aboriginal title cannot be lost by discontinuance amounting to abandonment). Young (n 25) 324 fn 218 has observed that ‘[o]nce it is acknow­ ledged that the relevant law or custom might be simply the traditionally based assertion of “ownership” or custodianship, the use of the term “abandon” in describing its cessation is less objectionable’. cf Yorta Yorta (n 14) [90]–[91] (Gleeson CJ, Gummow and Hayne JJ) where the use of the term ‘abandonment’ in the context of the loss of laws and customs was criticised on the ground that it invites inquiry into why acknowledgment and observance of law and custom has ceased. 284   Mabo (n 3) 70 (Brennan J): ‘Native title . . . is extinguished if the clan or group, by ceasing to acknow­ ledge those laws . . . and (so far as practicable) observe those customs, loses its connection with the land or on the death of the last members of the group or clan’ (emphasis added). 285   Fejo (n 11) [106]. 280 281

326  Common Law Aboriginal Customary Title native title claims they are.286 Despite stating that some change or adaptation of laws/ customs post-sovereignty would not necessarily be fatal, the Yorta Yorta majority emphasised that the critical test is whether the laws/customs could still be seen to be those observed at sovereignty.287 The justification for the continuity/constancy requirement of proof in native title claims is that the relevant laws/customs must ‘have been transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land’.288 The jurisprudential basis for the justification is that the traditional laws/customs under which rights to land are said to be possessed ‘must be rules having normative content’ as opposed to ‘observable patterns of behaviour’.289 It is ‘the normative quality’ of the rules ‘which rendered the Crown’s radical title acquired at sovereignty subject to the rights and interests then existing and which now are identified as native title’.290 But, the assertion of sovereignty by the British Crown also necessarily entailed ‘that there could thereafter be no parallel law-making system in the territory over which it asserted sovereignty’.291 In contradistinction, the jurisprudential basis for Aboriginal customary title is that presovereignty laws/customs pursuant to which land occupied was used in a meaningful way from the Aboriginal perspective establish a title pre-dating Crown sovereignty which continues post-sovereignty and is given the force of law by the common law. The significance of the date the Crown asserted sovereignty is that this is when the pre-existing title is accommodated within the legal regime imposed as a consequence of sovereignty (the common law). The jurisprudential basis thus gives rise to the external and internal dimensions of the title which, by definition, are incongruous with the requirements to prove continuity and constancy of laws/customs since sovereignty. Because the external dimension of Aboriginal customary title defines and protects the title vis-a-vis the Crown and others, at sovereignty the common law confers an external generic allodial292 or inalienable fee simple293 title which provides a normative structure within which Aboriginal laws/customs continue to operate. Because the internal dimension of Aboriginal customary title defines its content vis-a-vis the titleholders inter se by Aboriginal laws/customs which continue to evolve and adapt to meet changing circumstances, post-sovereignty rights are recognised. Indeed, the common law has always recognised the capacity of immemorial customs to evolve.294 And because Aboriginal laws/customs are part of the substantive law of Australia within the internal dimension, conventional common law concepts such as ‘normative content’, ‘occupation’ and ‘possession’ are juridically irrelevant. In order to establish Aboriginal customary title, the Aboriginal group claiming title to particular land need only establish a connection to an identified group with a pre-­ 286   Yorta Yorta (n 14) [86] (Gleeson CJ, Gummow and Hayne JJ): ‘it is important to bear steadily in mind that the rights and interests which are said now to be possessed must nonetheless be rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by the peoples in question. Further, the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs. . . . “traditional” in this context must be understood to refer to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty’. See also ibid [44]. 287   ibid [83]. 288   ibid [87]. 289   ibid [42]. 290   ibid [88]. 291   ibid [44]. 292   See above text to n 232. 293   See above text to n 240. 294   See above text to n 76ff.



Second Limb of Common Law Aboriginal Customary Title 327

sovereignty entitlement to the particular land. There is no requirement for a continuance of the pre-sovereignty manifestation of the group.295 The continuity/constancy requirement in native title claims has played a major part in perpetuating the injustices caused by ‘settlement’ of the inhabited territory of Australia which, until 1992, meant that the common law completely disregarded the original inhabitants’ land rights. It has precluded recognition of Aboriginal rights to land where laws/customs which have undergone change to cope with post-colonisation realities are regarded as having lost their traditional character and where laws/customs are no longer observed as a direct result of the impact of colonisation. This is especially evident in cases involving Aboriginal groups who, despite significant resistance, have experienced considerable post-sovereignty cultural change due to their proximity to white civilisation. The Darug people in Gale v Minister for Land & Water Conservation for New South Wales296 provide the quintessential example. The Darug case involved an application for a determination of native title over a small area of land (10 hectares) on the outskirts of Sydney. Each member of the Darug people claimed lineal descent from the occupiers and possessors of the Sydney area prior to European settlement. ‘The original occupiers and possessors had traditional spiritual, social and economic rights over their land’.297 It was accepted that, at the time of sovereignty, ‘the lands generally surrounding the claim area and the Sydney basin in general were inhabited by organised communities of Aboriginal people’ and ‘the aboriginal inhabitants had rights and interests in the subject lands, sourced in traditional laws and customs’.298 Moreover, the Minister for Land and Water Conservation for the State of New South Wales properly conceded on the evidence that: native title did exist throughout much of the Sydney basin in 1788 . . . that there were elaborate laws and customs which underpinned that native title, and that native title was most tenacious. It did not disappear in the immediate onslaughts in the 1790s or the early [nineteenth] century. It took 50 or 60 years at least before the tenacious group of Aboriginal law and native title lost sway . . . [It] lost sway because of the enormous loss of life brought about, largely through disease, but also through massacre and the like . . . [probably coupled with] the policies, even at that early stage, of trying to assimilate part Aboriginal people into the broader non-Aboriginal society.299

Madgwick J relied on the anthropological evidence of Professor Ward (an expert in the interaction of Indigenous cultures with European colonists in Oceania, with a particular interest in land tenure) who also accepted that ‘despite all the upheavals, dislocation and loss, Aboriginal society in the greater Sydney region was still overwhelmingly traditional in nature before about 1840’.300 The crucial point is that no one doubted that at the time of sovereignty and for at least 50 or 60 years thereafter the Aboriginal inhabitants had rights to the subject lands sourced in traditional laws/customs. The only issue was whether there had been ‘the requisite continuity of [a pre-sovereignty] society and acknowledgement of traditional laws and observance of traditional customs?’301 And, 295   cf the restrictive interpretation of the concept of ‘society’ in the context of the constancy/continuity requirements in native title jurisprudence in Yorta Yorta (n 14) [49], [50], [52]–[54] (Gleeson CJ, Gummow and Hayne JJ). See also Toohey J’s emphasis on the original society in Mabo (n 3) 187–88; Young (n 25) 317ff. 296   Gale v Minister for Land & Water Conservation for New South Wales [2004] FCA 374 (Darug case). 297   ibid [3] (Madgwick J). 298   ibid [34]. 299   ibid. See also [74]–[80]. 300   ibid [92]. 301   ibid [37].

328  Common Law Aboriginal Customary Title applying the Yorta Yorta test in 2004, Madgwick J held that the Darug people no longer constituted a society observing traditional laws/customs. The relevant change in the Aboriginal society occurred because of the effects of a new wave of epidemic diseases commencing in the late 1820s and ending in the 1840s.302 ‘[M]ost of the “full-bloods” died’ and ‘[i]n the 1840s, the survivors came together in new associations, in which old enmities were largely dropped, and, importantly, the formerly-despised mixed-race were not only accepted, but soon assumed leadership roles’.303 Madgwick J noted that although Professor Ward observed that ‘it would likely be difficult under those circumstances for Aboriginal tradition to exist strongly’, he accepted ‘that “bloodline”, does not, of itself, carry with it (nor, inferentially, necessarily prevent the continuance of) cultural traits and values, which are very much the product of upbringing’.304 The Aboriginal communities were ‘recognizably Aboriginal social formations, but of new and different kinds’.305 Professor Ward’s evidence showed that ‘there [was] nothing in the documentary record so far researched or disclosed to suggest that people’s lives were greatly affected by . . . remnant, traditional values and beliefs’.306 Instead, there was ‘a good deal of information confirming their work in the wider community, their schooling, their church-going and their use of the regular medical services’.307 While Madgwick J expressed the opinion that the relevant families of Aboriginal descent ‘were a remarkable group of people, forebears of whom anyone who values courage, endurance and capacity to adapt might be proud’,308 Professor Ward considered that ‘they were really remarkable for their rapid assimilation into the broader community’.309 In the Darug case it was at least 50 or 60 years after sovereignty before Aboriginal cultural identity and laws/customs eventually lost sway due to the impact of European settlement. And in Yorta Yorta, the High Court did not disturb the trial judge’s finding that it was in the late-nineteenth century that the effects of colonisation had altered the laws/customs of the claimant’s ancestors to such a degree that there was insufficient continuity of laws/customs to support a native title claim. The facts of the Darug case and Yorta Yorta confirm that a requirement for continuity/ constancy of laws/customs since sovereignty (1788) undermines a ‘retrospective’ test for Aboriginal title developed more than two centuries after sovereignty. The purpose of retrospectively recognising native title on 3 June 1992 was to remedy the injustices caused by the fact that, from sovereignty until then, Aboriginal claims to land ‘were “utterly disregarded” by the existing authorities’ because Australia was regarded as a desert and uninhabited colony.310 Not only is a continuity/constancy since sovereignty requirement discordant with remedying injustices caused by the acquisition of sovereignty, it commits another grave injustice: despite dispossession and subjection to invasive and strong nonAboriginal cultural influences, the tenacious persistence of Aboriginal groups to retain their self-identity and observe their laws/customs for decades, even a century, after sover  ibid [75].   ibid [93]. 304   ibid [94]. 305   ibid [95]. 306  ibid. 307  ibid. 308   ibid [96]. 309  ibid. 310   Mabo (n 3) 40 (Brennan J). See also ibid 36. 302 303



Second Limb of Common Law Aboriginal Customary Title 329

eignty is utterly ignored. Developing a test for proof of Aboriginal rights to land which requires continuity/constancy of observance of laws/customs after the ‘tide of history’ has washed away any observance of such laws/customs is simply another way of ‘utterly disregarding’ Aboriginal claims to land. The doctrine of Aboriginal customary title redresses this inherent and intractable problem in native title claims. Only by recognising that the title to land Aboriginal people had by virtue of their own laws/customs before Crown sovereignty continued post-sovereignty as substantive law without imposing additional non-Aboriginal requirements for its continuation can the process of remedying the injustices caused by the acquisition of sovereignty over an inhabited settled colony begin. This proposition is highlighted by the Darug case. The Darug people clearly had title to the claimed land pursuant to their own laws/customs before Crown sovereignty. Moreover, in the context of their native title claim, it was conceded that the Darug people had pre-existing native title which continued post-­ sovereignty for at least half a century. Nevertheless, in 2004 their native title claim was denied because they had ceased to observe the laws/customs which might otherwise have provided a basis for their claim. The facts would, however, support an Aboriginal customary title claim to the subject land. The emphasis in the Darug case was on the documentary record rather than oral Aboriginal testimony. This was also the case in Yorta Yorta: the trial judge’s finding of fact that there was insufficient continuity of laws/customs to support a native title claim privileged documentary evidence over oral testimony. In contrast, it has been seen that the doctrine of Aboriginal customary title (and the Federal Court in Gumana) recognise that courts should approach the rules of evidence and interpret the evidence that exists in light of the difficulties in proving a title originating in times when there were no written records. It will be seen in chapter eight that Canadian jurisprudence has also made it clear that, because ‘most aboriginal societies “did not keep written records”’, when courts adjudicate Aboriginal title cases ‘the laws of evidence must be adapted in order that [oral history evidence] can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents’.311 Like the doctrine of Aboriginal customary title, Canadian jurisprudence recognises that ‘the failure to do so would “impose an impossible burden of proof” on Aboriginal peoples, and “render nugatory” any rights that they have’.312 iii Summary The onus of proving Aboriginal customary title to particular land can be met by relying on oral evidence of the existence of pre-sovereignty laws/customs pursuant to which land was purposively occupied and the common law presumptions and rules relating to proof of laws/customs – whether or not the titleholders currently are, or continued postsovereignty to be, in physical occupation of the land. Oral evidence of the existence of pre-sovereignty laws/customs (upon which purposive occupation is based) existing as far back as living witnesses can remember raises a presumption that the laws/customs existed before sovereignty. In the absence of evidence to the contrary, proof of the existence of the relevant laws/customs as far back as the memory of living witnesses is prima   Delgamuukw (n 20) [87] (Lamer CJ for the majority of the Court).  ibid.

311 312

330  Common Law Aboriginal Customary Title facie sufficient to establish Aboriginal customary title: it raises a presumptive title. The burden of rebutting the presumption of the title then shifts to the Crown or whoever else challenges it.313 The presumption could be rebutted, for example, by showing that the laws/customs never existed or that they do not have an ancient origin or that they were not exclusive. While the initial onus of proving Aboriginal customary title will continue to be on those claiming the title, a practical approach to proof of customs such as that adopted in Gumana would ensure that intolerable burdens are no longer placed on Aboriginal claimants. Indeed, it would reverse the current status quo by placing the burden of rebuttal on those disputing Aboriginal customary title.314 Moreover, the burden of rebutting the well-established presumptions relating to proof of customs would be onerous: Deane and Gaudron JJ’s observation in Mabo that it was ‘conceivably’ the whole of the lands of Australia that were affected by native title315 indicates that all land in Australia was, pre-Crown sovereignty, subject to custom/s upon which native title was based and which would also provide the basis for Aboriginal customary title. Although courts readily presume the existence of a custom from evidence as far back as living witnesses can remember, it has been seen that ancient origin of a custom may also ‘be presumed if there has been long enjoyment and there is no proof of a later origin’.316 In addition to the well-established presumptions relating to proof of customs, especial presumptions for the unique circumstances of Aboriginal customary title may be judicially developed. Since proof of the existence of laws/customs pursuant to which land was purposively occupied is the foundation of Aboriginal customary title, proof that land occupied pre-sovereignty was utilised in a meaningful way from the Aboriginal perspective raises a presumption that the relevant laws/customs existed. D  Protection of Aboriginal Customary Title Proof of Aboriginal customary title overcomes the problems inherent in ‘over-­specificity’ in the identification of Aboriginal laws/customs (and thus the definition of native title) and in ‘over-particularity’ in the application of the continuity and constancy of laws/ customs requirements for establishing native title. Moreover, because Aboriginal customary title is a common law title it obtains protection concomitant with its common law status, including from interference by exercise of the Crown’s prerogative.317 It has been seen that the unique status of native title in terms of its vulnerability to extinguishment flows from the fact that it is not an institution of the common law: the Mabo High Court held the Crown’s prerogative powers in an inhabited settled colony are only constrained by the common law in their application to interests derived from valid Crown 313   The issue of onus of proof of conventional Aboriginal title is discussed in McNeil, ‘Onus of Proof’ (n 264). McNeil acknowledges that despite the unfairness of placing the onus of proving Aboriginal title on the titleholders, it is unlikely that the courts will revisit this issue. Nevertheless, he argues that the onus can be met by relying on past or present possession of land, so that the burden of proving a better title is cast on the Crown or persons deriving title from the Crown. 314   See above n 67 and text. 315   Mabo (n 3) 101. However, their Honours considered it ‘unnecessary for the purposes of [their] judgment, and probably now impracticable, to seek to ascertain what proportion of the lands of the continent were affected by such common law native title’: ibid. 316   See above n 68 and text. 317   See ch 3 text to nn 281, 285.



Second Limb of Common Law Aboriginal Customary Title 331

grant or secured by the rules of the common law.318 Although a title acquired by customary law is not dependent upon a Crown grant, actual or presumed, it is a valid means of acquiring title at common law.319 Thus, the scope of the Crown’s prerogative power, in an inhabited settled colony, to extinguish Aboriginal customary title is the same as any other validly acquired common law title, whether or not such title derives from Crown grant. Accordingly, it is not as ample as its power to extinguish native title. That is, the Crown does not have power to extinguish Aboriginal customary title by inconsistent executive grant per se.320 Recognition of Aboriginal customary title would acknowledge the historical reality of pre-sovereignty Aboriginal land rights. It would also render any attempt by the Crown to grant land subject to such title invalid.321 Nevertheless, it is clear that the Crown has purported to grant titles to third parties on the basis that Aboriginal customary title was not a form of common law title. The potential implications of recognising Aboriginal customary title in light of these historical facts requires that a full and principled reconciliatory approach govern the legal effect of its recognition to ensure that one grave injustice is not remedied by committing another. To use Slattery’s words in the context of conventional Aboriginal title, the process of reconciliation involves: [T]he full and unstinting recognition of the historical reality of aboriginal title, the true scope and effects of Indigenous dispossession, and the continuing links between an Indigenous people and its traditional lands. So, for example, to . . . hold that aboriginal title could be extinguished simply by Crown grant, is to rub salt into open wounds. However, by the same token, the recognition of historical title, while a necessary precondition for modern reconciliation, is not in itself a sufficient basis for reconciliation, which must take into account a range of other factors. So, for example, to suggest that historical aboriginal title gives rise to modern rights that automatically trump third party and public interests constitutes an attempt to remedy one grave injustice by committing another.322

Slattery’s analysis in this passage received judicial endorsement from (the late) Vickers J of the Supreme Court of British Columbia in Tsilhqot’in Nation v British Columbia.323   See ch 3 text to nn 275–81, 285–89.   See above text to n 124ff. 320   For details relating to the legal position in other jurisdictions see ch 3 n 203; below text to 346ff; ch 8. 321   See ch 3 text to nn 285–98. 322   Slattery (n 157) 282. This leaves open the possibility, essential to Slattery’s analysis, that Aboriginal title is only able to be partially implemented by the courts and its full implementation can only be achieved by negotiation between the parties, possibly via modern treaties: ibid. In Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) 2005 SCC 69, [2005] 3 SCR 388 [1] Binnie J (delivering the judgment of the Supreme Court of Canada) emphasised that ‘[t]he fundamental objective of the modern law of Aboriginal and treaty rights is the reconciliation of Aboriginal peoples and non-Aboriginal peoples and their respective claims, interests and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding’. Referring to this case, Slattery explained that ‘the process of reconciliation requires the courts to take account of the claims and interests of both aboriginal and non-aboriginal peoples. But the process is overshadowed by historical grievances that cannot be minimized or glossed over. In effect, reconciliation must strike a balance between the need to remedy past injustices and the need to accommodate contemporary interests’: (n 157) 283. 323   Tsilhqot’in Nation v British Columbia 2007 BCSC 1700, [2008] 1 CNLR 112 [1367]. According to counsel for Canada, this action is the first significant civil action relating to Aboriginal title since the Supreme Court of Canada’s decision in Delgamuukw (n 20). For comment see K McNeil, ‘Reconciliation and Third-Party Interests: Tsilhqot’in Nation v British Columbia’ (2010) 8 Indigenous law Journal 7; K Hausler, ‘Indigenous Perspectives in the Courtroom’ (2012) 16 The International Journal of Human Rights 51, 60ff; P Ochman, ‘Recent Developments in Canadian Aboriginal Law: Overview of Case Law and of Certain Principles of Aboriginal Law’ (2008) 10 International Community Law Review 319, 338ff. Tsilhqot’in Nation and the British Columbia Court of Appeal’s decision in William v British Columbia (n 20) are discussed in ch 8. 318 319

332  Common Law Aboriginal Customary Title Although this case involved a claim to Aboriginal title over a large area of the Province of British Columbia, the implication from Vickers J judgment is that provincial grants of private third-party interests on land subject to Aboriginal title (including fee simple interests) are invalid.324 His comments regarding reconciliation are, therefore, relevant to Australia where Crown grants of private third-party interests on land subject to Aboriginal customary title are invalid. Furthermore, principles of reconciliation are of universal application.325 Vickers J emphasised that not only are courts ‘ill equipped to effect a reconciliation of competing interests’ because they are confined by the issues raised in the pleadings and the jurisprudence on Aboriginal title,326 but ‘the actions of courts have the potential to diminish the possibility of reconciliation ever occurring’.327 ‘In an ideal world’, therefore, ‘the process of reconciliation would take place outside the adversarial milieu of a courtroom’:328 through honourable negotiations.329 Notwithstanding this conclusion, Vickers J considered how the Court could participate in the process of reconciliation. Seeing the ‘Court’s role as one step’ in the process, he took the opportunity to decide issues that did not need to be decided so the parties were free to use the opinions he expressed in subsequent negotiations.330 324   Implicit in Vickers J’s analysis of Canada’s constitutional division of powers and the doctrine of interjurisdictional immunity is that exclusive federal jurisdiction over Aboriginal title lands renders private interests created by the Province of British Columbia in land subject to Aboriginal title invalid: Tsilhqot’in Nation (n 323) [1041]–[1049], see also [963]–[981]. See also McNeil, ‘Reconciliation and Third-Party Interests’ (n 323) 18–20. In this context, Vickers J agreed with McNeil’s comments in 2000 that the Province of British Columbia ‘has been violating Aboriginal title in an unconstitutional and therefore illegal fashion ever since it joined Canada in 1871’: Tsilhqot’in Nation (n 323) [1047] quoting K McNeil, ‘Aboriginal Title and Section 88 of the Indian Act’ (2000) 34 UBC Law Review 159, 194. Indeed, in his discussion of private interests within the claim area, Vickers J specifically held ‘[g]iven that the jurisdiction to extinguish has only ever been held by the federal government, the Province cannot and has not extinguished these rights by a conveyance of fee simple title to lands within the Claim Area . . . Thus, regardless of the private interests in the Claim Area (whether they are fee simple title, range agreements, water licences, or any other interests derived from the Province), those interests have not extinguished and cannot extinguish Tsilhqot’in rights, including Tsilhqot’in Aboriginal title’: Tsilhqot’in Nation (n 323) [997]–[998]. The foregoing is difficult to reconcile with Vickers J comment that ‘[w]hat is not clear from the jurisprudence are the consequences of underlying Aboriginal rights, including Aboriginal title, on the various private interests that exist in the Claim Area’: ibid [999]. According to Vickers J’s own analysis, the fact that the private interests were purportedly created by the Province of British Columbia rendered them void. 325   Indeed, in Northern Territory v Arnhem Land Aboriginal Land Trust [2008] HCA 29, (2008) 236 CLR 24 [70] Kirby J expressly referred to the ‘reconciliatory purposes’ of the National Apology provided to the Aboriginal peoples of Australian on 13 February 2008 when asserting that the High Court should take judicial notice of that National Apology. Like the preamble to the Native Title Act 1993 (Cth) (para 17), the National Apology acknowledges ‘the wrongs done in earlier times to the indigenous peoples of Australia, including by the law of this country. Those wrongs included the non-consensual denial and deprivation of basic legal rights which Australian law would otherwise protect and uphold for other persons in the Commonwealth. In the case of traditional Aboriginals, these right included rights to the peaceful enjoyment of their traditional lands . . . as their ancestors had done for aeons before British sovereignty and settlement’: ibid [70]. See also Mayan Leaders Alliance and the Toledo Alcaldes Association on behalf of the Mayan Villages of Toledo District v Attorney-General Belize (Supreme Court of Belize, 28 June 2010) [135] (A Conteh CJ). 326   Tsilhqot’in Nation (n 323) [1357]. 327   ibid [1367]. 328   ibid [1357]. 329   It is clear from Vickers J’s judgment that his reference to negotiating Aboriginal title claims in an honourable way involves, to use Slattery’s words, ‘the full and unstinting recognition of the historical reality of aboriginal title, the true scope and effects of Indigenous dispossession, and the continuing links between an Indigenous people and its traditional lands’, while taking into account other relevant factors, especially ‘third party and public interests’: see above nn 322, 323 and text. 330   Tsilhqot’in Nation (n 323) [1375].



Second Limb of Common Law Aboriginal Customary Title 333

In this context, although deciding that the plaintiff was not entitled to the declaration of Aboriginal title sought in respect of the claim area because the case had not been properly pleaded,331 Vickers J expressed the opinion that Aboriginal title had been established over a large area (both inside and outside the claim area) and observed that a declaration of title would have been issued but for the defect in the pleadings.332 Similarly, while the pleadings did not raise the issue of conflicts between private third-party interests and Aboriginal titleholders,333 Vickers J observed that reconciliation of such competing interests ‘will be dependant on a variety of factors, including the nature of the interests, the circumstances surrounding the transfer of the interests, the length of the tenure, and the existing land use’.334 With the benefit of Vickers J’s opinions, the matter was returned to the parties to negotiate an honourable agreement that would take into account all relevant competing interests: Aboriginal titleholders, third parties and the wider general public.335 As a matter of law, Aboriginal customary title prevails over third-party interests created by Crown grant which are inconsistent with it: Crown grants of land subject to Aboriginal customary title are invalid.336 Although this would satisfy Slattery’s requirement for ‘recognition of the historical reality of aboriginal title’, it would disregard Slattery’s requirement to ‘take into account a range of factors’ including ‘third party and public interests’.337 As a matter of reconciliation, therefore, third-party interests (even if invalid) cannot be ignored. They can also not be permitted to prevail over Aboriginal customary title. Thus, the questions are: how should third-party interests be dealt with and who should bear the pecuniary costs of reconciliation. It is axiomatic that because fee simple and leasehold estates confer exclusive possession, they come into direct conflict with the rights of Aboriginal titleholders. McNeil has suggested how this issue should be dealt with. Dispossessing the holders of fee simple and leasehold estates because the government ‘never had the authority to create the interests they thought they had received would clearly be unjust’ and such injustice would increase with the age of the interests and the value of any improvements made on the land.338 McNeil, therefore, argues: In the absence of a wrong committed by the landholder, a compromise solution in this situation would be for legal validity to be conferred on these interests, perhaps retroactively. In 331   ibid [957], [129]. The case was framed as an ‘all or nothing’ claim and title to the entire claim area had not been established by the evidence. 332   ibid [686], [792]. [852], [957], [959]–[962]. 333   ibid [993], [39]. 334   ibid [1000]. 335   Although all three parties (Tsilhqot’in Nation, British Columbia and Canada) filed notices of appeal from Vickers J’s judgment on 14 December 2007, they all consented to a stay of proceedings on 8 December 2008. Subsequently, Canada and British Columbia applied to have the stay of proceedings order lifted. Tsilhqot’in Nation opposed the application, wishing to pursue a settlement of the claim outside of court. The application was nevertheless granted on 26 February 2009 which allowed the appeal to proceed: Xeni Gwet’in First Nations v British Columbia [2009] 2 CNLR 385 (BCCA in Chambers). The British Columbia Court of Appeal’s decision in William v British Columbia (n 20) was delivered on 27 June 2012 and is discussed in ch 8. 336   Recall that, although for different reasons, in Tsilhqot’in Nation Vickers J was also of the view that private interests created by the Province of British Columbia in land subject to Aboriginal title were invalid: see above n 324 and text. 337   See above quote to n 322. See also Slattery’s ‘Principles of Recognition and Reconciliation’ quoted in Tsilhqot’in Nation (n 323) [1370], [1372]. 338   McNeil, ‘Reconciliation and Third-Party Interests’ (n 323) 23.

334  Common Law Aboriginal Customary Title return, the Aboriginal titleholders should receive replacement lands, or compensation for the loss of their Aboriginal title lands, from the wrongdoers.339

Since the real wrongdoers are the governments, not private citizens who in most cases are innocent of any personal wrongdoing, the governments should bear the costs of reconciliation.340 Despite the need for principles of reconciliation to govern conflicts between Aboriginal customary title and private third-party interests to ensure that one grave injustice is not remedied by committing another, there are indications that South Africa may not adopt a reconciliatory approach. It will be seen that the South African Constitutional Court in Alexkor Ltd v The Richtersveld Community341 recognised a common law rule analogous to the international law inter-temporal rule in the context of potentially recognising a form of Aboriginal title. Application of such a common law analogue would not only perpetuate the discriminatory treatment Indigenous inhabitants of settled colonies have been subjected to, it would also extend such discriminatory treatment to the Indigenous inhabitants of conquered/ceded colonies. IV  DOCTRINAL UNDERPINNINGS FOR ABORIGINAL CUSTOMARY TITLE

The doctrinal underpinnings for recognising common law title to land sourced in Aboriginal laws/customs lie in the Crown’s radical title providing a new basis for the system of land tenure in post-Mabo Australia. Contrary to the received view, the Crown’s radical title does not automatically entitle it to beneficial ownership of unalienated land in Australia irrespective of whether the land is subject to pre-existing (native) title and the doctrines of tenure ad veritatem and continuity pro-tempore apply in Australia. Crucially, however, the doctrinal underpinnings for Aboriginal customary title are also consistent with the conventional view that radical title confers beneficial ownership on the Crown except to the extent of pre-existing (native) title as well as with the English, feudal, doctrine of tenure and the traditional doctrine of continuity.342 The proposition that Aboriginal customary title sourced in pre-sovereignty laws/ customs continues post-sovereignty is not unlike recognition of native title in Mabo and is 339   ibid. McNeil also suggests how provincial grants of limited interests such as logging and mining rights should be dealt with: ‘In situations where resource extraction rights have been wrongfully granted by the province, one solution would be for the province to acknowledge the invalidity of these rights and pay compensation for having wrongly granted them. The Aboriginal titleholders would be entitled to compensation for loss of use and damage to their land, and the grantees might be entitled to compensation for losses caused by the invalidation of their interests. Alternatively, the Aboriginal titleholders might agree that, if compensation for past violation of their rights was paid by the province, they would allow the resource extraction to continue on their own terms. Such an agreement could include an Aboriginal management role and share of the profits, along with other benefits such as employment for community members. Thus, resource extraction would not necessarily cease on Aboriginal title lands, but in future would be subject to control by the Aboriginal titleholders who would benefit rather than suffer from it. Of course, the appropriate solution would depend on the circumstances and would be the product of negotiations’: ibid 22–23. 340   ibid 22, 23. Indeed, this would merely ensure that Aboriginal people are compensated for the loss of their land in the same way people are when privately held lands are compulsorily acquired by governments. 341   Above n 22: see below text to n 472ff. 342   In the context of customary title arising after sovereignty under the first limb, the proposition that customary rights analogous to incorporeal hereditaments become the local common law is clearly consistent with both the conventional and post-Mabo doctrinal underpinnings (although there is no issue of any doctrine of continuity).



South Africa Post-Richtersveld 335

clearly consistent with both doctrinal underpinnings. The proposition that Aboriginal customary title can be accommodated within the legal system imposed as a consequence of Crown sovereignty on the basis that a traditional exception to the feudal doctrine of tenure applies to unalienated land which is subject to pre-existing Aboriginal rights (tenure in ancient demesne: customary law pre-dating the tenurial scheme) is also consistent with both doctrinal underpinnings. The proposition that Aboriginal customary title can be accommodated within the post-sovereignty legal system on the basis that English land law relating to pre-feudal landholding applies to land which is subject to pre-­existing Aboriginal rights (folkland: allodial customary landholding) ostensibly relies on the effect of the doctrine of tenure ad veritatem. However, because folkland is an allodial system of landholding it also constitutes one of the traditional exceptions to the feudal doctrine of tenure and is thus consistent with both doctrinal underpinnings vis-a-vis the doctrine of tenure. Importantly, because Aboriginal customary title applies to land which is in fact subject to pre-existing Aboriginal rights, it represents a manifestation of the general assumption that the Crown’s radical title conferred ownership of land except to the extent of pre-existing title. Aboriginal customary title is also accommodated within the post-­sovereignty legal regime on the basis of the traditional exceptions to the English, feudal, doctrine of tenure. Crucially, therefore, Aboriginal customary title has signific­ ant practical implications for Aboriginal land rights irrespective of the author’s conclusions on the conceptual content of radical title and the application of the doctrine of tenure ad veritatem.343 Feudal conceptions of landholding do not, however, have any relevance in the context of an inhabited settled colony. The principles discussed so far relate to establishing Aboriginal customary title in inhabited settled colonies. It has been seen that, although the doctrine of continuity (whether conventional or pro-tempore) applies in ceded/conquered colonies, in such colonies the extent to which English law was introduced and local laws retained depended on the circumstances of each colony.344 What does this mean for the doctrine of Aboriginal customary title in such colonies? By reference to the position in South Africa following Richtersveld,345 it is to this question that we now turn. V  ABORIGINAL CUSTOMARY LAW AS A SOURCE OF NON-DERIVATIVE COMMON LAW TITLE TO LAND IN CEDED AND CONQUERED COLONIES: SOUTH AFRICA POST-RICHTERSVELD

Although the decision in Richtersveld made it clear that Indigenous customary law346 is regarded as a source of title to land in South Africa, the Constitutional Court limited its consideration of ‘indigenous law ownership’ of land to a claim under the Restitution of 343   Note that the doctrine of continuity pro-tempore has been cited with approval in the context of the inhabited settled colony of Australia by the Federal Court of Australia in Gumana (n 267) [121] (Selway J). See also ch 3 n 191 and text. 344   See ch 3 text to n 230. 345  The decisions of both the South African Supreme Court of Appeal and Constitutional Court are considered. 346   Although s 39(3) of the Constitution of the Republic of South Africa (1996) refers to ‘customary law’, the Constitutional Court preferred to use the term ‘indigenous law’ which, they observed, has the same meaning as ‘customary law’: Richtersveld (n 22) fn 8. Note that South African courts have been able to take cognisance of customary law since 1927: Native Administration Act 1927.

336  Common Law Aboriginal Customary Title Land Rights Act 1994 (Restitution Act)347 – an Act which established a statutory process of restitution in order ‘to restore or compensate people for land rights they lost because of racially discriminatory laws passed since 19 June, 1913’.348 Whether there is any Indigenous law ownership of land under the common law was not addressed. Indeed, the South African Supreme Court of Appeal349 expressly refrained from deciding whether the doctrine of Aboriginal title350 was part of South African common law.351 It has also been suggested that the reason for not extending the date of dispossession in the Restitution Act back to the time of British colonisation,352 but instead stipulating 19 June 1913 as the cutoff date, was to eliminate claims based on Aboriginal title.353 It will be seen, however, that Aboriginal customary title can be a legitimate and workable part of South African law. There are two main points of distinction between the British colonisation of South Africa and Australia. First, contrary to the position in Australia, Britain was not the first foreign power to colonise South Africa: when South Africa became a British colony it was already heir to Roman-Dutch law.354 Secondly, whereas Britain acquired sovereignty over Australia by settlement (albeit of a legally inhabited territory), it acquired sovereignty over South Africa by conquest (pursuant to hostilities between the British Crown and the Dutch sovereign)355 and cession.356 It has been seen that, although the   Act 22 of 1994.   Guide to the Department of Land Affairs’ Land Reform Programme (Pretoria, Department of Land Affairs, 1996) 12. 349   Richtersveld Community v Alexkor Ltd [2003] ZASCA 14, 2003 (6) SA 104 (Vivier ADP for the Court). 350   The Court referred to the ‘Doctrine of Aboriginal or Native Rights’ (ibid [36]) and stated that ‘aboriginal title is rooted in and is the “creature of traditional laws and customs” . . . The only requirement for the acquisition of aboriginal title is that the indigenous community must have had exclusive occupation of the land at the time when the Crown acquired sovereignty’: ibid [37]. Aboriginal title and native title are terms which differ slightly depending on how the conceptual basis of the title is viewed: eg, in Canada, there is a distinction between Aboriginal title and Aboriginal rights whereas in Australia, native title is a singular concept potentially covering both aspects of the Canadian distinction. 351   RichtersveldSCA (n 349) [43]; see also Richtersveld (n 22) [100]. South African common law must not be confused with English common law. South African common law refers to the law received and applicable in South Africa as a result of its bipartite colonial history: see below text to n 359ff. 352   In 1652, a century and a half after the discovery of the Cape Sea Route, a refreshment station was established at the Cape of Good Hope (at what became Cape Town) on behalf of the Dutch East India Company. From 1795 to 1803, Britain temporarily occupied the Cape of Good Hope to protect its interests from political changes in Europe as a result of the French Revolution. It was not, however, until 1806 that Britain formally colonised South Africa and it was not until 1848 that Britain annexed the land in dispute in Richtersveld: see below text to nn 449–54. 353   J Murphy, ‘The Restitution of Land after Apartheid: The Constitutional and Legislative Framework’ in MR Rwelamira and G Werle (eds) Confronting Past Injustices: Approaches to Amnesty, Punishment, Reparation and Restitution in South Africa and Germany (Durban, Butterworths, 1996) 113, 121; LA Hoq, ‘Land Restitution and the Doctrine of Aboriginal Title: Richtersveld Community v Alexkor Ltd and Another’ (2002) 18 South African Journal on Human Rights 421, 435. 354   Pre-British colonising powers include the Netherlands, Sri Lanka, Quebec, Mauritius and Malaysia. 355   In the South African context, the Constitutional Court observed that the Supreme Court of Appeal ‘adopted the rule that indigenous rights to private property in a conquered territory were recognised and protected after the acquisition of sovereignty and concluded that the rights of the Richtersveld Community survived annexation. We endorse that conclusion’: Richtersveld (n 22) [69]. See also RichtersveldSCA (n 349) [49], [61]; below text to n 427ff. 356   RichtersveldSCA (n 349) [49]: ‘it is clear from the Articles of Capitulation that when the British Crown acquired sovereignty of the Cape Colony by conquest and cession in 1806 the indigenous land rights of the inhabitants were recognised and respected’. While the Cape Colony was acquired by conquest and cession, authors have tended to only refer to the Dutch cession of the Cape to Britain in 1806: see, eg, TW Bennett, ‘Redistribution of Land and the Doctrine of Aboriginal Title in South Africa’ (1993) 9 South African Journal on Human Rights 443, 459; A Reilly, ‘The Australian Experience of Aboriginal Title: Lessons for South Africa’ (2000) 16 South African Journal on Human Rights 512, 514. 347 348



South Africa Post-Richtersveld 337

doctrine of continuity pro-tempore applies to inhabited settled colonies and conquered/ ceded colonies (post-act of State), the Crown’s prerogative power to extinguish preexisting property rights is more limited in conquered/ceded colonies. Indeed, due to the limitations on the Crown’s prerogative powers in a conquered/ceded colony, the effect of the doctrine of continuity pro-tempore is the same as the conventional doctrine of continuity: pre-existing rights survive a change in sovereignty and, statutory expropriation apart, the continuing rights cannot be unilaterally extinguished.357 It has also been seen that, after the act of State establishing a conquered/ceded colony, the way in which pre-existing rights were protected from the Crown’s prerogative to grant land depended upon the extent to which English law superseded the existing system. If English land law was introduced in toto, the conquered/ceded people acquired a common law title to their land and concomitant protection from the Crown’s prerogative. If the Crown agreed that the system of land law prevailing in the conquered/ceded colony would continue in force, the rights of the Crown with regard to the acquisition, alienation and disposition of pre-existing property were regulated by the legal principles which the Crown expressly sanctioned. In any case, although the new sovereign had power to alter old laws and introduce new laws, this power was subject to the fundamental principle that ‘undisputed’ property rights cannot be unilaterally expropriated in the absence of statutory authority.358 Had Britain been the first colonising power in South Africa, the situation vis-a-vis the Aboriginal inhabitants would have involved a simple application of the doctrine of continuity pro-tempore (post-act of State): whether by the laws which the Crown allowed or established, the Crown could not by exercise of its prerogative to grant land interfere with the pre-existing property rights of conquered/ceded people. The position is, however, complicated by the bipartite colonial history of South Africa. A  South Africa’s Bipartite Colonial History South Africa has a bijuridical legal system and thus uses both common law and civil law. This is because South African law has been influenced by two legal cultures. First, the continental civil law traditions deriving from Roman law as it was understood in Holland in the mid-seventeenth century when the first European merchants travelled to, and eventually settled at, the Cape of Good Hope.359 Secondly, the English common law at the beginning of the nineteenth century when British colonial rule was imposed. In the former context, during the first 150 years of white occupation in South Africa there was no express provision as to which legal principles were applicable. This was because from 1652 to 1795, the Cape merely served as a half-way station for mercantile ships (mainly Dutch) travelling between Europe and India. Formal colonisation of South Africa was not an objective. Indeed, until 1795, the territory was governed by the United East India Company, not by the Government of the Netherlands. Roman-Dutch law was applied

  See ch 3 text to n 245.   See ch 3 text to n 227ff. For political reasons, colonial courts did sometimes disregard the way in which international law categorised the mode of acquisition of a colony. 359   HJ Erasmus, ‘Thoughts on Private Law in a Future South Africa’ (1994) 5 Stellenbosch Law Review 105, 107. 357 358

338  Common Law Aboriginal Customary Title to settle disputes because of the earliest settlers’ connection with Holland.360 In the latter context, although the British Crown allowed Roman-Dutch law to continue under the doctrine of continuity pro-tempore, English legal principles were gradually incorporated into the substantive law361 and a mixed legal system developed in South Africa. Although South African common law is referred to as Roman-Dutch law,362 it is influenced by both civil law and English common law. The extent of the influence of these two systems of law, however, varies between different legal disciplines. For present purposes, property law is influenced by civilian legal principles:363 the law of the pre-British colonising power which continued under the doctrine of continuity pro-tempore, rather than the law of the original Aboriginal inhabitants. Nevertheless, at the time of British colonisation in 1806, the Crown recognised the Aboriginal inhabitants’ land rights.364 The critical question is, therefore: when Britain acquired a colony that had previously been colonised by another nation which had introduced its own system of law (civil and/or common law), how did this effect the application of the doctrine of continuity pro-tempore vis-a-vis the Aboriginal inhabitants? By definition, subsequent British acquisition of a colony in such circumstances would always amount to a conquest and/or cession and, it will be seen, is in an especial position: the doctrine of continuity pro-tempore was qualified to ensure that the doctrine of Aboriginal customary title automatically applied to protect Aboriginal property rights.365 South African courts have, however, expressly refrained from deciding whether any doctrine of Aboriginal title is part of South African law. Furthermore, by limiting their consideration of Aboriginal land rights to the statutory restitution regime, the legal consequences (common law or otherwise) of land rights which were lost before the statutory cut-off date of 19 June 1913 have not been judicially tested. After considering the narrow approach adopted in South Africa, it will be seen that application of the doctrine of continuity pro-tempore in bipartite colonial contexts, including South Africa, ensures that the doctrine of Aboriginal customary title applies from the date of British colonisation. B  The South African Experience: Richtersveld In South Africa, the jurisprudence of Aboriginal land rights is in its embryonic phase. Aboriginal title was first claimed in two cases brought by the Richtersveld community in respect of a narrow strip of diamondiferous land situated in the north-western corner of 360  JE Du Plessis, ‘The Promises and Pitfalls of Mixed Legal Systems: The South African and Scottish Experiences’ (1998) 9 Stellenbosch Law Review 338, 340. 361   Notably, legislation introduced English principles into administrative law, mercantile law, procedural law and criminal law: Erasmus, ‘Thoughts on Private Law in a Future South Africa’ (n 359) 109. English also become the official language of the Cape and its courts. 362   H Mostert and A Pope (eds), The Principles of the Law of Property in South Africa (South Africa, OUP, 2010) 9. 363   R Zimmermann and D Visser, ‘Introduction: South African Law as a Mixed Legal System’ in R Zimmermann and D Visser (eds) Southern Cross: Civil Law and Common Law in South Africa (Oxford, Clarendon Press, 1996) 28. The law of treason is an example of Roman-Dutch and not English law applying: R v Erasmus [1923] AD 73 (SAfr). 364   See below text to n 457. cf below text to n 444; n 445. 365   Indeed, it will be seen in ch 8 that Canadian judicial pronouncements have confirmed that the con­ ventional doctrine of Aboriginal title applied in Quebec when Britain acquired sovereignty over the colony notwithstanding the continuation of French (civil) law as introduced by the previous colonising power: R v Côté [1996] 3 SCR 139 (SCC) [42]ff; R v Adams [1996] 3 SCR 101 (SCC) [32]– [33]; Roberts v Canada [1989] 1 SCR 322 (SCC).



South Africa Post-Richtersveld 339

the Northern Cape Province.366 In December 1997, the Richtersveld community instituted action in the High Court of South Africa367 against the Government of the Republic of South Africa and a mining company, Alexkor Limited, claiming an order declaring that they were ‘entitled to the exclusive beneficial occupation and use of the subject land on the grounds that they [held] aboriginal title to the land’.368 In December 1998, the Richtersveld community lodged a restitution claim in the Land Claims Court (LCC) which alleged, inter alia, ‘a right based on aboriginal title allowing them the exclusive beneficial occupation and use of the subject land’.369 Although both cases claimed Aboriginal title, the High Court case claimed a continuing title that had never been extinguished, whereas the LCC case claimed dispossession of the title after 1913. The Richtersveld community had initiated action in the High Court first, but subsequently undertook not to proceed with such action until the restitution claim had been decided.370 As a result of the Constitutional Court’s affirmation of the Supreme Court of Appeal’s decision that the Richtersveld community was entitled to restitution of the subject land, the High Court action was not pursued. Since the restitution claim371 was decided on the basis that the Richtersveld community had been dispossessed of a customary law interest in the subject land,372 the issue of 366   For a full description of the land: see Richtersveld Community v Alexkor Ltd 2001 (3) SA 1293 [2], fn 1 (Land Claims Ct) (Gildenhuys J). 367   Cape of Good Hope Provincial Division; case number 16466/97. 368   Gildenhuys J’s description of the High Court claim in RichtersveldLCC (n 366) [8]. 369   ibid [6]. 370   ibid [10]. 371   The restitution claim was brought under s 2(1) of the Restitution Act which relevantly provides: ‘A person shall be entitled to restitution of a right in land if – . . .

(d)  it is a community or part of a community dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; and (e) the claim for such restitution is lodged not later than 31 December 1998’. By s 1 of the Restitution Act, ‘right in land’ means: ‘any right in land whether registered or unregistered, and may include the interest of a labour tenant and sharecropper, a customary law interest, the interest of a beneficiary under a trust arrangement and beneficial occupation for a continuous period of not less than 10 years prior to the dispossession in question’; and ‘racially discriminatory practices’ means: ‘racially discriminatory practices, acts or omissions, direct or indirect, by – (a)  any department of state or administration in the national, provincial or local sphere of government; (b)  any other functionary or institution which exercised a public power or performed a public function in terms of any legislation’. 372   The SCA held that the Richtersveld community’s rights to the subject land, including precious stones and minerals, constituted a ‘customary law interest’ and thus a ‘right in land’ as defined in the Restitution Act: RichtersveldSCA (n 349) [8], [29], [43]. It held that State policy since the 1920s had consistently been to ignore the Richtersveld community’s rights to the subject land (despite acknowledging their occupation and use of the land since before annexation) and to regard the subject land as Crown land: ibid [8], [107]. Following discovery of diamonds on the subject land during the 1920s, the State dispossessed the Richtersveld community of its rights in the land in a series of steps amounting to ‘practices’ as defined in the Restitution Act. The relevant State policy included the process whereby Proclamations under the 1927 Precious Stones Act were promulgated and legislative and executive steps were taken which culminated in the transfer of full ownership to Alexor Ltd: ibid, [8], [92]ff, [108]. Underlying that State policy ‘was the obvious, albeit unexpressed, premise that the Richtersveld became Crown land upon annexation because its people were insufficiently civilised. It can safely be accepted that an essential part of this premise was the race of the Richtersveld people. No alternative springs to mind or was suggested. The racial discrimination, therefore, is clear. The effect of the State policy was that the Richtersveld people were treated as if they had no rights in the subject land. Their dispossession resulted from a racially discriminatory practice in that it was based upon and proceeded from the premise that due to their lack of civilisation, to which their race was inextricably linked, the Richtersveld people had no rights in the subject land’: ibid [109]–[110]. See also ibid [8]. Although the Constitutional Court affirmed the SCA’s decision relating to the Richtersveld community’s entitlement to restitution of the subject land, it amended the order of the SCA by describing the character of

340  Common Law Aboriginal Customary Title whether Aboriginal title is part of South African law was not resolved. Nevertheless, judicial dicta in both the Supreme Court of Appeal (SCA) and the Constitutional Court make a significant contribution to this debate. i  Supreme Court of Appeal The SCA held that, because a customary law interest for the purpose of the Restitution Act had been established, it was not necessary to decide whether the doctrine of Aboriginal title forms part of South African common law or whether South African common law should be developed to recognise Aboriginal rights.373 Nevertheless, the Court did consider the doctrine of Aboriginal title in some detail.374 It will also be seen that the SCA applied the doctrine of continuity as articulated by Brennan J in Mabo in the context of the ‘customary law interest’ under the Restitution Act. The SCA observed that Aboriginal title, like the customary law interest held by the Richtersveld community, is ‘rooted in and is the “creature of traditional laws and customs”’.375 The Court also referred to other aspects of Aboriginal title: its sui generis nature;376 the requirement for exclusive occupation of land at the time the Crown acquires sovereignty;377 surviving colonisation as a burden on the State’s radical title;378 and the Crown/State’s power to extinguish Aboriginal land rights.379 Importantly, in the context of Crown/State’s radical title and power of extinguishment, the SCA quoted the first five principles in Brennan J’s summation of the common law of Australia regarding native title in Mabo.380 While this indicated that, like the position in Australia, the Crown’s power of extinguishment includes the Crown’s prerogative to grant land,381 the SCA subsequently accepted as axiomatic ‘that [pre-existing] rights can only be extinguished by acts of state or legislation’.382 In doing so, the SCA expressly contrasted the Mabo principles quoted regarding extinguishment.383 Noting that scholarship regarding recognition of the doctrine of Aboriginal title in South Africa is divided,384 the SCA observed, without deciding: the community’s title as ownership held under ‘indigenous law’ instead of the SCA’s finding that it was ‘akin to that held under common law ownership’. See discussion below text to nn 406ff (SCA), 418ff (CC). 373   RichtersveldSCA (n 349) [43]. 374   ibid [36]–[43]. 375   ibid [37] quoting Yorta Yorta (n 14) [103]. 376   ibid [38]. 377   ibid [37]. 378   ibid [38] citing TW Bennett and CH Powell, ‘The State as Trustee of Land’ (2000) 16 South African Journal on Human Rights 601, 615–16. See also ibid [41] quoting Mabo (n 3) 69–70 (the first 5 points of Brennan J’s summary of the common law of Australia regarding native title). 379   ibid [40]. 380   ibid [41] quoting Mabo (n 3) 69–70 (points 4 and 5 of Brennan J’s summary of the common law of Australia regarding native title clearly endorse extinguishment by executive grant per se). 381   ibid [40]: ‘Termination requires appropriate legislative authority showing a clear and unequivocal intention to extinguish or at least an action making the land over to others’ (emphasis added). 382   ibid [66]. 383  ibid. 384  ibid [42]. Referring to commentators who have addressed the hazards associated with recognising Aboriginal title in South Africa, the SCA cites Hoq, ‘Land Restitution and the Doctrine of Aboriginal Title’ (n 353) and T Roux, ‘The Restitution of Land Rights Act’ in G Budlender, J Latsky and T Roux (eds), Juta’s New Land Law (Cape Town, Juta & Co, 1998) 3A–16. Referring to commentators who have expressed the view that Aboriginal title can be a legitimate and workable part of South African law, the SCA cites TW Bennett and CH Powell, ‘Aboriginal Title in South Africa Revisited’ (1999) 15 South African Journal on Human Rights 449, 450–51 and Reilly, ‘The Australian Experience of Aboriginal Title’ (n 356) 528.



South Africa Post-Richtersveld 341 All the aspects of the doctrine do not fit comfortably into our common law. For instance, the idea that the State or Crown possesses radical title to all land may have its origin in English feudal law and may be foreign to our law. In view of my conclusion that a customary law interest, for which the [Restitution Act] expressly provides, has been established in the present case, it is not necessary to pursue the matter any further.385

There are a number of objections to the SCA’s reliance on the feudal origins of the sovereign’s radical title to suggest that a form of Aboriginal title is not part of South African law. First, it has been seen that the concept of radical title is the very antithesis of feudal theory:386 radical title connotes the sovereign’s right to acquire and confer title, but not title itself: automatic imperium as distinct from automatic dominion.387 Accordingly, before the Crown/State exercises its sovereign power to create interests in land in itself or others, the land does not belong to the Crown/State or any person claiming a title derived from the Crown/State. The land belongs to no one (res nullius) unless it is owned pursuant to some other legal principles (such as the doctrine of Aboriginal customary title). Indeed, it was seen in chapter two that more than 90 years ago in Re Southern Rhodesia,388 where Aboriginal land rights were not in issue, the Privy Council observed that while the Crown had acquired sovereignty over Southern Rhodesia, the unalienated lands were not necessarily its property.389 Lord Sumner said that ‘theoretically’ the unalienated lands might not belong to anybody. The second objection relates to the narrower, conventional view of radical title as not conferring beneficial ownership on the sovereign to the extent of native title only. While the SCA390 cited Bennett and Powell in the context of the conventional view of radical title,391 the SCA failed to acknowledge Bennett and Powell’s position that not only did radical title vest in the Crown under British colonial law upon acquisition of a new colony,392 but that British colonial law is one basis upon which the ‘doctrine of aboriginal title was received into the South African legal system’.393 The third objection, which is not inconsistent with the first two, relates to one of the theories regarding the legal origins of the doctrine of Aboriginal title: that it ‘originated from the principles of Roman-Dutch law relating to occupatio of res nullius’.394 This   RichtersveldSCA (n 349) [43].   See also Bennett and Powell, ‘Aboriginal Title in South Africa Revisited’ (n 384) 462. 387   In this context, the SCA’s comments when rejecting an argument that legislation providing for the disposal of ‘waste Crown land’ manifested an intention to extinguish pre-existing land rights are congruent with the conclusion in ch 4 that Australian legislation referring to ‘waste lands of the Crown’, ‘waste lands belonging to the Crown’ and ‘Crown land’ is consistent with investiture of mere radical title in the Crown, rather than also asserting the Crown’s absolute ownership of the land. Of such Crown Lands Acts, the SCA observed ‘At best . . . it can be said that the Legislature assumed that all land not allocated by means of the grant of title deeds belonged to the Crown but the implied assumption cannot be elevated to a legislative act with that consequence’: RichtersveldSCA (n 349) [66]. See also ibid [63]–[66]. The conventional view of radical title as conferring beneficial ownership on the sovereign except to the extent of native title is the basis of the second objection. 388   Above n 251. See discussion in ch 2 text to n 82ff. 389   See also Bakare Ajakaiye v Lieutenant-Governor, Southern Provinces [1929] AC 679 (PC) 682. 390   RichtersveldSCA (n 349) [38]. 391   Bennett and Powell, ‘The State as Trustee of Land’ (n 378) 615–16. 392   Bennett and Powell (n 384) 461; Bennett, ‘Redistribution of Land and the Doctrine of Aboriginal Title in South Africa’ (n 356) 452. 393   Bennett and Powell (n 384) 481. 394   H Mostert, ‘Aboriginal Title’ in Max Planck Encyclopedia of Public International Law (Heidelberg, Germany, OUP, 2008) 1, para 25. See also Bennett (n 356) 446–47 who argues that Aboriginal title could be deemed a rule of Roman-Dutch law pursuant to ch 2 of Grotius’ 1609 book Mare Liberum, sive de jure quod 385 386

342  Common Law Aboriginal Customary Title theory presumes that ‘the State has no residual power over property’ and could thus expand the scope of Aboriginal title claims.395 Although Mostert suggests that ‘[s]ince aboriginal title has developed primarily from British colonial law, it may seem unlikely that principles stemming from civil law could form the basis of the aboriginal title claim’,396 she nevertheless observes that ‘aboriginal title is far more widely recognised in post-colonial systems with civil-law foundations than might be expected’.397 The explanation for such recognition lies in the fact that, although the doctrine of Aboriginal title applies in jurisdictions which were former colonies of the British Empire, the bipartite history of former colonies like South Africa resulted in the retention of all or some of the civil law introduced before British colonisation. While the concept of radical title is part of English common law as developed by colonial courts, it is not of itself inconsistent with the civil law notion of res nullius. That is, where English law is introduced into a British colony (including one previously colonised by other nation/s), the doctrine of Aboriginal (customary) title is not inconsistent with the original occupation of land by the Aboriginal inhabitants – Aboriginal occupatio of res nullius. Indeed, it will be seen that, irrespective of the legal system applying prior to British colonisation, application of the doctrine of continuity pro-tempore in the bipartite colonial context ensures that, from the date of British colonisation, Aboriginal customary title applies. The fourth objection is, like the second, inherent in the SCA’s own decision. The SCA applied the doctrine of continuity as expressed by Brennan J in Mabo to the customary law interest of the Richtersveld community.398 The SCA quoted the following passage from Brennan J’s judgment with approval: The preferable rule, supported by the authorities cited, is that a mere change in sovereignty does not extinguish native title to land. . . . The preferable rule equates the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land.399

It has, however, been seen that the decision in Mabo did not in fact equate ‘the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land’: the purported equation only applied to recognition of native title rights; it did not apply to extinguishment of those rights.400 Indeed, by treating the inhabitants of a settled colony as more vulnerable to extinguishment than the inhabitants of conquered/ceded colonies, the High Court effectively preserved the distinction between ‘settled’ and ‘conquered/ceded’ colonies in terms of the legal status of pre-existing land rights. It has been seen that although the SCA initially appeared to endorse Brennan J’s position on extinguishment of pre-existing rights in Australia, the Court subsequently held that the land rights of the Richtersveld commun­ity can ‘only be extinguished by acts of state or legislation’.401 Batavis competit ad Indicana commercia dissertation; O Ulgen, ‘Developing the Doctrine of Aboriginal Title in South Africa: Source and Content’ (2002) 46 Journal of African Law 131, 140, 141–43. 395   Mostert, ‘Aboriginal Title’ (n 394) para 27. 396  ibid. 397  ibid. 398   RichtersveldSCA (n 349) [60]–[61]. 399   ibid [60] quoting Mabo (n 3) 57 (Brennan J). Note that, unlike Brennan J’s purported ‘preferable rule’, the ‘preferable rule’ referred to in ch 3 fully equates the inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights in land: ch 3 text to n 304ff, n 305. 400   See ch 3 text to n 191, n 305. 401   RichtersveldSCA (n 349) [66]. See also above text to nn 380–83.



South Africa Post-Richtersveld 343

The crucial point is that the SCA held that it followed from Brennan J’s view of the doctrine of continuity ‘that the customary law interest in the subject land held by the Richtersveld people survived [British] annexation’.402 It was seen in chapter three that Brennan J’s conclusion on the effect of a change in sovereignty on pre-existing land rights in Australia effectively reconciled the two formerly distinct doctrines of continuity and recognition and replaced them with a singular doctrine: ‘continuity pro-tempore’, which is an incident of radical title.403 It has also been seen that while the doctrine of continuity pro-tempore applies in conquered/ceded colonies, the effect of the doctrine in such colonies is the same as the conventional doctrine of continuity: pre-existing title cannot be extinguished by the sovereign’s prerogative to grant land.404 Since the SCA distinguished the decision in Mabo on the issue of extinguishment of continuing land rights, it effectively applied the doctrine of continuity pro-tempore in the conquered/ ceded context. Furthermore, since the SCA applied this doctrine to the ‘customary law interest’ of the Richtersveld community, the SCA’s decision effectively adopted the Mabo High Court’s approach to the origin of native title: as arising from Aboriginal laws/customs.405 Thus, despite suggesting that the doctrine of Aboriginal or native title does not fit comfortably into South African law, the SCA’s decision in fact applied essential aspects of the doctrine of native title. The customary law interest acknowledged by the SCA for the purposes of the Restitution Act was also heavily based on scholarship and case law regarding Aboriginal title406 and the SCA concluded: [A]t the time of annexation the Richtersveld people had a ‘customary law interest’ in the subject land within the definition of ‘right in land’ in the [Restitution Act]. The substantive content of the interest was a right to exclusive beneficial occupation and use, akin to that held under common law ownership.407

Nevertheless, the SCA did not decide whether any doctrine of Aboriginal title forms part of South African law or whether South African law should be developed to recognise Aboriginal rights. Neither did the Constitutional Court. ii  Constitutional Court The Constitutional Court limited its decision to the provisions of the Constitution.408 It made no explicit reference to the doctrine of Aboriginal title or the concept of the State/ Crown’s radical title. It distinguished the situation in South Africa from other jurisdictions409 – which have faced ‘the complex and difficult problems of dealing, after the   ibid [61].   See ch 3 text to n 191. It was seen in ch 2 that the conventional doctrine of continuity is found in a series of Privy Council decisions originating primarily from Africa. 404   Ch 3 text to nn 241, 245, 303. 405   Mabo (n 3) 15 (Mason CJ and McHugh J summarising the outcome of the case with the express consent of all members of the Court), 58, see also 51–52, 61–62 (Brennan J). See also discussion above n 193 regarding McNeil’s suggestion that Brennan J offered two sources for Aboriginal land rights. 406   RichtersveldSCA (n 349) [23]ff: including: McNeil (n 1); Bennett and Powell (n 384); Mabo (n 3) and Delgamuukw (n 20). 407   RichtersveldSCA (n 349) [29]. 408   Richtersveld (n 22) [37]. Coram: Chaskalson CJ, Langa DCJ, Ackermann, Goldstone, Madala, Mokgoro, Ngcobo, O’Regan, Sachs and Yacoob JJ. 409   Notably Canada and Australia. 402 403

344  Common Law Aboriginal Customary Title event, with the injustices caused by dispossessions of land, or rights in land, from indigen­ous inhabitants by later occupiers of the land’410 – on the basis that both the South African ‘interim Constitution and the Constitution have dealt expressly with this problem’.411 The interim Constitution412 and the Constitution413 apply to dispossessions of rights in land that took place after 19 June 1913 as a result of discriminatory laws or practices. The nominated date of 19 June 1913 is the date on which the Native Land Act414 commenced operation and deprived black South Africans of the right to own land and rights in land in the majority of South Africa.415 Although the Constitutional Court confirmed the SCA’s decision that the subject land had to be returned to the Richtersveld community,416 it differed in its conceptualisation of the community’s rights to the land. Indeed, despite the issue having been conceded in the SCA,417 the Constitutional Court allowed Alexkor Ltd to revive the issue of the legal nature and content of the Richtersveld community’s rights to the subject land.418 In holding that, prior to annexation, the nature and content of the Richtersveld community’s rights to the land must be determined by reference to Indigenous law and not by reference to the common law,419 the Court emphasised: While in the past indigenous law was seen through the common law lens, it must now be seen as an integral part of our law. Like all law it depends for its ultimate force and validity on the Constitution. Its validity must now be determined by reference not to common law, but to the Constitution. The courts are obliged by section 211(3) of the Constitution to apply customary law when it is applicable, subject to the Constitution and any legislation that deals with customary law. . . . It is clear, therefore that the Constitution acknowledges the originality and distinctiveness of indigenous law as an independent source of norms within the legal system. At the same time the Constitution, while giving force to indigenous law, makes it clear that such law is subject to the Constitution and has to be interpreted in the light of its values. Furthermore, like the common law, indigenous law is subject to any legislation, consistent with the Constitution, that specifically deals with it. In the result, indigenous law feeds into, nourishes, fuses with and becomes part of the amalgam of South African law. 420

While refraining from recognising Aboriginal title, the Constitutional Court described the nature of the Richtersveld community’s customary law ownership by reference to the conceptualisation of Aboriginal title in other legal systems.421 In this context, the   Richtersveld (n 22) [34].   ibid [35]. The interim Constitution (the Constitution of the Republic of South Africa Act 200 of 1993) came into force on 27 April 1994 and the current Constitution (the Constitution of the Republic of South Africa 1996) came into force on 4 February 1997. 412   Section 121(2). 413   Section 25(7). 414  Number 27 of 1913. 415   See H Mostert, JM Pienaar and AMA Van Wyk, ‘Land’ in WA Joubert and JA Faris, The Law of South Africa, vol 14, pt 1, 2nd edn (Durban, LexisNexis, 2010) para 142; Richtersveld (n 22) [37]. 416   Richtersveld (n 22) [102], [103]. 417   RichtersveldSCA (n 349) [26]. 418   Richtersveld (n 22) [42]–[45]. One of the reasons cited for allowing this argument to be revived was that ‘the proper characterisation of the title is crucial to any order that the LCC may ultimately make’: ibid [45]. 419   ibid [50]. 420   ibid [51]. 421   In this context, the Court referred to Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 (PC) 402–04: ibid [56]. The Court’s conceptualisation also shared a number of fundamental similarities with the (internal) content of Aboriginal customary title: see below text to n 461ff. 410 411



South Africa Post-Richtersveld 345

Richtersveld community’s customary law ownership was held to be ‘a right of communal ownership under indigenous law’.422 The content of the land rights ‘must be determined by reference to the history and the usages of the community’423 and ‘included the right to exclusive occupation and use of the subject land by members of the Community’.424 Indigenous ownership of the land also had economic implications as the Community had the right ‘to exploit its natural resources, above and beneath the surface’,425 including minerals and precious stones.426 Furthermore, the Constitutional Court expressly endorsed the SCA’s conclusion that the land rights of the Richtersveld community survived British annexation as a consequence of adopting the rule that ‘indigenous rights to private property in a conquered territory were recognised and protected after the acquisition of sovereignty’.427 Crucially, it has been seen that the rule which the SCA adopted, and the Constitutional Court endorsed, is the doctrine of continuity as expressed by Brennan J in Mabo.428 Thus, like the SCA, the Constitutional Court effectively applied the doctrine of continuity protempore in the conquered/ceded context. By applying this doctrine to the ‘customary law interest’ of the Richtersveld community as determined by reference to Indigenous law, the Constitutional Court’s decision also effectively endorsed Brennan J’s Aboriginal laws/customs source for Aboriginal land rights.429 The Court’s analysis of the ways in which the Richtersveld community’s Indigenous law ownership could be extinguished is also consistent with extinguishment of conventional Aboriginal title: requiring legislation or acts of State.430 In line with the foregoing analysis, Pienaar has observed that it is questionable whether Indigenous ownership in South Africa is a fundamentally different concept from Aboriginal title.431 Indeed, while it is clear that Indigenous law is an integral part of South African law depending for its ultimate force and validity on the Constitution,432 the Constitution does not ‘deny the existence of any other rights or freedoms that are recognized or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill [of Rights]’.433 Furthermore, section 39(2) of the Constitution relevantly provides that ‘when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights’ (emphasis added).434 However, and notwithstanding the LCC’s observation that recognition of Aboriginal title in some form or other ‘could be developed into

  Richtersveld (n 22) [62].   ibid [60]. 424   ibid [62]. 425  ibid. 426   ibid [62]–[64]. 427   Richtersveld (n 22) [69] referring to RichtersveldSCA (n 349) [61]. 428   See above text to n 398. 429   See above text to n 419. 430   Richtersveld (n 22) [70]. Although the Court was dealing with a conquered/ceded colony, not an inhabited settled colony like Australia, it has been seen that there are a number of objections to the Crown’s power to extinguish native title by executive grant per se in Australia: ch 3 text to nn 283–95. 431   GJ Pienaar, ‘Aboriginal Title or Indigenous Ownership – What’s in a Name? (Pt 1)’ (2006) 69 Journal of Contemporary Roman-Dutch Law 1, 7. 432   Richtersveld (n 22) [51]. 433   Constitution, s 39(3). 434   Section 39(2) of the Constitution is reproduced in Richtersveld (n 22) fn 28. 422 423

346  Common Law Aboriginal Customary Title the South African common law’,435 the Constitutional Court expressly avoided this issue. For the Court, the general rule was that the Constitution did not operate retro­actively, in the sense that: as at a past date the law shall be taken to have been that which it was not, so as to invalidate what was previously valid, or vice versa. . . . . . . the [interim] Constitution does not turn conduct which was unlawful before it came into force into lawful conduct.436

Nevertheless, it was clear that section 25(7) of the Constitution and the implementing provisions of the Restitution Act had ‘retroactive effect until at least 19 June 1913, because the very purpose behind their provisions [was] to provide redress for dispossessions that were valid under the law at that time’.437 The question whether these provisions had retroactive effect antedating 19 June 1913 was not so clear. The Court suggested there were ‘strong indications that they [did] not’438 but held that it was ‘not necessary to express a definitive view on this particular issue’ as there had been ‘no contention that any provision of the Constitution had retrospective effect antedating 19 June 1913’.439 Because the present case could be ‘dealt with effectively on the assumption that none of the provisions ha[d] such effect’,440 it followed that: The question whether a court, when considering the common law applicable at a time before both the interim Constitution and the Constitution came into force, may develop the common law in light of provisions of the Constitution as provided for by section 39(2) of the Constitution, does not . . . arise in this case. This is a complex matter which we leave open for future decision, as we have done before.441

While the Constitutional Court confirmed the SCA’s finding that the Richtersveld community had a customary law interest within the definition of the Restitution Act, they left open two crucial issues: the possibility that section 25(7) of the Constitution has retroactive effect antedating 19 June 1913 and, more importantly for present purposes, the possibility that South African common law can be developed to recognise Aboriginal title. Although both of these issues are critical where land has been appropriated through colonisation, and thus pre-1913,442 it will be seen in the next section that the doctrine of 435   RichtersveldLCC (n 366) [42]. The LCC’s findings are summarised in RichtersveldSCA (n 349) [7]: ‘The LCC found that the appellant’s forebears held a right in the subject land based on ‘beneficial occupation for a continuous period of not less than 10 years’ before the dispossessions relied upon, which allegedly took place after 1913 . . . The LCC, however, held that any rights the appellant’s forebears might have held in the subject land were extinguished when the entire Richtersveld was annexed by the British Crown on 23 December 1847 to become part of the Cape Colony . . . and that the land became Crown land upon annexation. The LCC further held that insofar as the appellant was later dispossessed of any rights in the subject land, such dispossession was not the result of “past racially discriminatory laws or practices” and consequently not of a kind that can found a claim for restitution under s 2(1) of the Act’. 436   Richtersveld (n 22) [35]. The general rule was established in Du Plessis v De Klerk 1996 (3) SA 850 (CC) [13]. 437   Richtersveld (n 22) [37]. 438   ibid [38]. 439  ibid. 440  ibid. 441  ibid. 442   cf Bennett (n 356) 445 who has argued that ‘where land had been appropriated through colonization, ie before a western system of property had been established, aboriginal title is the only basis on which claims for return can be based’. See also White Paper on South African Land Policy (Department of Land Affairs, April, 1997) para 4.14.2 which gives the government view that the judicial process system of the Restitution Act would be unworkable when applied to historic land claims.



South Africa Post-Richtersveld 347

Aboriginal customary title can be part of the common law of South African as a result of the application of the doctrine of continuity pro-tempore in the bipartite colonial context. C  The Doctrine of Continuity Pro-Tempore in Bipartite Colonial Contexts The statutory limitation of restitution of land to post-1913 dispossessions resulting from racially discriminatory laws and practices has been explained as a ‘pragmatic compromise’ which ‘reflects the consensus that the doctrine of aboriginal title should not form the basis of restitution claims in South Africa’.443 In this context, it has been argued that in respect of certain land, the doctrine of Aboriginal title might be barred on the basis that the land was terra nullius at colonisation.444 Post-Richtersveld, however, this argument cannot be sustained. In addition to holding that the colonial government ‘did not regard the Richtersveld as terra nullius when that territory was annexed’,445 the SCA emphasised that the treaties entered into with African tribes to the east and north of the Cape made it ‘clear that the African-occupied territories were not viewed as terrae nullius’.446 Although the Constitutional Court confined its consideration to the Richtersveld, it confirmed the SCA’s decision in this regard.447 The applicability of the doctrine of Aboriginal title in South Africa has also been objected to on the basis that the historical and demographic circumstances of South Africa are distinguishable from other countries in which the doctrine has been applied.448 It has been seen that the Constitutional Court distinguished the situation in South Africa because both the interim Constitution and the Constitution have dealt expressly with the problem of dispossessions of land from Aboriginal inhabitants. However, it has also been seen that while both the SCA and the Constitutional Court expressly refrained from deciding whether South African law should be developed to recognise Aboriginal title, both Courts effectively endorsed the applicability of the doctrine of continuity protempore vis-a-vis the Richtersveld community’s customary law ownership. This is crucial: the doctrine of continuity pro-tempore in a bipartite colonial context ensures the application of the doctrine of Aboriginal customary title. It has been seen that where a colony is initially acquired by conquest/cession, the doctrine of continuity protempore applies post-act of State not only to pre-existing land rights but to all pre-existing   Murphy, ‘The Restitution of Land after Apartheid’ (n 353) 121.   Bennett (n 356) 463–65; D van der Merwe, ‘Land Tenure in South Africa: a Brief History and Some Reform Proposals’ (1989) Journal of South African Law 663, 672. 445   Richtersveld (n 22) [47]. cf Bennett who argues that when the Dutch ceded the Cape Colony to Britain in 1806, Britain refused to recognise any aspect of the Indigenous customary law partly because it was deemed ‘uncivilised’ and partly because it was deemed discriminatory in terms of the ‘equal rights’ Ordinance 50 of 1828: TW Bennett, The Application of Customary Law in Southern Africa: The Conflict of Personal Laws (Cape Town, Juta & Co, 1985) 40–41; Bennett (n 356) 459–61; see also Bennett and Powell (n 384) 481–82. Note that the ratio of Richtersveld was that because the Crown had refused to recognise the Richtersveld community’s rights vis-a-vis the land, this was racially discriminatory for the purposes of the Restitution Act. 446   RichtersveldSCA (n 349) [47] quoting CJR Dugard, International law: A South African Perspective, 2nd edn (Cape Town, Juta & Co, 2000) 121. HR Hahlo and E Kahn, The South African Legal System and its Background (Cape Town, Juta & Co, 1968) 568 fn 8 also cite the purchase of the Cape district from the Khoi chief Schacher for £800 by the Raad van Politie. 447   Richtersveld (n 22) [55]: ‘In the present matter extensive evidence exists as to the nature of the indigenous law rights exercised by the Richtersveld Community as they evolved up until 1913’. 448   Murphy (n 353) 121. 443 444

348  Common Law Aboriginal Customary Title legal rights and means that, legislative expropriation apart, the acquiring sovereign has no power to extinguish pre-existing property rights. Where the British Crown acquires a colony that has previously been colonised by another nation – a subsequent conquest/cession – the doctrine of continuity pro-tempore is qualified by the bipartite colonial history of the territory to ensure that Aboriginal customary title, as a distinctive body of common law, applies automatically upon conquest/cession to protect the original Aboriginal inhabitants’ property rights. Indeed, the history of South Africa provides the paradigm case. The British Crown acquired sovereignty over the Cape Colony in 1806 by conquest from the Dutch sovereign which culminated in the Articles of Capitulation of 10 and 18 January 1806. This was formalised by the treaty between Great Britain and the Netherlands pursuant to which the Cape Colony was ceded to the British Crown.449 The Richtersveld was annexed450 by Britain on 17 December 1847451 pursuant to the Annexation Proclamation which incorporated the Richtersveld as part of the Cape Colony.452 The acquisition of the Richtersveld by the Proclamation was the equivalent of an acquisition by conquest or cession with the same consequences as the acquisition of the Cape Colony into which it was incorporated.453 In any event, even if the Richtersveld was not acquired by conquest, it was deemed to have been acquired by cession.454 As a result of its bipartite colonial history, there are two interrelated bases upon which the doctrine of Aboriginal customary title applies in South Africa. The first is when the British Crown acquired sovereignty of the Cape Colony by conquest and cession in 1806. Although the British Crown allowed Roman-Dutch law to continue under the doctrine of continuity pro-tempore, application of the doctrine of continuity pro-tempore was qualified by the bipartite history of the colony. This is because the Crown’s power to make new laws, recognise existing rights or extinguish them and create new rights in conquered/ceded colonies is subject to the fundamental principle that ‘undisputed’ property rights cannot be unilaterally expropriated in the absence of statutory authority.455 In this context, the fact that the original Aboriginal inhabitants of the Cape Colony had pre-existing property rights when the first foreign power colonised the territory was

  RichtersveldSCA (n 349) [49]; see also Richtersveld (n 22) [24], [41], [69].   Both the Constitutional Court and the SCA refer to the effect of ‘annexation’ on the Indigenous law ownership of the Richtersveld community: Richtersveld (n 22) [70]ff; RichtersveldSCA (n 349) [44]ff. Annexation includes the incorporation of adjoining territory by extending boundaries, and, like conquest and cession, is an act of State falling within the scope of the prerogative: Post Office v Estuary Radio Ltd [1968] 2 QB 740 (CA) 743. It is a process resembling cession in reverse and has attracted the rule that the existing laws of the territory annexed survive until altered: R v Jiswa (1894) 11 SC 387, 393 (Cape); see also Rogers v Squire (1978) 46 FLR 372 (NTSC) 377. It has been suggested that the conquest/cession rule applies only where the territory annexed has a system of law analogous to systems applied in settlements without a recognised legal system: Rogers v Squire (1978) 46 FLR 372 (NTSC) 379. It has also been commented that, ideally, ‘the extension of an existing legal system to additional territory should be expressly provided for by legislation’: BH McPherson, The Reception of English Law Abroad (Brisbane, Supreme Court of Queensland Library, 2007) 300. This occurred when Pondoland was annexed to the Cape in 1894: R v Jiswa (1894) 11 SC 387, 398 (Cape). 451   RichtersveldSCA (n 349) [30]. cf RichtersveldLCC (n 366) [25] citing ‘23 December 1847’. 452   Richtersveld (n 22) [66]. 453   RichtersveldSCA (n 349) [52]. The SCA also observed that ‘it was so regarded by the Colonial Government’: ibid. See also Richtersveld (n 22) [69]. 454   RichtersveldSCA (n 349) [52]. The SCA noted that ‘[f]or present purposes it is not necessary to decide whether it was the one or the other’: ibid. 455   See above text to n 358; ch 3 text to n 236ff. 449 450



South Africa Post-Richtersveld 349

never disputed.456 Whether initially classified as a conquered, ceded or inhabited settled colony, pre-existing property rights are accepted as an incident of a territory that was inhabited when first colonised. Indeed, the land rights of the Aboriginal inhabitants of the Cape Colony were expressly recognised and respected by the Crown when it acquired sovereignty in 1806.457 The qualification to the doctrine of continuity pro-tempore meant that, although the former civil (Roman-Dutch) system of land law was retained, so much of English common law as necessary to ensure that the original Aboriginal property rights were protected also applied. Thus, the doctrine of Aboriginal customary title as a distinctive body of English common law applied automatically upon British acquisition of South Africa and became part of the law of South Africa. However, because only so much of English common law applied as necessary to protect the Aboriginal property rights in the bipartite colonial context, the fact that the former system of law which was retained was a civil (RomanDutch) system was significant. In this context, the external dimension of Aboriginal customary title is crucial. Although Aboriginal laws/customs continue to operate within the internal dimension of Aboriginal customary title, the external dimension provides a normative structure which accommodates the title within the post-sovereignty legal system by concepts known to that legal system. The two branches of the external dimension, folkland and ancient demesne, are known to the common law (per se or its evolution)458 and confer allodial and inalienable fee simple title respectively. Since allodial ownership has its origins in civil law systems,459 the folkland branch of the external dimension of Aboriginal customary title applied upon acquisition of sovereignty by conquest/cession in South Africa to confer a generic allodial title which did not differ from one Indigenous group to another regardless of the specific content of the customary laws of each group.460 Because the Constitutional Court expressly limited its decision to the Constitution, it did not address the legal nature of any Aboriginal title that arose at sovereignty: the external dimension of Aboriginal customary title which defines its content vis-a-vis the State/Crown and others. The Court did, however, address the content of Indigenous ownership post-sovereignty. It made it clear that the content of the Richtersveld community’s Indigenous law ownership had to be determined by reference to Indigenous law and emphasised that: [I]ndigenous law is not a fixed body of formally classified and easily ascertainable rules. By its very nature it evolves as the people who live by its norms change their patterns of life. . . . . . . Throughout its history it has evolved and developed to meet the changing needs of the community. And it will continue to evolve within the context of its values and norms consist­ ently with the Constitution.461

It has been seen that this capacity for Aboriginal laws/customs to evolve and adapt is integral to the internal dimension of Aboriginal customary title which defines the rights   See above n 354.   RichtersveldSCA (n 349) [49]; Richtersveld (n 22) [68], [69]. cf above text to n 444, n 445. 458   See above n 126, text in para following n 133. 459  2 Bl Comm 47, 104–05, 106; F Hargrave and C Butler, Notes on Lord Coke’s First Institute, Or Commentary Upon Littleton (London, Luke Hanfard & Sons (for E Brooke, W Clarke and Sons, W Reed and J Cooke, Dublin) 1809) 65a note 3; HS Maine, Dissertations on Early Law and Custom, Chiefly Selected from Lectures Delivered at Oxford (London, John Murray, 1883) 342–43. 460   See above text to n 232. 461   Richtersveld (n 22) [52]–[53]. 456 457

350  Common Law Aboriginal Customary Title and obligations of the titleholders inter se and allows for recognition of post-sovereignty rights. Furthermore, both the SCA and the Constitutional Court endorsed the use of presumptions relating to proof of Indigenous customs to establish Indigenous ownership which correspond with the presumptions applying under the test for proof of Aboriginal customary title.462 The SCA observed that ‘our law requires for proof of a custom that it must be certain, uniformly observed for a long period of time and reasonable’.463 And although referring ‘to the requirement of English law that the custom must be immemorial, as opposed to Roman-Dutch law, which merely requires that the custom must be an old one’,464 it accepted that in practice there was no substantial difference between the two systems.465 The SCA concluded: The undisputed evidence in this case shows that at the time of annexation the Richtersveld people had enjoyed undisturbed and exclusive occupation of the subject land for a long period of time. The right was rooted in the traditional laws and custom of the Richtersveld people. The right inhered in the people inhabiting the Richtersveld as their common property, passing from generation to generation. The right was certain and reasonable.466

The Constitutional Court held that because indigenous law ownership is the way in which black communities have held land in South Africa since time immemorial, the inevitable impact of the Precious Stones Act’s failure to recognise indigenous law ownership was racially discriminatory against black people who were indigenous law owners.467

It follows that development of South African common law to recognise Aboriginal customary title which is accommodated within the post-sovereignty legal regime as a generic allodial title which arises at sovereignty to provide a normative structure governing continuing Indigenous customary ownership – and which can be established by judicial application of presumptions relating to proof of customs – is not inconsistent with the Constitutional Court’s decision. Indeed, a number of theories have been advanced for developing South African law to recognise the conventional doctrine of Aboriginal title468 and some commentators have expressly concluded that this doctrine ‘was received into the South African legal system’.469 It will be seen in chapter eight, however, that the conventional doctrine does not ensure that the content of Aboriginal title is determined by reference to Aboriginal law. Moreover, where a civil law system applied before British colonisation and continued post-colonisation (including continuing RomanDutch law in South Africa), only the folkland branch of the external dimension of Aboriginal customary title (allodial title) is consistent with the continuing civil law system.470   See above text to n 266ff.   RichtersveldSCA (n 349) [27]. 464  ibid. 465   ibid and the authorities cited. 466   ibid [28]. 467   Richtersveld (n 22) [96]. See also ibid [61]. 468   Including as part of ‘international customary law’ or ‘British colonial law’: Bennett and Powell (n 384) 481. See also Reilly (n 356) 514–15; Slattery (n 157) 269ff. 469   Bennett and Powell (n 384) 481. 470   cf Slattery who explains that ‘[a]s part of British colonial law, the common law of aboriginal rights was introduced automatically into British colonies upon their acquisition, irrespective whether their general legal systems were based on Indigenous law, English law, French law, Roman-Dutch law, or some other system’: above n 214. 462 463



South Africa Post-Richtersveld 351

The second basis upon which the doctrine of Aboriginal customary title applies in South Africa is when the British Crown annexed the Richtersveld by Proclamation in 1847. Because the acquisition of the Richtersveld by the Proclamation was the equivalent of an acquisition by conquest or cession with the same consequences as the acquisition of the Cape Colony into which it was incorporated, the above analysis regarding the doctrine’s application in the context of Britain’s acquisition of sovereignty over the Cape Colony by conquest and cession is apposite. Although both bases allow Aboriginal customary title to apply to (potentially) any land in South Africa, it is clear that since colonisation title to land in South Africa has been granted on the basis that land was not subject to Aboriginal customary title. In this context, it has been seen that principles of reconciliation are required to resolve conflicts between Aboriginal and non-Aboriginal interests in both Australia and Canada.471 The position in South Africa may, however, be different. The South African Constitutional Court in Richtersveld recognised a common law analogue to the inter-temporal rule. Judicial acceptance of Aboriginal customary title in South Africa may, therefore, see the courts apply a common law rule analogous to the inter-temporal rule. The inter-temporal rule is an established rule of international law and provides that where: [T]he rights of parties to a dispute derive from legally significant acts . . . very long ago . . . the situation in question must be appraised . . . in the light of the rules of international law as they existed at the time, and not as they exist today.472

This rule was applied by the International Court of Justice in its Advisory Opinion on Western Sahara473 when asked to determine whether the Western Sahara was terra nullius when it was colonised by Spain in 1884: [A] determination that Western Sahara was a ‘terra nullius’ at the time of colonization by Spain would be possible only if it were established that at that time the territory belonged to no-one in the sense that it was then open to acquisition through the legal process of ‘occupation’. Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terrae nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through ‘occupation’ of terra nullius by original title but through agreements concluded with local rulers.474

The Court found that at the time of colonisation, the Western Sahara was ‘inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them’ so that the territory was consequently not terra nullius capable of acquisition by occupation.475 It was seen in chapter three that although the Mabo High Court expressly disapproved of the application of the doctrine of terra 471   See above text to nn 322–30. Note that while reconciliation was discussed in the context of the conventional doctrine of Aboriginal title in Canada, it will be seen in ch 8 that both legal principle and authority support application of the doctrine of Aboriginal customary title in Canada. 472   DJ Harris, Cases and Materials on International Law, 3rd edn (London, Sweet and Maxwell, 1983) 165–67. In Island of Palmas Case (United States v The Netherlands) (1928) 2 RIAA 829 the rule was stated thus: ‘judicial fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be determined’. 473   Advisory Opinion on Western Sahara [1975] 1 ICJR 12. 474   ibid 39. 475  ibid.

352  Common Law Aboriginal Customary Title nullius to an inhabited country and thus challenged the classification of Australia as a territory acquired by occupation, it did not reject the doctrine of terra nullius in any sense of denying Australian sovereignty because the acquisition of sovereignty is not justiciable before municipal courts. However, since the inter-temporal rule is a rule of international law, it did not prevent the Mabo High Court from re-examining the common law consequences of an acquisition of sovereignty and thus reject the notion of terra nullius when determining the body of law that applied in the newly acquired territory of Australia.476 This is to be contrasted with the South African Constitutional Court which implicitly juxtaposed international law and common law in the context of determining the consequences of colonisation. While the inter-temporal rule requires that colonial acquisition of territory under international law must be examined according to the conditions and rules in existence at the time of colonisation, not a later date, the Court surmised that at common law: [W]hen it comes to the legal effect of other events prior to 19 June 1913, these must be adjudged according to the law then prevailing. So, for example, when considering the effect of the British annexation of the Cape in 1806 and its impact on acquired rights, or of the 1847 Proclamation or other legislative or administrative acts, the then prevailing law must be applied.477 (emphasis added)

Thus, the Court posited a common law inter-se-temporal rule. Such a rule would apply post-sovereignty and have the effect that a change in the law to recognise Aboriginal customary title would not destroy any land title obtained in accordance with the rules applicable before the change. This would ensure the legitimacy of all titles granted by the new sovereign before judicial recognition of Aboriginal customary title because the retrospective application of Aboriginal customary title would be limited to unalienated land. Only after the date of its judicial recognition would the doctrine of Aboriginal customary title render any attempt to grant land subject to Aboriginal customary title void. Attempts to justify the inter-se-temporal rule in South Africa would arguably be based on the suggestion that the successful application of Aboriginal title in countries such as Australia, Canada, New Zealand and America is attributed, at least in part, ‘to an abundance of unused state land in relation to a small native population’, whereas ‘over three-quarters of the inhabitants of South Africa could be considered aboriginal’.478 The fact remains, however, that such a rule would serve to perpetuate the discriminatory treatment of the original Aboriginal inhabitants of South Africa. D  The First Limb in South Africa It will be recalled that pursuant to the first limb of the doctrine of common law Aboriginal customary title, post-sovereignty Aboriginal customary rights analogous to incorporeal hereditaments become the common law.479 While property law in South Africa is governed   See ch 3 text to n 103ff, n 106.   Richtersveld (n 22) [41]. See also RichtersveldLCC (n 366) [42] where the Court expressly juxtaposed international law and common law in this context. 478   Bennett (n 356) 475. 479   See above text to n 36ff. 476 477



Conclusion 353

by civil law principles, the Constitutional Court has recognised that Indigenous customary law interests in land must be ‘seen as an integral part of [South African] law’.480 Nevertheless, application of the first limb in South Africa would arguably be limited to land which was res nullius (unowned) when the relevant customary land right was acquired. That is, while Aboriginal customary rights can be acquired over land which belongs to another claiming a common law title, land which is owned in South Africa is subject to the civil law where the concept of incorporeal property rights is either rejected481 or given limited acknowledgment.482 VI CONCLUSION

Although the Mabo High Court preserved the distinction between settled territories, on the one hand, and conquered/ceded territories, on the other, for the purpose of ascertaining the general law that is to govern a new territory, in the context of an inhabited settled territory it modified the doctrine of reception in its application to land law. Consequently, the Crown acquired a radical title to all land upon acquisition of sovereignty; the doctrine of continuity pro-tempore allowed pre-existing property rights to continue, until validly extinguished; and the doctrine of tenure ad veritatem accommodated titles not derived from Crown grant (including non-extinguished pre-existing title). In this way, the High Court recognised and accommodated native title within Australian land law. Crucially, the new system of land tenure in post-Mabo Australia also accommodates the doctrine of common law Aboriginal customary title. Under this doctrine, Aboriginal customary law can be a valid source of non-Crown derived common law title to land whether the existence of such title arose before or after sovereignty. While the doctrine has two limbs, the second is potentially most important. Under the first limb, Aboriginal customary rights to land acquired after Crown sovereignty give rise to a common law title on the basis that Aboriginal customary rights analogous to incorporeal hereditaments become the local common law. While such customary rights can be acquired in respect of land whether or not it has been brought within the doctrine of tenure ad veritatem by post-sovereignty Crown grant, the content of such rights will necessarily be less than full ‘title’ in the context of land subject to other property rights due to the reasonableness requirement for a valid custom. Aboriginal customary rights acquired in respect of unalienated land (land which has neither been granted by the Crown nor appropriated to the Crown) are, therefore, more significant. Where no other rights of property are affected, substantial and novel rights would not be unreasonable: Aboriginal customs recognising an entitlement amounting to ownership of land can be acquired. In addition to the large areas of land which remained (and remain) unalienated after Crown sovereignty, once customary rights have been acquired they cannot be lost by disuse or abandonment and they can only be extinguished in the same way as any other common law rights.   Richtersveld (n 22) [51]. See also above n 420.   See, eg, JTR Gibson (ed), Wille’s Principles of South African Law, 7th edn (Cape Town, Juta & Co, 1977) 412. One of the reasons advanced for excluding incorporeal rights as property is that it is jurisprudentially impossible and illogical to recognise that one right could be the object of another right. 482   The courts have on occasion acknowledged incorporeal property rights, eg, a usufruct exercised over mineral rights: Ex p Eloff 1953 (1) SA 617 (T). 480 481

354  Common Law Aboriginal Customary Title Under the second limb, title to land acquired before Crown sovereignty pursuant to Aboriginal laws/customs continues post-sovereignty and is given the force of law by the common law: Aboriginal customary title. While the title has its origins in presovereignty Aboriginal legal/customary systems, it is accommodated within the legal system imposed as a consequence of Crown sovereignty by concepts known to that legal system (per se or its evolution). There is, therefore, an internal and external dimension to the content of the title. Aboriginal laws/customs continue to operate within the internal dimension to define the rights and obligations of the titleholders inter se. The external dimension provides the normative structure which accommodates the title within the post-sovereignty legal system; it defines and protects the title vis-a-vis the Crown and third parties. The external dimension has two branches: Aboriginal customary title can be accommodated post-sovereignty on the basis that the law relating to tenure in ancient demesne (a traditional exception to the feudal doctrine of tenure equivalent to an inalienable fee simple) or folkland (an allodial system of pre-feudal landholding) applies to land which is subject to pre-existing title at sovereignty. Indeed, the significance of the date the Crown asserted sovereignty is that this is when the pre-existing title is accommodated within the legal regime imposed as a consequence of sovereignty. Viewed externally, the common law applies at the time of Crown sovereignty to confer a generic allodial or inalienable fee simple title which does not differ from one Aboriginal group to another regardless of the customary laws of each group. Both branches of the external dimension confer absolute ownership of land for any purpose whatsoever subject to the qualification that it is inalienable other than to the Crown. Viewed internally, the title is not fixed at the time of Crown sovereignty. The legal/customary systems of each group continue to evolve and adapt so that post-sovereignty Aboriginal land rights and the decision-making authority of Aboriginal groups are recognised. The internal dimension ensures that rights to land which are recognised are those ‘best adapted to the contemporary needs of the most disadvantaged sector of the Australian population, that is those laws developed by systems of internal Indigenous governance to cope with post-colonisation realities’.483 That the content of Aboriginal customary title has an external and internal dimension is consistent with the principles which emerge from McNeil and Slattery’s analyses regarding the conceptualisation of conventional Aboriginal title. It is also germane to the title’s source: because the internal content is defined by Aboriginal laws/customs and the external content is defined by concepts known to the post-sovereignty legal system, the source of Aboriginal customary title is the relationship between pre-existing Aboriginal laws/ customs and the common law. Indeed, Aboriginal customary title is a distinctive body of common law which applies automatically upon acquisition of an inhabited settled colony as a result of the modified doctrine of reception. The title is part of the colonial law determining the law which is to govern the new colony and becomes the common law. Importantly, while the doctrinal underpinnings for Aboriginal customary title are consistent with the Crown’s radical title connoting a bare legal title to land, the doctrine of tenure ad veritatem and the doctrine of continuity pro-tempore, they are also consistent with the conventional views of the Crown’s radical title, the doctrine of tenure and the doctrine of continuity. Furthermore, the doctrine is not limited to inhabited settled 483   S Brennan, ‘Native Title in the High Court a Decade after Mabo’ (2003) 14 Public Law Review 209, 213–14.



Conclusion 355

colonies: the doctrine of continuity pro-tempore ensuring that Aboriginal customary title applied in bipartite colonial contexts when Britain acquired a colony by conquest/ cession, irrespective of whether the legal regime applying post-British colonisation was based upon the common law or civil law. Where Britain initially acquired a colony by conquest or cession, a simple application of the doctrine of continuity pro-tempore ensured that, whether by the laws the new sovereign allowed or established, the acquiring sovereign could not interfere with the pre-existing property rights of the conquered/ceded people by exercise of its prerogative to grant land. Where a colony with a bipartite colonial history was conquered by or ceded to Britain, application of the doctrine of continuity pro-tempore was qualified to ensure that so much of English common law as was necessary to protect the original Aboriginal property rights under the doctrine of Aboriginal customary title automatically applied. In this context, where a civil law system applied in the colony both before and after its acquisition by Britain (as in the case of Roman-Dutch law in South Africa), because allodial ownership has its origins in civil law, the folkland branch of the external dimension of Aboriginal customary title applied to confer a generic allodial title which did not differ from one Aboriginal group to another as the normative structure governing the specific Aboriginal laws/customs of each group which remained dynamic. The doctrine of Aboriginal customary title is, therefore, consistent with both common law and civil law principles. The South African Constitutional Court decision in Richtersveld is not inconsistent with the development of South African law to recognise Aboriginal customary title which is accommodated within the post-sovereignty legal regime as a generic allodial title which arises at sovereignty to provide a normative structure governing continuing Indigenous customary ownership – and which can be established by judicial application of presumptions relating to proof of customs. The test for proof of Aboriginal customary title ensures that intolerable burdens are no longer placed on Aboriginal claimants. Pre-sovereignty Aboriginal occupation of land need only have been part of a system of laws/customs by which land was used in a meaningful way from the Aboriginal perspective: purposive occupation. The Aboriginal perspective is appropriate for determining what constitutes meaningful use of land because before the Crown asserted sovereignty there was no other perspective. The presovereignty laws/customs of an identifiable Aboriginal group pursuant to which land was purposively occupied is the foundation of Aboriginal customary title. Proof of the existence of pre-sovereignty laws/customs upon which purposive occupation is based is the threshold question and raises a presumption of Aboriginal customary title. There is no requirement to identify every element of the laws/customs or to identify the rights regarding land which are possessed under those laws/customs. There is also no requirement to prove continuity and/or constancy of laws/customs since sovereignty – requirements which undermine any retrospective test for recognising Aboriginal land rights developed more than two centuries after sovereignty purportedly to remedy the injustices caused by the fact that since sovereignty (and until the development of the retrospective test) Aboriginal claims to land were utterly disregarded. Since Aboriginal customary title has its origins in customary rights acquired pre-sovereignty, it continues post-sovereignty by operation of law. The continuity limb of the doctrine of continuity pro-tempore ensures that the title to land Aboriginal people had by virtue of their own laws/customs pre-sovereignty continues post-sovereignty. Moreover, where it

356  Common Law Aboriginal Customary Title is proved that a customary right (pursuant to which purposive occupation and thus Aboriginal customary title is based) existed before the beginning of a period of non-user (including non-user for at least 100 years) it comes within the well-established rule that once a customary right has been acquired it cannot be lost by disuse or abandonment. And because the common law has always recognised the capacity of customs to evolve, the internal dimension of Aboriginal customary title defines its content vis-a-vis the titleholders inter se by Aboriginal laws/customs which, as part of the substantive law of Australia, continue to evolve and adapt to meet changing circumstances. The burden of proving the existence of pre-sovereignty laws/customs upon which purposive occupation and thus Aboriginal customary title is based is also reduced by the application of specific presumptions relating to proof of customs at common law. Evidence of the existence of the relevant laws/customs existing as far back as living witnesses can remember raises a presumption that the laws/customs existed before sovereignty. And since the existence of pre-sovereignty laws/customs upon which purposive occupation is based is the threshold question, it raises a presumption of Aboriginal customary title. The burden of rebutting the presumption of the title then shifts to the Crown or whoever else challenges its existence. The approach under the doctrine of Aboriginal customary title recognises that the rules of evidence must be approached in light of the difficulties in proving a title originating where there were no written records. Oral history evidence must be accommodated, for to do otherwise would impose an impossible burden of proof on Aboriginal claimants. Crucially, the test for proof of Aboriginal customary title means that the onus of proving title to particular land can be met by relying on oral evidence of the existence of pre-sovereignty laws/customs pursuant to which land was purposively occupied and the common law presumptions and rules relating to proof of customs – whether or not the titleholders currently are, or continued post-sovereignty to be, in physical occupation of the land. It also means that although a native title claim to certain land may not be supported on the basis of particular laws/customs, an Aboriginal customary title claim to the same land may be. Because Aboriginal customary title is a common law title, it can only be extinguished in the same way as any other validly acquired common law title. In particular, and unlike native title, it is protected from interference by exercise of the Crown’s prerogative. While native title may be extinguished permanently by inconsistent Crown grant (or where there ceases to be continuity of laws/customs since sovereignty), the laws/ customs upon which the (extinguished) native title was based are capable of supporting an Aboriginal customary title claim. Moreover, any attempt (past or present) by the Crown to grant third-party interests on land subject to Aboriginal customary title is invalid. It is, however, clear that the Crown has purported to grant third-party interests on the basis that Aboriginal customary title was not a common law title. These historical facts require that principles of reconciliation govern the legal effect of recognising Aboriginal customary title to ensure that one grave injustice is not remedied by committing another. While third-party interests (even if invalid) cannot be ignored, they can also not be permitted to prevail over Aboriginal customary title. Aboriginal titleholders should, therefore, ‘receive replacement lands, or compensation for the loss of their Aboriginal title lands’ from the real wrongdoers – the governments.484   McNeil (n 323) 22, 23.

484



Conclusion 357

The doctrine of common law Aboriginal customary title applies in inhabited settled colonies and conquered/ceded colonies with a bipartite colonial history.485 In colonial or colonial-type situations, courts are often presented with a conflict of laws problem: two or more systems of law are potentially applicable to a particular problem and the court has to choose between them. However, if Aboriginal laws/customs are regarded as part of the common law as described in this chapter (whether arising before or after the acquisition of sovereignty) there would only be one system of law with particular rules relating to different forms of landholding: a situation which already exists within many property law regimes, including Australia’s. Furthermore, although the full concept of terra nullius has to be abolished (that is, in its application to questions of sovereignty at international law and not merely – as has occurred – in its application to questions of property at common law) before true Aboriginal sovereignty can be acknowledged, recognition of a title based upon Aboriginal laws/customs is a way of giving legal effect to a degree of self-determination: a limited form of Aboriginal sovereignty in relation to land. Despite considerable differences, the histories of both Canada and New Zealand share important common features with Australia: not only were these countries originally inhabited solely by Aboriginal peoples, Great Britain asserted sovereignty over them and English law was also generally introduced. Only the history of Canada, however, has parallels with the bipartite colonial history of South Africa. Thus, the remaining chapter considers the application of the doctrine of common law Aboriginal customary title in Canada.

485   Where Britain was the first colonising power to acquire a colony and the colony was acquired by conquest or cession, the situation vis-a-vis the Aboriginal inhabitants involves a simple application of the doctrine of continuity pro-tempore: whether by the laws which the Crown allowed or established, the Crown could not by exercise of its prerogative to grant land interfere with the pre-existing property rights of conquered/ceded people: see above text following n 358.

8 Canada: Application and Implications of the Doctrine of Common Law Aboriginal Customary Title

I

N THE PRECEDING chapter it was seen that the doctrine of common law Aboriginal customary title applied automatically upon British acquisition of sovereignty over Australia and South Africa: an inhabited settled colony and a colony acquired by conquest and cession in a bipartite colonial context respectively. It was also seen that the second limb of the doctrine is potentially most important in the context of acknowledging the historical reality of Aboriginal land rights. Pursuant to this limb, title to land Aboriginal people had by virtue of their own laws/customs before Crown sovereignty continued post-sovereignty as a common law title: Aboriginal customary title. This chapter considers the application of Aboriginal customary title in Canada and the concomitant legal implications. In all Canadian jurisdictions1 apart from Quebec the applicable legal regime is the common law. Like the position in Australia, therefore, modern Canadian property law traces its history to English ancestry and the doctrine of tenure remains the basis of property law in the common law provinces and territories of Canada. Although it has generally been assumed that the feudal doctrine of tenure continues to serve as a foundation of Canadian property law,2 when the interrelated issues of the constitutional status of, and the reception of English law into, the Canadian colonies is reconsidered it will be seen that (as in the case of Australia post-Mabo)3 the feudal doctrine as received pursuant to the conventional doctrine of reception is inapplicable in Canadian provinces which were classified as settled colonies despite being legally inhabited. While other Canadian provinces and territories were conquered and/or ceded colonies with bipartite 1   Canada was created by Confederation of three British colonies in 1867: Nova Scotia, New Brunswick and the province of Canada (present-day Ontario and Quebec). There are now 10 provinces and three territories in Canada. The following are the dates each of the Canadian provinces either joined Confederation or were created out of the North-west Territories: Nova Scotia 1 July 1867; New Brunswick 1 July 1 1867; Ontario 1 July 1867; Quebec 1 July 1867; North-west Territories 15 July 1870; Manitoba: 15 July 1870; British Columbia 20 July 1871; Prince Edward Island 1 July 1873; Yukon 13 June 13 1898; Saskatchewan 1 September 1905; Alberta 1 September 1905; Newfoundland 31 March 1949; Nunavut 1 April 1999. 2   See B Ziff ‘Warm Reception in a Cold Climate: English Property Law and the Suppression of the Canadian Legal Identity’ in J McLaren, AR Buck and NE Wright (eds), Despotic Dominions: Property Rights in British Settler Societies (Vancouver, UBC Press, 2005) 103, 107: ‘to this day, [the 1925 English statutory reform of land law] marks out the starkest differences between the English law and the governing land law in most of the provinces’. See also JE Cote, ‘The Reception of English Law’ (1977) 15 Alberta Law Review 29, 67; Delgamuukw v British Columbia [1997] 3 SCR 1010 (SCC) – see discussion below text following n 368. 3   Mabo v Queensland (No 2) (1992) 175 CLR 1 (HCA).



Canada 359

histories, Quebec is the only such colony with a civil system of law. The position in Quebec is, therefore, analogous to that in South Africa. Although recognition of Aboriginal property rights in Canada (as early as 1888) predates the 1992 recognition of native title in Australia, acknowledgment of the Crown’s radical (or underlying) title to land upon acquisition of sovereignty in both jurisdictions allowed for recognition of Aboriginal land rights. Canadian courts have defined and redefined the law regarding Aboriginal title since the early 1970s. Moreover, the Canadian Constitution has recognised Aboriginal rights since 1982.4 Not only does Canada’s constitutional recognition of Aboriginal rights pre-date South Africa’s 1993 constitutional recognition of the ‘originality and distinctiveness of indigenous law as an independent source of norms within the [South African] legal system’,5 but, unlike the position in South Africa, following constitutional recognition in Canada there have been numerous judicial decisions dealing with Aboriginal title to land. The leading Canadian case on Aboriginal title is Delgamuukw v British Columbia.6 Canadian courts apply the conventional doctrine of Aboriginal title as an original mode of acquiring land based on the fact of exclusive occupation at the time the Crown asserts sovereignty. While Canadian jurisprudence has recognised that the conceptualisation and establishment of Aboriginal title should incorporate the Aboriginal perspective, it will be seen that in addition to problems inherent in the Delgamuukw decision itself, post-Delgamuukw the Supreme Court of Canada has engaged in an exercise of translation preoccupied with common law conceptions of property. The conventional doctrine of Aboriginal title as applied by the Canadian courts also requires continuity between present and pre-sovereignty occupation and does not recognise post-sovereignty rights. Furthermore, notwithstanding constitutionally entrenched protections, apparently the recognised rights can be infringed by the federal government in ways other common law property rights cannot, provided the test of justification is satisfied.7 Crucially, it was   Section 35(1) of the Constitution Act 1982.   Alexkor Ltd v The Richtersveld Community [2003] ZACC 18, 2004 (5) SA 460 [50]. See also ch 7 text to n 408ff. 6   Above n 2. See also R v Marshall; R v Bernard 2005 SCC 43, [2005] 2 SCR 220 discussed below text to n 408ff. 7  In Delgamuukw (n 2) [160] Lamer CJ stated that Aboriginal rights ‘may be infringed, both by the federal . . . and provincial . . . governments’, as long as the infringement can be justified (emphasis added). McNeil has, however, convincingly argued that there is ‘a fundamental inconsistency’ in Lamer CJ’s judgment in Delgamuukw: it arises from ‘his treatment of the doctrine of interjurisdictional immunity on the one hand and provincial authority to infringe Aboriginal rights on the other’ (emphasis added): K McNeil, ‘The Métis and the Doctrine of Interjurisdictional Immunity: A Commentary’ in F Wilson and M Mallet (eds), Métis-Crown Relations: Rights, Identity, Jurisdiction, and Governance (Toronto, Irwin Law, 2008) 289, 301. The doctrine of interjurisdictional immunity is invoked when valid legislation of general application enacted by one order of government falls within a core area of the other order of government’s legislative jurisdiction. Exclusive jurisdiction over ‘Indians, and Lands reserved for the Indians’ was assigned to the Parliament of Canada by section 91(24) of the Constitution Act 1867 and the application of the doctrine of interjurisdictional immunity in this context has been established and confirmed by the Supreme Court of Canada: see R v Morris 2006 SCC 59, [2006] 2 SCR 915; Canadian Western Bank v Alberta 2007 SCC 22, [2007] 2 SCR 3; British Columbia (Attorney General) v Lafarge Canada Inc 2007 SCC 23, [2007] 2 SCR 86. Lamer CJ’s analysis of interjurisdictional immunity in Delgamuukw affirmed the decision in Dick v R [1985] 2 SCR 309 (SCC) that ‘provincial laws that touch on the Indianness at the core of section 91(24) cannot apply to Indians of their own force’ and that ‘Aboriginal rights lie within this core’: McNeil, ‘The Métis and the Doctrine of Interjurisdictional Immunity’, 301. ‘Aboriginal rights cannot’, therefore, ‘be infringed by provincial laws, unless those laws are referentially incorporated into federal law by section 88 of the Indian Act’: ibid. It follows that Lamer CJ ‘either meant that the infringement could occur through the operation of section 88 or, more likely, he failed to take section 91(24) and interjurisdictional immunity into account in concluding that the provinces can infringe Aboriginal rights’: ibid 302. Because the doctrine of interjurisdictional immunity applies only to constitutionally valid provincial laws, before deciding whether the justification test applies to provincial legislation, ‘Lamer C.J. should have 4 5

360  Canada seen in the preceding chapter that the doctrine of Aboriginal customary title gives the force of law to Aboriginal laws/customs, recognises pre-sovereignty rights irrespective of whether there has been continuity of laws/customs since sovereignty, recognises postsovereignty rights, and ensures that the recognised rights are protected in the same way as other common law property rights. While the doctrinal underpinnings for Aboriginal customary title are consistent with both the conventional view and the Mabo High Court’s restatement of the Crown’s radical title, the doctrine of tenure and the doctrine of continuity, ‘the analysis of the basis of aboriginal title in the landmark decision of the High Court in Mabo . . . is persuasive in the Canadian context’.8 Moreover, it will be seen that Canadian legal principle and authority – pre and post-Delgamuukw as well as Delgamuukw itself – support the application of Aboriginal customary title in Canada, including Quebec. I  THE RECEPTION OF LAW IN CANADA: THE CONSTITUTIONAL STATUS OF THE CANADIAN PROVINCES AND TERRITORIES RECONSIDERED

A  Reception of Land Law in the Canadian Provinces and Territories The common law was received in the Canadian provinces and territories, apart from Quebec, in different ways. English property law principles were received into parts of Canada through the conventional doctrine of reception which, as seen in chapters one and three, applies to colonies acquired by settlement. In the case of a settled colony, the common law of England became the law of the colony in so far as it was applicable to colonial conditions.9 Pre-Mabo, however, the only category of land that could be acquired by settlement at common law was land that was ‘desert and uncultivated’.10 The common law ‘desert and uncultivated’ doctrine11 is broadly analogous to the international law doctrine of terra nullius which applied to the acquisition of new territory by occupation12 on the basis that it was uninhabited, whether such uninhabited status asked whether the provinces have the constitutional authority to infringe Aboriginal rights . . . Had he done so and concluded, as he did in Delgamuukw, that Aboriginal rights are within the core of section 91(24), he should have applied the Dick case and held that the provincial law could not apply of its own force if it infringed an Aboriginal right’: ibid 303. As seen in ch 3, McNeil has also shown that the Crown does not have power to extinguish any property rights of its subjects ‘whatever their source’ by prerogative executive action: ch 3 text to nn 293–94; K McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (1996) 1 Australian Indigenous Law Reporter 181, 196–97; K McNeil, ‘Aboriginal Title as a Constitutionally Protected Property Right’ in K McNeil, Emerging Justice? Essays on Indigenous Rights in Canada and Australia (Saskatoon, University of Saskatchewan Native Law Centre, 2001) 292, esp 293 (reprinted from O Lippert (ed), Beyond the Nass Valley: National Implications of the Supreme Court’s Delgamuukw Decision (Vancouver, The Fraser Institute, 2000) 55–75). 8   R v Van der Peet [1996] 2 SCR 507 (SCC) [38] (Lamer CJ for the majority of the Court). See also ibid [39], [40], [63]. Mabo has also been referred to by other Canadian courts, including Delgamuukw (n 2) [153] (Lamer CJ for the majority of the Court). 9   See ch 1 text to n 208; ch 3 text to n 97. A different position prevailed if a country was ceded or conquered. In that case, the law in force at the time of cession or conquest remained in force unless and until it was altered by or under the authority of the sovereign: see ch 1 text to n 209; ch 3 text to n 211. 10   According to Blackstone’s classic exposition: 1 Bl Comm 104. 11   The phrase is Blackstone’s: ibid. It is discussed in Mabo (n 3) 34–37 (Brennan J); Western Australia v The Commonwealth (1995) 183 CLR 373 (HCA) 427 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ). Note, however, that in Mabo (n 3) 34 Brennan J actually uses the phrase ‘desert uninhabited’. 12   Also referred to as ‘discovery’.



The Reception of Law in Canada 361

was factual or deemed legal in the sense that, despite being inhabited in fact, the land was uncultivated or its Indigenous inhabitants were regarded as not ‘civilised’ or not organised in a society that was united permanently for political action. Thus, the common law ‘desert and uncultivated’ doctrine classified inhabited land as uninhabited for the purpose of the doctrine of reception. Pre-Mabo, when sovereignty of a territory was acquired under the doctrine of terra nullius for the purpose of international law, the territory was treated as ‘desert and uncultivated’ country for the purpose of the common law. The ‘occupation of’ and the ‘settlement of’ an inhabited territory were equated with the ‘occupation of’ and the ‘settlement of’ an uninhabited territory for the purpose of legitimising the acquisition of sovereignty in international law and in ascertaining the law of the territory on colonisation at common law respectively.13 It has generally been accepted that the British Crown acquired sovereignty over British Columbia by occupation of an uninhabited territory notwithstanding the fact that the territory was occupied by Aboriginal peoples with a social and political organisation at the time.14 Furthermore, the colonial acquisition of British Columbia is characterised, like Australia was pre-Mabo, as one of settlement of a legally uninhabited colony for reception purposes at common law:15 English property law was, therefore, automatically received.16 Similarly, despite the British Crown acquiring title derivatively by conquest and cession from France to other parts of Canada, the Atlantic provinces17 of Nova Scotia,18

13   ‘Occupation’ and ‘settlement’ are used interchangeably in respect of both the common law and the international law doctrines relating to the classification of inhabited land as uninhabited. However, and notwithstanding that the term ‘settlement’ has often been preferred by Australian judges and writers when referring to the international law method of acquisition known as ‘occupation’ (see, eg, Coe v Commonwealth (1979) 24 ALR 118 (HCA) 129), as the common law term is ‘settlement’ (Mabo (n 3) 33), ‘occupation’ will be employed to refer to the international law doctrine. 14  See K Roberts-Wray, Commonwealth and Colonial Law (London, Stevens & Sons Ltd, 1966) 831; K McNeil, Common Law Aboriginal Title (Oxford, Clarendon Press, 1989) 268 and authorities cited in fn 98. 15   Cote, ‘The Reception of English Law’ (n 2) 91. British Columbia is the product of the fusion of the three settled colonies of Vancouver’s Island, the southern part of the mainland of present-day British Columbia, and the northern part of the mainland of the present-day British Columbia (Caledonia or the Stickeen Territories). For a detailed discussion of the reception of English law in this province see RG Herbert, ‘A Brief History of the Introduction of English Law into British Columbia’ (1954) 2 UBC Legal Notes 93. 16   Legislation in each Canadian province specifically receives English law as of a certain date. Pursuant to the 1871 Terms of Union by which British Columbia became a province of Canada, the existing laws of British Columbia were continued, including an 1866 Ordinance of the British Columbian Legislative Council adopting English laws in 1858 (The English Law Ordinance, BC 1867, c 7) which itself continued an 1858 Proclamation of the Governor of British Columbia: British Columbia Terms of Union, 1871, RSC 1985, App II, No 10 (originally named Order of Her Majesty in Council Admitting British Columbia into the Union, 1871). 17   The Maritime provinces is a region in Eastern Canada consisting of three provinces: New Brunswick, Nova Scotia and Prince Edward Island. They are a sub-region of Atlantic Canada, which also includes the northeastern province of Newfoundland and Labrador. 18   Although France ceded Nova Scotia to Britain by the Treaty of Utrecht in 1713, the area has always been regarded as a settled colony: see Uniacke v Dickson (1848) 2 NSR 287 (SCNS), the leading case on the reception of English law in the area. cf Re Provincial Fisheries (1896) 26 SCR 444 (SCC) 530. Cote points out that although the date for the reception of English law has been said to be 3 October 1758 (the date on which the first legislative assembly met), it has also been suggested that the date should be 1784 (when New Brunswick split off to form a separate colony) and there is judicial authority for the year 1660 (Scott v Scott (1970) 15 DLR (3d) 374) (NBSC): Cote (n 2) 87. At Confederation, the British North America Act 1867 (now Constitution Act 1867) affirmed pre-existing property laws in Nova Scotia.

362  Canada New Brunswick, Prince Edward Island,19 and Newfoundland and Labrador,20 are treated as settled colonies for reception purposes.21 The characterisation of the colonial acquisition of these colonies as one of settlement rather than conquest and/or cession meant that the reception of English land law was automatic; it also disregarded the bipartite colonial history of the territories. Indeed, it will be seen that the Canadian Supreme Court has held that the nature and content of Aboriginal rights in Canada does not depend on whether the land in question was first colonised by Britain or France: the applicable law is the common law of Canada.22 It was seen in chapter seven, however, that the bipartite colonial context of a colony is crucial to the question of the nature and content of title held under the doctrine of Aboriginal customary title where a civil law (rather than a common law) system applies post-conquest/cession. Because the province of Quebec is governed by the rules for conquest, its system of property law differs in form and substance from that in the rest of Canada: it is based on the civil law of France with its origins in Roman law. Quebec was originally colonised by France which imposed French law (la coûtume de Paris) under the principles relating to conquered/ceded colonies: the law in force in a colony at the time of cession or conquest remained in force unless and until it was altered by or under the authority of the new sovereign. The British conquest of Quebec in 1759 and the capitulation of Montreal in 1760 were followed by the cession to Great Britain of New France in 1763 by the Treaty of Paris.23 English property law was apparently introduced into the colony by the Royal Proclamation of 1763.24 In 1774, however, the passage of the Quebec Act25 restored the French law previously in force in Quebec for matters of private law, including prop19   Prince Edward Island and the part of New France subsequently included in New Brunswick were transferred from France to Great Britain by the Treaty of Paris in 1763. New Brunswick was part of Nova Scotia until it was separated from Nova Scotia in 1784 to form a distinct colony by the Imperial Statute 31 Geo 3 c 2. While this Imperial statute repealed any Nova Scotia statutes in force, it did not change the reception date of 3 October 1758: Cote (n 2) 87; cf the New Brunswick courts which have held that 1660 is the date of reception of English Laws: Scott v Scott (n 18). At Confederation, the British North America Act 1867 (now Constitution Act 1867) affirmed pre-existing property laws in New Brunswick. Prince Edward Island was also part of Nova Scotia until separated in 1769 by the commission of Governor Patterson (dated 4 August 1769): Kelly v Sullivan (1876) 1 SCR 3 (SCC) 17. The Royal Proclamation of 1763 has been held to have introduced English law in the province as of 7 October 1763: Cote (n 2) 88. In 1873, the Prince Edward Island Terms of Union made Prince Edward Island the seventh province and, by s 129, continued the laws in force at the time of the union: Prince Edward Island Terms of Union 1873, RSC 1985, App II, No 12 (originally named Order of Her Majesty in Council admitting Prince Edward Island into the Union 1873). 20   Although the oldest accounts of European contact in Newfoundland and Labrador date from a thousand years ago as described in the Viking (Norse) Icelandic Sagas, the French colonisation period lasted until the Treaty of Utrecht in 1713 when France ceded its claims to Newfoundland to the British; cf McNeil, Common Law Aboriginal Title (n 14) 117–18, 268. In the Treaty of Utrecht, France acknowledged British ownership of the island. The courts have held that English law was received as of 31 December 1832, the day before the first legislative assembly met: Yonge v Blaikie (1822) 1 Nfld LR 277 (NfldSC) 283. 21   Cote (n 2) 88; Ziff, ‘Warm Reception in a Cold Climate’ (n 2) 103. 22   See below text to n 602ff. See also K McNeil, ‘Native Rights Case Law’ in Handbook of North American Indians, vol 2, Indians in Contemporary Society edited by GA Bailey (Washington, Smithsonian Institution, 2008) 166, 167; Cote (n 2) 87. 23   10 February 1763. Although present-day Quebec is larger than that part of the province which was within New France, New France extended further west (including what is now Southern Ontario). 24   The Royal Proclamation of 7 October 1763, among other provisions, purported to introduce English law into the North American territories France had ceded to Britain in that year; however, there is some doubt over whether the Proclamation replaced French law with English law in Britain’s new colony of Quebec: Wilcox v Wilcox (1857) 8 LC Rep 34 (QB); Stuart v Bowman (1851) 2 LCR 369 (Quebec SC); authorities cited by Cote (n 2) 88. 25   14 Geo 3 c 83 (Imp), RSC 1985, App II, No 2 (originally named The British North America (Quebec) Act 1774).



The Reception of Law in Canada 363

erty.26 While the Quebec Act included much of what is present-day Ontario, the Constitutional Act of 179127 separated present-day Ontario and Quebec into Upper and Lower Canada respectively. The first legislation passed by the new Assembly of Upper Canada adopted English law (except bankruptcy and poor laws) for all matters of ‘property and civil rights’ as of 1792.28 Nevertheless, it is generally assumed that Ontario received English law for all purposes.29 Thus, the application of English property law in Ontario traces back to this reception statute. When the Act of Union rejoined Upper and Lower Canada in 1840, the separate French and English property law regimes were nevertheless retained. The laws existing in Ontario and Quebec in 1867 were affirmed by the British North America Act 1867,30 an Imperial statute which was renamed the Constitution Act 1867 in 1982.31 The provision of the Quebec Act which provided that all disputes relating to ‘Property and Civil Rights’ were to be decided by the former law of Quebec,32 continued as section 92(13) of the Constitution Act 1867.33 Indeed, this section granted all the provinces, including Quebec, the exclusive power to legislate with respect to private civil law matters. Nevertheless, only Quebec applies the civil law for private law matters. All the other provinces and territories of Canada operate under common law. Quebec is, however, subject to the common law with respect to matters under federal jurisdiction. Like South Africa, therefore, Quebec has a bijuridical legal system.34 As with the position in Ontario, a date for the reception of English law is also fixed by statute in other Canadian jurisdictions. Indeed, it will be seen that the date on which Rupert’s Land became part of Canada (15 July 1870) has been adopted as the reception date for the remaining Canadian provinces and territories. On 2 May 1670, Charles II granted all the territory draining into Hudson Bay, known as Rupert’s Land,35 to the Hudson’s Bay Company and the charter granting the land provided that the law of 26  The Quebec Act expressly preserved English criminal and testamentary laws. Quebec’s law became entirely statute based with the passage of the 1866 Civil Code of Lower Canada, which applied from 1 July 1867 to 31 December 1993. Quebec’s current civil code, the Civil Code of Quebec, came into force in 1994. This Code repealed both the Civil Code of Lower Canada and the Civil Code of Quebec of 1980 which dealt only with family law and was enacted as an intermediary stage in the development of the new Civil Code for Quebec. 27   31 Geo 3 c 31 (Imp), RSC 1985, App II, No 3 (originally named The Clergy Endowments (Canada) Act 1791). 28   32 Geo 3 c 1 (Imp). As Cote points out, the phrase ‘property and civil rights’ was undoubtedly chosen because it was used in the Quebec Act: Cote (n 2) 88. 29   ibid 89, 30   30 & 31 Vic c 3, s 129 (Imp), RSC 1985, App II, No 5. 31   See the Constitution Act 1982, RSC 1985, App II, No 44, s 53(2). 32   ‘Matters of Controversy, relative to Property and Civil Rights, Resort shall be had to the Laws of Canada, as the Rule for the Decision of the same; and all Causes that shall hereafter be instituted in any of the Courts of Justice, to be appointed within and for the said Province by his Majesty, his Heirs and Successors. shall, with respect to such Property and Rights, be determined agreeably to the said Laws and Customs of Canada, until they shall be varied or altered by any Ordinances that shall, from Time to Time, be passed in the said Province by the Governor, Lieutenant Governor, or Commander in Chief, for the Time being, by and with the Advice and Consent of the Legislative Council of the same, to be appointed in Manner herein-after mentioned’: s VIII. 33   ‘In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, – . . . Property and Civil Rights in the Province’. 34   See ch 7 text to n 359. 35   The grant purportedly comprised the entire Hudson drainage system, which includes present-day northern Quebec and Ontario north of the Laurentian watershed, all of Manitoba, most of Saskatchewan, southern Alberta and a portion of the Northwest Territories and Nunavut. This large portion of North America was named Rupert’s Land in honour of Prince Rupert, Charles II’s cousin and the company’s first governor.

364  Canada England applied in this territory.36 Even if this charter did not have legislative effect, it has been regarded as the settlement of a colony as of 2 May 1670 as the Hudson’s Bay Company established trading posts thereafter.37 In 1862, the legislative council of Assiniboia (a small portion of Rupert’s Land) introduced the law of England as of 20 June 1837 and on 7 January 1864 introduced later English law.38 Not surprisingly, the courts found the law of the area uncertain.39 Rupert’s Land was surrendered to the Crown by the Hudson’s Bay Company on 22 June 1870 and was admitted, along with the old North-Western Territory,40 into the Dominion of Canada on 15 July 1870.41 Canada merged the two territories and renamed them North-West Territories. They were joined to Canada under authority of Rupert’s Land Act 186842 which implemented section 146 of the British North America Act 1867. Although acceptance of the surrender of Rupert’s Land ended the authority of Hudson’s Bay Company over Rupert’s Land and the North-Western Territory, as noted above, there was uncertainty as to the date of reception of English law. To resolve this uncertainty, various statutes (discussed below) were passed which set the date of reception as the date of the transfer of these two territories to Canada: 15 July 1870.43 While the south-eastern part of Rupert’s Land became the province of Manitoba by an Act of Parliament on 15 July 1870,44 the remaining new territory (now known as the North-west Territories)45 was governed directly by the Dominion government. In 1874, the Manitoba legislature passed The Court of Queen’s Bench Act46 introducing English law relating to ‘property and civil rights’ into Manitoba as of 15 July 1870.47 Use of the phrase ‘property and civil rights’ was clearly copied from the Ontario legislation on the subject,48 however, unlike the position in Ontario where it was assumed that English law was received for all purposes,49 in Manitoba the legislation was regarded as only covering matters coming within provincial jurisdiction. Accordingly, in 1888, the   Cote (n 2) 89.   ibid. Note that despite the French establishing fur trading posts in the area, the possibility that any of this territory was conquered rather than settled has been largely ignored: see the authorities cited in JE Cote, ‘The Introduction of English Law into Alberta’ (1964) 3 Alberta Law Review 262, 263 fn 8. cf Re Provincial Fisheries (n 18) 530. 38   Cote (n 2) 89–90. 39   ibid 90. 40   Despite the royal charter assigning only Ruperts’s Land to Hudson’s Bay Company, the company had long used the region as part of its trading area before the governance of the North-Western Territory was expressly assigned to the company in 1859. 41   Hudson’s Bay Company signed and sealed the deed of transfer surrendering its chartered territory to the Crown on 19 November 1869 and the Governments of Great Britain and Canada set the date of transfer for 1 December 1869. The date of transfer did not, however, become effective until 15 July 1870 owing to the Red River Rebellion: a movement of national self-determination by the Métis of the Red River Colony in what is now Manitoba, 1869–70. 42   31 & 32 Vic c 105 (Imp), RSC 1985, App II, No 6. 43   See Order of Her Majesty in Council admitting Rupert’s Land and the North-Western Territory into the Union, 23 June 1870. 44   The Manitoba Act 1870 (33 Vic c 3) (Can), RSC 1985, App II, No 8. Manitoba was originally much smaller than the current province: see below text to n 51. 45   The Northwest Territories Act passed in 1906 removed the hyphen from the name of the territory. 46   38 Vic c 12, s 1 (Can), CCSM c C280, s 33(1). 47   The statute restricted the laws introduced to ‘such as were, existed, and stood on the fifteenth day of July one thousand eight hundred and seventy, so far as the same can be made applicable to matters relating to property and civil rights in this Province’. 48   Which in turn was copied from the Quebec Act: see above text to nn 26, 28. 49   See above text to n 29. 36 37



The Reception of Law in Canada 365

Dominion Parliament passed legislation to like effect.50 When the borders of Manitoba were expanded in 1881 and again in 1912, reception of English laws was similarly extended.51 In 1886, the Dominion Parliament passed the North-west Territories Act Amendment Act52 extending English law as of 15 July 1870 to the remainder of the North-west Territories.53 This provision was carried forward in Yukon’s founding Act54 when it was carved from the North-west Territories55 in 1898 as well as in the Acts founding Saskatchewan56 and Alberta57 when they were separated from the rest of North-west Territories and constituted as new provinces in 1905.58 The same provision is also the basis for the reception of English law in the territory of Nunavut when it was carved from the Northwest Territories in 1999.59 B Summary Notwithstanding the different dates each of the Canadian provinces and territories joined Canada, English law, including property law, was received in all the provinces and territories of Canada apart from Quebec.60 Indeed, the English feudal doctrine of tenure was ostensibly the basis of land law in the common law jurisdictions of Canada. Crucially, however, it has been seen that a number of inhabited Canadian provinces were classified as conventional settled colonies (and thus legally uninhabited) for reception purposes at common law. While this classification was also applied to Australia pre-Mabo, it has been seen that the Mabo High Court re-classified Australia as an inhabited settled colony and, as a result, modified the doctrine of reception in its application to land law. Consequently, the feudal doctrine of tenure was not received in the inhabited settled colony of Australia. Instead, a modified doctrine of reception applied pursuant to which settlement conferred a radical title on the Crown and the interrelated doctrines of tenure ad veritatem (with radical title as its postulate) and continuity protempore (which presumed that pre-existing property rights continued post-sovereignty 50   An Act respecting the Application of certain Laws therein mentioned to the Province of Manitoba 1888 (51 Vic c 33, s 1) (Can) subsequently consolidated as The Manitoba Supplementary Provisions Act RSC 1927, c 124. 51   See The Manitoba Boundaries Extension Act 1881 (44 Vic c 14) s 3 (Can); The Manitoba Boundaries Extension Act 1912 (2 Geo 5 c 32) (Can); The Manitoba Boundaries Extension Act 1930 (20 & 21 Geo 5 c 28) (Can). 52   49 Vic c 25, s 3 (Can), SC 1886, c 25, s 3 (originally named an Act further to amend the law respecting the North-West Territories, 1886). 53   This federal legislation supplemented the Ordinance passed by the legislature of the Northwest Territories adopting 15 July 1870 as the reception date for matters coming within territorial jurisdiction. 54   Yukon Territory Act 1898 (61 Vic c 6) (Can), RSC 1985, App II, No 19. 55   The Northwest Territories was divided into Yukon and Assinibboia to the South and the Northwest Territories to the north of the sixtieth parallel. 56   Saskatchewan Act 1905 (4 & 5 Ed 7 c 42) s 16 (Can), RSC 1985, App II, No 21. 57   Alberta Act 1905 (4 & 5 Ed 7 c 3) s 16 (Can), RSC 1985, App II, No 20. In Toll v CPR (1908) 8 WLR 795 (CA) 798–99, the Alberta Court en banc held that this was the reception of another law, that of the Northwest Territories, and strictly speaking the old law could not be regarded as continuing in force of its own accord. cf Magrum v McDougall [1944] 3 WWR 486 (Alb SC AD). The reception of English law in Alberta is discussed in detail by Cote, ‘The Introduction of English Law into Alberta’ (n 37). 58   The founding Acts continued the pre-existing property regime including (in addition to the reception of English law as of 15 July 1870) the Territories Real Property Act 1886 (49 Vic c 26) (Can); the Dominion Lands Act 1872 (35 Vic c 23) (Can) and the Indian Act 1876, SC 1876, c 18. 59   Nunavut Act SC 1993, c 28, s 29 and the Nunavut Land Claims Agreement 1993. 60   See above n 1.

366  Canada until validly extinguished) allowed pre-existing property rights not derived from Crown grant to be accommodated within Australian land law.61 While the Australian High Court limited its recognition of such pre-existing rights to native title, it has been seen that the new system of land tenure in Australia can accommodate the doctrine of Aboriginal customary title. Aboriginal title has been recognised in Canada since 1888 but it was only following the 1973 decision in Calder v Attorney-General of British Columbia62 – which affirmed the existence of Aboriginal title at common law – that Canadian courts commenced the process of addressing the implications of recognising a title pre-dating Crown sovereignty. This necessarily involved (re)examining the nature of the Crown’s title to land upon acquisition of sovereignty: the legal basis for both the doctrine of tenure (whether feudal or ad veritatem) and any discussion of Aboriginal title. It will be seen that while the Canadian courts reached the same conclusion regarding the legal nature of the Crown’s radical title as the Australian High Court did in Mabo, the Canadian courts did so first. Furthermore, although the conventional view is that pre-Delgamuukw Canadian cases regarding Aboriginal title are authority for the proposition that Aboriginal title is based simply on occupation of land at the date the Crown asserted sovereignty, it will be seen that the cases are open to an alternative interpretation. Namely, that establishing Aboriginal title required proof of pre-sovereignty occupation of land pursuant to a system of Aboriginal laws/customs by which land was used in a meaningful way from the Aboriginal perspective: referred to as ‘purposive occupation’ in the context of Aboriginal customary title.63 It was in Delgamuukw that the Supreme Court declared it was now clear that ‘the source of aboriginal title in Canada . . . arises from the prior occupation of Canada by aboriginal peoples’,64 and that ‘in order to establish a claim to aboriginal title’ the lands must have been occupied ‘at the time at which the Crown asserted sovereignty’.65 It will be seen that this approach to proof of Aboriginal title – occupation of land at the date the Crown asserted sovereignty – reveals a fundamental and logical inconsistency with the fact that the title pre-dates Crown sovereignty.66 Indeed, apparently realising the inherent contradiction in its own approach to proof of Aboriginal title, the majority of the Supreme Court expressly suggested an alternative source for Aboriginal title – which it will be seen is the source of Aboriginal customary title. The implications of the Canadian jurisprudence for the doctrine of tenure, the Crown’s title to land and Aboriginal title in Canada are considered in the next section. In addition to the inhabited Canadian provinces which were classified as conventional settled colonies (and thus legally uninhabited) for reception purposes, it has been seen that many Canadian provinces and territories which received English law were conquered/ceded colonies with bipartite histories.67 Quebec is, however, the only conquered/   See generally ch 3.   Calder v Attorney-General of British Columbia [1973] SCR 313 (SCC). 63   See ch 7 text to n 130. 64   Delgamuukw (n 2) [114] (Lamer CJ for the majority of the Court). 65   ibid [144]. 66   See below text to n 292. See also K McNeil, ‘The Meaning of Aboriginal Title’ in M Asch (ed), Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference (Vancouver, UBC Press, 1997) 135, 137. 67   It has been seen that where English land law was introduced in toto in a conquered/ceded colony, the conquered/ceded people acquired a common law title to their land and concomitant protection from the Crown’s prerogative: ch 3 text to nn 228, 258ff, text in para preceding n 334; ch 7 text to n 358. 61 62



Tenure, Radical Title and Aboriginal Land Rights 367

ceded colony in Canada with a bipartite history which has a legal regime based on civil law rather than the common law.68 Although it will be seen that the nature and content of Aboriginal rights in Canada does not depend on whether land was first colonised by Britain or France, pursuant to the doctrine of Aboriginal customary title the bipartite history of a conquered/ceded colony is important where the legal regime applying postBritish colonisation is based upon the civil law: the external, generic, dimension of the title being allodial and thus consistent with civil law.69 The implications of addressing the reality of the consequences of conquest/cession in a bipartite colonial context for Aboriginal property rights in Quebec will be examined in section III.

II  THE DOCTRINE OF TENURE, RADICAL TITLE AND ABORIGINAL LAND RIGHTS IN CANADA

While English land law, including the doctrine of tenure, was received as the basis of land law in all Canadian provinces and territories apart from Quebec,70 the Royal Proclamation of 176371 affirmed Aboriginal allodial ownership of all unpurchased lands under English protection in North America.72 The Proclamation also ordered protection of all land under Aboriginal tenure from interference by Europeans,73 directed settlers already in possession of such lands to vacate them,74 prohibited subjects and governors from directly purchasing Aboriginal land,75 and required that Aboriginal land could only be brought within the English tenure system by sales to the Crown.76 Since the Royal Proclamation recognised Aboriginal tenure, how was this non-Crown derived tenure reconciled with the received English doctrine of tenure and its two-fold fiction of original Crown ownership of all land and original Crown grant? The first important   See above text to n 23.   See ch 7 text to n 459, see also text to 232–39. 70   Although, as noted above (text to nn 24–26), English property law was apparently introduced into Quebec by the Royal Proclamation in 1763 until the Quebec Act restored French civil law in 1774. 71   Relevant provisions of the Royal Proclamation referred to in the notes below are reproduced in app B of H Foster, H Raven and J Webber, Let Right be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver, UBC Press, 2007) 242–43. 72   The Royal Proclamation relevantly provided: ‘[N]o Governor . . . do presume . . . to grant Warrants of Survey, or pass any Patent for Lands beyond the Bounds of their respective Governments, as described in their Commissions; . . . or upon any Lands whatever, which, not having been ceded to, or purchased by Us as aforesaid, are reserved to the said Indians, or any of them. . . . and We do hereby strictly forbid, on Pain of Our Displeasure, all Our loving Subjects from making any Purchases or Settlements whatsoever, or taking Possession of any of the Lands above reserved’. 73   The Royal Proclamation relevantly provided: ‘And whereas it is just and reasonable, and essential to Our Interest, and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any part of them, as their Hunting Grounds’. 74   The Royal Proclamation relevantly provided: ‘And We do further strictly enjoin and require all Persons whatsoever, who have either willfully or inadvertently seated themselves upon any Lands . . . which, not having been ceded to, or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements’. 75   The Royal Proclamation relevantly provided: ‘[I]f, at any Time any of the said Indians should be inclined to dispose of the said Lands, the same shall be purchased only for Us, in Our Name at some Public Meeting or Assembly of the said Indians to be held for that Purpose by the Governor or Commander in chief of Our Colony respectively, within which they shall lie’. 76   See above n 72. 68 69

368  Canada case to consider Aboriginal title in Canada was St Catherine’s Milling and Lumber Co v R77 in 1888. A Pre-Calder Aboriginal Title Jurisprudence It was seen in chapter two that the question in St Catherine’s was whether the Crown in right of the province of Ontario or the Crown in right of Canada had title to former Indian lands in northwestern Ontario. The land had been in Indian occupation under the Royal Proclamation until the Indians surrendered their rights to the Government of Canada pursuant to a formal treaty in 1873.78 Although the Indians were not a party to the dispute, the Judicial Committee of the Privy Council accepted that they had Aboriginal title to the rele­ vant lands before surrendering them to the Crown.79 Crucially, however, the Privy Council considered the Royal Proclamation to be the source of their Aboriginal title; their title was not sourced in, or recognised by, the common law. In so finding, the Privy Council avoided addressing the inherent inconsistency between Aboriginal tenure and the feudal doctrine of tenure. Indeed, apart from interpreting the terms of the Royal Proclamation as showing that the Aboriginal tenure was ‘a personal and usufructuary right’,80 the Privy Council expressly refrained from expressing any opinion upon the precise quality of the Aboriginal right.81 It was sufficient for the purposes of the case to hold: [T]hat there ha[d] been all along vested in the Crown a substantial and paramount estate, underlying the Indian title [arising by force of the Proclamation], which became a plenum dominium whenever that title was surrendered or otherwise extinguished.82

St Catherine’s is, therefore, authority for the proposition that, on its facts, the Crown’s title to the disputed land amounted to a present proprietary estate underlying the Aboriginal title as defined by the Royal Proclamation. Crucially, however, it was seen in chapter two that St Catherine’s is open to an interpretation which, contrary to the conventional view, does not support the proposition that the nature of the Crown’s title to any land which is subject to pre-existing Aboriginal title is prima facie equivalent to absolute ownership. Because the plenary title of the Crown had been acquired by conquest and cession under the Treaty of Paris, full title had not vested by operation of the law on the basis of the doctrine of tenure.83 The Crown’s title amounted to a plenum dominium because the Indians had no rights under the French law (apart from statute) in respect of the disputed land84 with the result that the French King had the entire bene­ ficial estate and the Crown acquired that estate derivatively by conquest and cession. 77   St Catherine’s Milling and Lumber Co v R (1888) 14 App Cas 46 (PC). This case was cited with approval by the Privy Council in Attorney-General for Quebec v Attorney-General for Canada [1921] 1 AC 401 (PC) (Star Chrome case). 78   See discussion in ch 2 text to nn 27–51. 79   The Saulteaux Nation in the Lake of the Woods region of northwestern Ontario surrendered their lands by Treaty 3 of 1873. 80   St Catherine’s (n 77) 54. 81   ibid. Notwithstanding that ‘there was a great deal of learned discussion at the Bar [regarding this issue]’: ibid 55. 82   ibid 55. 83   See ch 2 text to nn 47–51. 84   St Catherine’s (n 77) 54–55. See also GS Lester, The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument (DJuris thesis, York University, 1981) 983, 987; E Blake, The Ontario Lands Case: Argument of Mr Blake, QC, Before the Privy Council (Toronto, Press of the Budget, 1888) 47–48.



Tenure, Radical Title and Aboriginal Land Rights 369

Although the phrase ‘radical title’ first appears in Attorney-General for Quebec v Attorney-General for Canada85 when used by the Privy Council to describe the Crown’s interest in land which is subject to Aboriginal title, the Privy Council clearly attributed its origins to St Catherine’s: The claim of Quebec is based upon the contention that at the date of Confederation the radical title in these lands was vested in the Crown, subject to an interest held in trust for the benefit of the Indians, which, in the words used by Lord Watson, in delivering judgment in St. Catherine’s Milling and Lumber Co. v. The Queen, was only ‘a personal and usufructuary right dependent upon the goodwill of the Sovereign.’86

The Privy Council in the Star Chrome case also clarified that the Aboriginal right recognised by the Royal Proclamation was a ‘personal right in the sense that it is in its nature inalienable except by surrender to the Crown’.87 However, since the Privy Council followed and applied St Catherine’s, the decision in the Star Chrome case did not provide further elucidation of the legal nature of the Crown’s title to land subject to Aboriginal title. The Crown’s title to the disputed land in both of these cases had been acquired by conquest and cession under the Treaty of Paris. Furthermore, since the question of Aboriginal title was only raised because governmental and private interests depended upon its resolution, Aboriginal nations were not a party in either case. Indeed, this was true for the majority of early Canadian Aboriginal rights jurisprudence.88 It was not until 1973 that the first case to directly consider Aboriginal title reached the Supreme Court of Canada.89 The case was Calder.90 B  Calder and pre-Delgamuukw Aboriginal Title Jurisprudence In Calder,91 members of the Nisga’a92 Indian nation brought a representative action against the Attorney-General of British Columbia for a declaration that their Aboriginal title, otherwise known as Indian title, to certain lands in British Columbia had never been lawfully extinguished.93 The Nisga’a had been unsuccessful in the lower courts.94   Above n 77.   Star Chrome case (n 77) 406 87   ibid 408. The Supreme Court of Canada subsequently ruled that Aboriginal title is proprietary in nature and can, therefore, ‘compete on an equal footing with other proprietary interests’: Canadian Pacific Ltd v Paul [1988] 2 SCR 654 (SCC) 677. 88   See, eg, Dominion of Canada v Province of Ontario [1910] AC 637 (PC); Ontario Mining Co Ltd v Seybold [1903] AC 73 (PC). 89   In the 1960s, a few cases decided by lower Canadian courts had suggested that there was a distinctive set of Aboriginal rights: see, eg, R v Sikyea (1964) 43 DLR (2d) 150 (NWTCA), affd Sikyea v R [1964] SCR 642 (SCC); R v White and Bob (1965) 50 DLR (2d) 613 (BCCA), affd (1966) 52 DLR (2d) 481 (SCC). 90   For the historical background to this case see H Foster, ‘We Are Not O’Meara’s Children: Law, Lawyers, and the First Campaign for Aboriginal Title in British Columbia, 1908–28’ in Foster, Raven and Webber, Let Right be Done (n 71) 61. 91   For comment see generally Foster, Raven and Webber (n 71); WH McConnell, ‘The Calder Case in Historical Perspective’ (1974) 38 Saskatchewan Law Review 88; J Gagne, ‘The Content of Aboriginal Title at Common Law: A Look at the Nisgha Claim’ (1983) 47 Saskatchewan Law Review 309; McNeil (n 14) 276–79. 92   Formerly known as Nishga and referred to as such in Calder. 93   It was agreed that this territory consisted of 1000 square miles in north-western British Columbia in and around the Nass River Valley, Observatory Inlet, Portland Inlet and the Portland Canal. 94   Calder v Attorney-General of British Columbia (1969) 8 DLR (3d) 59 (BCSC); (1971) 13 DLR (3d) 64 (BCCA). 85 86

370  Canada The Supreme Court of Canada held four to three that the appeal should be dismissed: Pigeon, Judson, Martland and Ritchie JJ comprised the majority; Hall, Spence and Laskin JJ comprised the minority. However, Pigeon J decided against the Nisga’a on purely procedural grounds: the absence of a fiat from the Lieutenant-Governor of British Columbia.95 Since Pigeon J did not address the merits of the case, the Supreme Court was split 3:3 on the substantive issue.96 This division of opinion was led by Judson J (Martland and Ritchie JJ concurring) and Hall J (Laskin and Spence JJ concurring). Although all six judges held that the Nisga’a had Aboriginal title when Britain acquired sovereignty over the territory, the three judges led by Judson J held that the Nisga’a title had been extinguished whereas the three judges led by Hall J held that the title still existed. Crucially, the judgments of both Judson J and Hall J held that the Royal Proclamation was not the source of Aboriginal title. The two judgments did, however, diverge on the reasons for this conclusion. Judson J held that the Royal Proclamation did not apply to British Columbia97 and explained the source of Aboriginal title in the following frequently quoted passage: it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. . . . What they are asserting in this action is that they had a right to continue to live on their lands as their forefathers had lived and that this right has never been lawfully extinguished. There can be no question that this right was ‘dependent on the goodwill of the Sovereign’.98

Hall J, on the other hand, held that the Royal Proclamation did apply to British Columbia and explained that the guarantee of Indian rights contained in the Proclamation supported the Nisga’a claim at common law that they had Aboriginal title to the land in question.99 The source of the title was, however, not the Proclamation; it was a title presumed from possession from time immemorial: The issue here is whether any right or title the Indians possess as occupants of the land from time immemorial has been extinguished. . . . This is not a claim to title in fee but is in the nature of an equitable title or interest . . . a usufructuary right and a right to occupy the lands and to enjoy the fruits of the soil, the forest and of the rivers and streams which does not in any way deny the Crown’s paramount title as it is recognized by the law of nations. . . . Possession is of itself at common law proof of ownership . . . Unchallenged possession is admitted here.100

Thus, contrary to the decision in St Catherine’s, and despite the different approaches vis-a-vis the Royal Proclamation, Calder affirmed that Aboriginal title is not dependent on any enactment for its existence. Rather, it is a title pre-dating British colonisation.101 It has been seen that the territory in dispute in Calder was located in British Columbia, a 95   The requirement, which was still in effect in British Columbia at the time, to obtain the consent of the Crown to permit an action against the Crown. 96   Since Judson J agreed with Pigeon J that the claim failed because the Nisga’a had not obtained a fiat permitting them to sue the Crown, Pigeon J’s judgment represents the ratio of the case. 97   Calder (n 62) 323. 98   ibid 328. 99   ibid 394–95. 100   ibid 352, 368. 101   It will be seen that Hall J was of the view that such occupation was itself pursuant to Aboriginal customary law.



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colony classified as settled for reception purposes. Consequently, the English doctrine of tenure was part of the received law of the colony. How did the Court, therefore, reconcile the basic tenets of the English doctrine of tenure102 with this pre-existing non-Crown derived title? What did it mean for the legal nature of the Crown’s title? Unfortunately, the Court did not expressly clarify the matter. Neither Judson J nor Hall J referred to the doctrine of tenure and only Hall J referred to the Crown’s ‘radical title’ and then only when quoting earlier case law. However, it is clear that counsel for the Nisga’a did not question the Crown’s title to the disputed land: they claimed only a usufructuary interest, not the fee.103 Although Judson J expressly distinguished St Catherine’s to deny application of the Royal Proclamation in British Columbia,104 he relied on St Catherine’s to describe the nature of the Crown’s title to land in British Columbia (the fee)105 as well as the nature of the Indian interest (‘dependent on the goodwill of the Sovereign’).106 It has been seen, however, that not only was the Privy Council’s description of the Indian interest in St Catherine’s based on the words of the Royal Proclamation,107 but the plenary title of the Crown in St Catherine’s had also been acquired by conquest and cession under the Treaty of Paris. Thus, Judson J did not address the implications of the settled yet inhabited status of British Columbia for either the Crown’s title or the Indian interest but merely assumed that along with sovereignty the Crown acquired title in fee simple to lands occupied by Indian nations. It is, nevertheless, clear that Judson J regarded the Crown’s title as different from the Crown’s title under the feudal doctrine of tenure: not only was Aboriginal title not dependent on a grant from the Crown, it also pre-dated the Crown’s title. Furthermore, despite referring to two judgments delivered by Marshall CJ of the United States Supreme Court – Johnson v M’Intosh108 and Worcester v Georgia109 – Judson J relied upon passages from Johnson as providing a ‘summary of the views of the Chief Justice’:110 namely, that discovery of new territory gave absolute title to the land to the discovering sovereign subject only to the right of occupancy by the Indians, which the discovering sovereign could unilaterally extinguish.111 It is, however, clear from chapter two that there are two fundamental problems with Judson J’s approach. First, in Johnson, Marshall CJ confused sovereignty and property: regarding the Crown’s title to land as dependent entirely upon the law of nations, not upon municipal law. Secondly, and more importantly, Marshall CJ changed his views in Worcester – he explained that the principle of discovery 102   Original Crown ownership of all land and all land originally granted by the Crown: 2 Bl Comm 51, 53. Pre-Mabo, the landmark Australian case in this context was Attorney-General (NSW) v Brown (1847) 1 Legge 312 (NSWSC). This decision is discussed in AR Buck, ‘Attorney-General v Brown and the Development of Property Law in Australia’ (1994) 2 Australian Property Law Journal 128 and is re-examined in light of the Mabo decision in ch 4. 103   Calder (n 62) 352–53, 410 (Hall J). 104   ibid 322–25 (Judson J). 105   ibid 320 (referring to St Catherine’s identification of the Crown’s ‘present proprietary estate’), 322, 327, 328. 106   320 (referring to St Catherine’s identification of the Indian title as a ‘mere burden upon [the Crown’s present proprietary estate]’), 322, 328. 107   See above n 80 and text. 108   Johnson v M’Intosh 21 US 543 (1823) (USSC). 109   Worcester v Georgia 31 US 515 (1832) (USSC). 110   Calder (n 62) 321. 111  ibid.

372  Canada was an exclusive principle which shut out the right of competition among those who had agreed to it [namely, the European sovereigns]; not one which could annul the previous rights of those who had not agreed to it [including the Indians]. It regulated the right given by discovery among the European discoverers; but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man.112

Accordingly, discovery merely regulated the acquisition of sovereignty (jurisdiction) over a territory; it delivered a right to acquire title, but not title itself. In the context of Aboriginal rights, this was a preferential or pre-emptive right to acquire title. The Crown’s sovereign rights could only mature into full rights of property when actual possession had been taken and the ‘Indian nations possessed a full right to the lands they occupied, until that right should be extinguished by the United States, with their consent’ (emphasis added).113 Ignoring Marshall CJ’s revised position on the consequences of discovery for both the Crown’s title to land and the nature of pre-existing Aboriginal title,114 Judson J held that the Nisga’a title had been extinguished, including because ‘[t]he Government of the original Crown Colony and, since 1871, the Government of British Columbia [had] made alienations in the Nass Valley that [were] inconsistent with the existence of an aboriginal title’.115 This included alienations in fee-simple, petroleum and natural gas leases, mineral claims and tree farm licences. Judson J also accepted the trial judge’s conclusion that a series of proclamations between 1858 and 1863 and four ordinances enacted between 1865 and 1870 revealed ‘a unity of intention to exercise, and the legislative exercising, of absolute sovereignty over all the lands of British Columbia, a sovereignty inconsistent with any conflicting interest, including one as to “aboriginal title, otherwise known as the Indian title”’.116 Accordingly, Judson J concluded that the sovereign had exercised complete dominion over the lands in question which was adverse to any right of occupancy which the Nisga’a tribe might have had117 when, by legislation, it opened up the lands for settlement.118 This to be contrasted with Hall J’s judgment which concluded that colonial enactments declaring that all lands in British Columbia ‘belong to the Crown in fee’ had not extinguished the Nisga’a title because these enactments ‘merely state[d] what was the actual situation under the common law and add[ed] nothing new or additional to the Crown’s paramount title’.119 This raised the question: what title did the Crown have that   Worcester (n 109) 544.   ibid 560. 114   17 years after the decision in Calder, and also in the context of British Columbia, the Supreme Court of Canada in R v Sparrow [1990] 1 SCR 1075 (SCC) 1103 also ignored Marshall CJ’s changed view in Worcester and cited Marshall CJ’s judgment in Johnson as authority for their conclusion that ‘there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to [Aboriginal] lands vested in the Crown’. 115   Calder (n 62) 337. 116   ibid 333. 117   Note that Judson J intimated that the characterisation of Aboriginal title as a ‘personal or usufructuary right’ was not helpful in determining the nature of Aboriginal title: ibid 328. 118   ibid 344. 119   ibid 410–11. Hall J also concluded that it was ‘beyond question that the onus of proving that the Sovereign intended to extinguish the Indian title lies on the [Sovereign] and that intention must be “clear and plain”. There is no such proof in the case at bar; no legislation to that effect’: ibid 404. He further observed that ‘The appellants do challenge the authority of British Columbia to make grants in derogation of their rights, but because the grants made so far in respect of Nishga lands are so relatively insignificant the appellants have elected to ignore them while maintaining that they were ultra vires’: ibid 354. 112 113



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the enactments were recognising? What title did the Crown have at common law? Hall J used three expressions in connection with the Crown’s title: ‘in fee’,120 ‘paramount title’121 and ‘radical title’.122 A distinction must, however, be drawn between the Crown’s title at common law and under international law. Since Hall J acknowledged that the Nisga’a claim to title did ‘not in any way deny the Crown’s paramount title as it is recognized by the law of nations’ (emphasis added),123 reference to the Crown’s ‘paramount title’ is to the sovereign’s title as against other European sovereigns under international law.124 This leaves the expressions ‘in fee’ and ‘radical title’ as relating to the Crown’s title at common law. Indeed, Aboriginal title was seen as a ‘burden’ on both the Crown’s title in fee125 and the Crown’s radical title.126 While it is clear that the Crown’s title to land upon acquisition of sovereignty has been described as a radical title since 1921,127 the only references to the Crown’s radical title in Hall J’s judgment are in quotes from Amodu Tijani v Secretary, Southern Nigeria.128 As seen in chapter two, Amodu is authority for the proposition that there is no necessary equivalence between the Crown’s radical title and a full proprietary estate. It is significant to recall that Amodu concerned a cession of land to the British Crown by the African sovereign. The Privy Council distinguished between the African sovereign’s radical title and proprietary rights and held that the Crown acquired only those rights which the ceding sovereign could pass.129 These were rights of sovereignty – the radical title – and any beneficial rights held by the ceding sovereign to its demesne lands. The Crown did not, however, acquire a beneficial estate to the whole of the ceded territory:130 ‘the ownership rights of private landowners . . . were left entirely unimpaired, and as freely exercisable after the Cession as before’.131 The Privy Council concluded that ‘[a] mere change in sovereignty is not to be presumed as meant to disturb rights of private owners; and the general terms of a cession are prima facie to be construed accordingly’.132 Although Hall J regarded the territory in dispute in Calder as acquired by the Crown by discovery under international law133 and thus a settled colony at common law,134 he acknowledged that the Nisga’a were sovereign and independent before Britain’s acquisition of sovereignty:   Calder (n 62) 410, 413.   ibid 352, 410. 122   ibid 354, 401. 123   ibid 352. 124   Nevertheless, Hall J did apparently acknowledge that the Nisga’a were sovereign and independent before Britain’s acquisition of sovereignty: see below text to n 135. 125   Calder (n 62) 462. 126   ibid 354. 127   Above text to n 85. 128   Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 (PC): referred to in Calder (n 62) 354, 401. 129   See ch 2 text to n 53ff, esp nn 65–68. This situation must be distinguished from the situation in Mabo where the Crown’s rights were not acquired from a former sovereign. 130   The Judicial Committee concluded that ‘it [was] not admissable to conclude that the Crown is generally speaking entitled to the beneficial ownership of the land as having so passed to the Crown so as to displace any presumptive title of the natives’: Amodu (n 128) 407. See also Lester, The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument (n 84) 1042. 131   Amodu (n 128) 407 quoting with approval Osborne CJ’s conclusions in Oduntan Onisiwo v AttorneyGeneral of Southern Nigeria (1912) 2 Nig LR 77 (Nig SC). 132   Amodu (n 128) 407. 133   Calder (n 62) 389. 134   ibid 406. 120 121

374  Canada The dominant and recurring proposition stated by Chief Justice Marshall in Johnson v. McIntosh is that on discovery or on conquest the aborigines of newly-found lands were conceded to be the rightful occupants of the soil with a legal as well as a just claim to retain possession of it and to use it according to their own discretion, but their rights to complete sovereignty as independent nations were necessarily diminished and their power to dispose of the soil on their own will to whomsoever they pleased was denied by the original fundamental principle that discovery or conquest gave exclusive title to those who made it.135

Apparently appreciating the inherent contradiction in the propositions that the Crown could acquire sovereignty of territory subject to Indian sovereignty by discovery under international law and that inhabited land could be classified as settled at common law, Hall J emphatically stated that the rules relating to the effect of colonisation on preexisting rights in conquered and ceded colonies ‘must apply to lands which become subject to British sovereignty by discovery’.136 In this context, although Hall J referred to the six propositions enunciated by Mansfield CJ in Campbell v Hall,137 he emphasised propositions 5 and 6: ‘that the laws of a conquered country continue in force, until they are altered by the conqueror’ and that ‘the King . . . cannot make any new change contrary to fundamental principles’. Hall J was, therefore, of the view that the preferable rule identified in chapter three should apply: to ensure equal treatment of all pre-existing rights upon colonisation of any inhabited territory irrespective of the territory’s colonial classification, the rule for determining the effect of colonisation on pre-existing rights is the rule which applies in conquered/ceded colonies.138 In Hall J’s judgment we see the embryonic stages of the recognition of a new class of settled colony at common law: a settled yet inhabited colony. We also see recognition of the important implications of this new constitutional status for the property rights of both the Aboriginal inhabitants and the Crown. Due to the admitted facts in Calder, however, it will be seen that Hall J did not have to reconcile the English doctrine of tenure and related key concepts with pre-existing non-Crown derived Aboriginal title in the same way as the Mabo High Court did.139 Hall J did, however, regard the basis of pre-sovereignty Aboriginal occupation of land (sufficient to give rise to a presumptive title) as being a system of Aboriginal customary law. In this context, he referred, inter alia, to Marshall CJ’s consideration of Aboriginal rights in Worcester and specifically emphasised Marshall CJ’s statement that a territory originally occupied by Aboriginal people was ‘inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws’ (emphasis added by Hall J).140 Nevertheless, since English law, including land law, was introduced into British Columbia upon settlement, application of the preferable rule – mandated by Hall J – 135   ibid 383. In Mabo, Brennan J similarly recognised the fact that Aboriginal people had sovereign rights before the Crown acquired sovereignty: see below n 278 and text. In Calder (n 62) 413–14 Hall J referred to the Letter of Instructions of 31 July 1858 from the Colonial Secretary in London which contained the phrase ‘Let me not omit to observe, that it should be an invariable condition, in all bargains or treaties with the Natives for the cession of land possessed by them’ and concluded that it could not be said that the Imperial Government was not at the time recognising that the natives had something to cede. ‘What they had to cede was their aboriginal right and title to possession of the lands, subject to the Crown’s paramount title’: ibid 414. 136   Calder (n 62) 389. 137   Campbell v Hall (1774) Lofft 655, 98 ER 848 (KB). 138   See ch 3 text to n 304ff. 139   cf below text to n 147ff; ch 3 generally. 140   Calder (n 62) 383 quoting Worcester (n 109) 542–43. See also ibid 346, 354.



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should have meant that the Aboriginal inhabitants acquired a common law title to their land without grant or confirmation of the new sovereign and concomitant protection from the Crown’s prerogative.141 Accordingly, the Nisga’a should have acquired a common law title to fee simple estates.142 Although Hall J was of view that the Nisga’a had a common law interest,143 Hall J did not consider it necessary to precisely state the ‘exact nature and extent of the Indian title or right’.144 Nevertheless, he did refer to the fact that the Nisga’a claim was for a usufructuary interest rather than the fee: This is not a claim to title in fee but is in the nature of an equitable title or interest . . . a usufructuary right and a right to occupy the lands and to enjoy the fruits of the soil, the forest and of the rivers and streams . . . a right of occupation against the world except the Crown145

There are two significant aspects of Hall J’s description of Aboriginal title. First, it appears to connote a right of occupation which is exclusive and a usufructuary right (or right to use the land) which is not necessarily exclusive. Secondly, the contemplated occupation and enjoyment of land is not qualified in any way at common law; the only limitation is that it cannot be inconsistent with the Crown’s sovereign title vis-a-vis other sovereigns under international law.146 In the context of the Crown’s common law title, Hall J relied upon the admission made by counsel for the Nisga’a that the Crown had title to the lands ‘in fee’ to conclude that colonial enactments declaring that all lands in British Columbia ‘belong to the Crown in fee’ merely stated the situation under the common law.147 Hall J did not, therefore, determine what the common law position was and, in particular, whether the Crown in fact had title ‘in fee’ and/or what ‘in fee’ meant in this context. It is, however, clear that, like Judson J, Hall J regarded the Crown’s title ‘in fee’ as different from the Crown’s title under feudal theory: the existence of a title pre-dating the Crown’s title and not deriving from Crown grant the very antithesis of the dual fiction of original Crown ownership and original Crown grant. It has been seen that Hall J also referred to the Crown’s title as a ‘radical title’, which does not automatically entitle the Crown to beneficial ownership of land.148   Ch 3 text to nn 228, 258ff.   See ch 3 text to n 228, text in para before n 334 (the continued relevance of McNeil’s original common law Aboriginal title theory). 143   Calder (n 62) 368, 376, 378, 401, 414. 144   ibid 352. 145   ibid 352, 410. 146   See above n 124. 147   Calder (n 62) 410–11. 148   See generally, chs 2, 3, 4, 5 and 6. It will be recalled that in inhabited settled colonies, descriptions of the Crown’s title as seised in fee and radical title are synonymous. It was seen in ch 2 that, in R v Symonds (1847) [1840–1932] NZPCC 387 (NZSC), Chapman J drew a distinction in the context of an inhabited settled colony between the Crown’s ‘actual seisin’ and ‘technical seisin’ (ie, a mere possibility of seisin). Lord Davey in Nireaha Tamaki v Baker [1901] AC 561 (PC) 579 specifically referred to aspects of Chapman J’s judgment in Symonds. It was also seen that this distinction corresponds to the long recognised legal distinction between seisin in deed (which could only be acquired by entering on the land) and seisin in law (which was attributed to those who had an immediate right to enter upon land, but had not exercised it): ch 2 text to nn 222, 278ff esp 282–85. Thus, when Hall J said that colonial enactments declaring all lands in British Columbia ‘belong to the Crown in fee’ added ‘nothing new or additional to the Crown’s paramount title’, it is suggested that what was meant was that unless the Crown had actual seisin (by a valid exercise of sovereign power) the Crown’s technical seisin did not extinguish Aboriginal title which was compatible with the Crown’s title as sovereign under international law. The common law title which the Crown acquired upon acquisition of sovereignty – its radical title to land – was a right to acquire seisin in fee and hold in demesne (a possibility of seisin) and a right to grant title (a right of control): see Symonds 391, 392, 395. Although the Crown had the exclusive right of 141 142

376  Canada Indeed, Hall J’s reference to the Crown’s radical title is consistent with the principal purpose of the relevant colonial enactments: to introduce a statutory scheme regulating the sale of Crown lands within British Columbia.149 It was seen in chapter two that similar enactments in other colonial jurisdictions (pre-Calder) were held merely to regulate the Crown’s power of disposition over all land and were, therefore, consistent with investiture of mere radical title in the Crown, rather than also asserting the Crown’s absolute ownership of the land. For example, the Privy Council’s decision in Nireaha Tamaki v Baker150 denied that the statutory declaration that all unappropriated lands in New Zealand are and remain Crown lands conferred title on the Crown,151 and in Amodu the Privy Council regarded the system of Crown grants introduced post-British sovereignty as having been brought about mainly, if not exclusively, for conveyancing purposes and not with a view to modifying existing substantive rights.152 It was also seen in chapters four and six that the post-Mabo High Court’s treatment of the statutory definition of ‘Crown land’, being land over which the Crown has radical title, supports the common law interpretation of radical title as a bare legal title rather than beneficial ownership.153 And this is consistent with Hall J’s conclusion that colonial enactments declaring all lands in British Columbia ‘belong to the Crown in fee’ merely stated the situation under the common law.154 In contradistinction to Hall J’s direct challenge to the consequences of the acquisition of sovereignty over inhabited territory for the body of law that applied in the territory (that is, advocating the preferable rule), Judson J treated the inhabited territory in dispute as a conventional discovered/settled territory where there was no derivative acquisition of title from a former sovereign. The Privy Council’s decision in Re Southern Rhodesia155 should, therefore, have been particularly relevant as the title of a former sovereign was not in issue in this case.156 It was seen in chapter two that the Privy Council acquiring title to land subject to an Aboriginal entitlement, it did not have a legal right of possession; it was not automatically seised in fee of such lands. 149   Indeed, the first proclamation dated 2 December 1858 was stated to be ‘a proclamation having the force of law to enable the Governor of British Columbia to have Crown lands sold within the said Colony’ (Calder (n 62) 331) and the last ordinance dated 1 June 1870 amended and consolidated the laws affecting Crown lands in British Columbia: ibid 333. See also the interpretation of the same legislation considered in Calder by the British Columbia Court of Appeal in Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 (BCCA) 525–31 (Macfarlane JA) discussed in ch 6 n 235. 150   Above n 148. 151   See ch 2 text to n 269ff. 152   See ch 2 text to n 71. 153   See ch 4 text to nn 136, 140, 149, 202; ch 6 text to n 195ff. See also the conclusion in ch 4 regarding the definition of the terms ‘waste lands of the Crown’ and the ‘waste lands belonging to the Crown’ in the Sale of Waste Lands Act 1842 (Imp) (5 & 6 Vic c 36) in the Australian context: ‘as the principal object of the Act was to ensure that land in the colonies was only alienated by sale, there was no need to attribute to the Crown absolute beneficial ownership of the waste lands of the colony for the purposes of the Act; investiture of a power of alienation, mere radical title, was sufficient’: ch 4 text to n 51. Hall J’s conclusion in Calder (n 62) 413 that any attempt to extinguish Aboriginal title pursuant to the enactments was ultra vires supports the proposition that the Crown’s title is a mere power of alienation which must be exercised validly. 154   Indeed, in the event that the Crown is held to have acquired a beneficial title to unalienated land as a result of the enactment of Crown lands legislation, the argument that radical title is merely a bare legal title rather than a full proprietary right is intact: beneficial title vests in the Crown by force of the statute rather than the common law. 155   Re Southern Rhodesia [1919] AC 211 (PC). 156   As explained in ch 2, although Southern Rhodesia concerned a territory acquired by conquest and not by settlement, the principles on which it is based turn on the distinction between sovereignty and property rights and are, therefore, of universal application.



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concluded that simply because the Crown had acquired sovereignty over Southern Rhodesia the unalienated lands were not necessarily its property; nevertheless, the Crown did have a sovereign power to grant such lands. The crucial point was that, even in the absence of pre-existing Aboriginal title, there was no legal presumption in favour of the Crown’s title. The Crown’s title was a question of fact. In Calder, the Court relied upon admissions regarding the Crown’s title; the Court did not determine whether the Crown had proved its title. Admissions that the Nisga’a were descendants of Indians who had occupied the lands ‘since time immemorial’ and ‘had obtained a living’ from the land157 were also relied upon, as well as an agreed statement of facts regarding the Nisga’a mode of life. The description of the mode of life was amplified in material filed at the hearing, including the following statement referred to by Judson J: It is not correct to say that the Indians did not ‘own’ the land but only roamed over the face of it and ‘used’ it. The patterns of ownership and utilization which they imposed upon the lands and waters were different from those recognized by our system of law, but were nonetheless clearly defined and mutually respected. . . . they [recognized] ownership of plots used for village sites, fishing places, berry and root patches, and similar purposes. . . . they [established] ownership of tracts used for hunting, trapping, and food-gathering. . . . they [owned] peaks and valleys for mountain goat hunting and as sources of raw materials. Except for barren and inaccessible areas which are not utilized even today, every part of the Province was formerly within the owned and recognized territory of one or other of the Indian tribes.158 (emphasis added)

It is clear that the evidence established the land was occupied pursuant to a system of Aboriginal laws/customs by which the land was utilised in a meaningful way from the Aboriginal perspective. This is significant because it places Judson J’s oft-quoted passage159 in context: his reference to ‘occupying the land as their forefathers had done’ meaning occupation of land by virtue of a system pursuant to which land was utilised in a meaningful way determined by a particular Aboriginal group and its ancestors. Subsequent interpretation of Judson J’s passage has, nevertheless, emphasised the requirement for occupation per se as the basis of Aboriginal title.160 Nevertheless, it is clear that the Calder Court unanimously agreed that pre-existing Indian title survived the British Crown’s acquisition of sovereignty and continued until it was extinguished. Thus, while the Court did not expressly redefine the doctrine of tenure which was received as part of the law of the colony, as the Mabo High Court subsequently did in the Australian context, the Court implicitly acknowledged that the doctrine is different from its feudal counterpart in the context of an inhabited settled colony. Indeed, Hall J’s judgment indicates that the received land law can accommodate a common law title which is based on pre-sovereignty Aboriginal occupation of land pursuant to Aboriginal customary law and which is presumed from common law property principles.161 Not only   Calder (n 62) 347 (Hall J).   ibid 318–19 referring to W Duff, The Indian History of British Columbia: The Impact of the White Man (Victoria, Royal British Columbia Museum, 1964) ch 8. 159   See above quote to n 98. 160   Both judicial and academic: see, eg, Delgamuukw (n 2) [189] (Lamer CJ); S Young, The Trouble with Tradition: Native Title and Cultural Change (Sydney, Federation Press, 2008) 131–32. cf McNeil ‘The Meaning of Aboriginal title’ (n 66) 136–37; post-Calder Canadian cases which have invariably referred to the ‘forefather’ element of occupation. 161   See above text to nn 100, 140. 157 158

378  Canada is this consistent with the doctrine of Aboriginal customary title,162 but in light of Hall J’s recognition of the legal implications of classifying an inhabited colony as settled, it is also consistent with the Crown’s radical title and the doctrine of tenure ad veritatem as providing the doctrinal basis for Aboriginal customary title.163 Although Hall J’s judgment represented the minority in Calder, in Re Paulette164 Morrow J (of the Northwest Territories Supreme Court) relied upon Hall J’s statement that ‘[p]ossession is of itself at common law proof of ownership’165 to conclude that the Aboriginal people occupying the land in question from time immemorial and as their forefathers had done were ‘prima facie the owners of the lands’.166 The issue in Re Paulette was whether a caveat claiming an interest by virtue of Aboriginal title to all lands in the Northwest Territories for which a certificate of title in fee simple had not been issued could be filed and registered under the Land Titles Act.167 Morrow J found as fact that: [T]he area embraced by the caveat has been used and occupied by an indigenous people, Athapascan-speaking Indians, from time immemorial, that this land has been occupied by distinct groups of these same Indians, organized in societies and using the land as their forefathers had done for centuries, and that those persons who signed the caveat are chiefs representing the present-day descendants of these distinct Indian groups.168 (emphasis added)

Referring to a number of authorities, including Worcester, Symonds, Southern Rhodesia and Amodu, Morrow J concluded that Aboriginal people who ‘were in occupation of the land prior to colonial entry’ had ‘Indian legal title’ (emphasis added).169 He also observed that the judgments of both Judson J and Hall J in Calder agreed that even without the Royal Proclamation there can be such a legal concept as Aboriginal title in Canadian law.170 He described this legal title as ‘an estate held of the Crown’ with ‘a Crown interest’ underlying it.171 Thus, for Morrow J, Aboriginal title appears to be accommodated within the feudal doctrine of tenure. Moreover, since he applied Hall J’s statement in Calder that possession is proof of ownership to conclude that Aboriginal people were ‘prima facie the owners of the lands’,172 Morrow J’s judgment indicates that Aboriginal ownership should be a fee simple estate held of the Crown. This conclusion is, however, denied by Morrow J’s characterisation of Aboriginal title: it is a communal possessory right to use and exploit the land173 which is ‘inalienable’ and thus ‘cannot be transferred but can only be terminated by reversion to the Crown’.174 Nevertheless,   See ch 7 section following n 124.   It has been seen that the doctrinal underpinnings for Aboriginal customary title are also consistent with the conventional view regarding the Crown’s radical title and the doctrine of tenure: ch 7 text to nn 342–43. 164   Re Paulette (1973) 42 DLR (3d) 8 (NWTSC). 165   Calder (n 2) 368 referred to by Morrow J in Re Paulette (n 164) 27 (‘possession as proof of ownership’). 166   Re Paulette (n 164) 28. While noting that Judson J’s remarks in Calder were authoritative on the question of Indian title (ibid 27), Morrow J’s reference to Judson J was limited to his statement: ‘Although I think it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their fore­ fathers had done for centuries. This is what Indian title means’: ibid 23–24. 167   RSC 1970, c L-4. 168   Re Paulette (n 164) 23. 169   ibid 27. 170   ibid 26–27. 171   ibid 27. 172   ibid 28. See also ibid 40. 173   ibid 27. 174   ibid 28. 162 163



Tenure, Radical Title and Aboriginal Land Rights 379

Morrow J held that Aboriginal title ‘constitutes an interest in land which can be protected by caveat under the Land Titles Act’175 and that ‘this applies even in the case of unpatented Crown land’.176 This raised the question: what was the legal nature of the Crown’s interest underlying Aboriginal title in respect of unalienated land? In this context, Morrow J emphasised that although the Crown’s position was that it held ‘some form of title in the lands purporting to be covered by the proposed caveat so the caveat is against Crown lands and against the Queen’,177 there was ‘no evidence of anything before [him] other than a proposed caveat’.178 For the purposes of argument, however, Morrow J was prepared to approach the issue on the basis that the land was ‘claimed to be Crown lands’.179 It is clear, therefore, that Morrow J did not consider unalienated land as automatically being regarded as ‘Crown land’ (as conventionally understood), irrespective of whether the land was subject to Aboriginal title. Indeed, Morrow J’s concern regarding the absence of evidence to properly answer the question of the Crown’s title to land (in the Crown’s favour) emphasises the principle, discussed in chapter six, that the Crown is not to be presumed to be the owner of land when a subject is in possession: how and why the Crown has title must be established; the Crown can be put to its proof; the Crown must prove its present title like anyone else. In this context, it has been seen that Morrow J concluded that the Aboriginal title to the claimed Crown land conferred prima facie ownership of the land on the Indians. Furthermore, despite the ‘complete and allembracing language’ of the two treaties which applied to the caveat area180 and appeared to obtain from the Indians ‘all their rights, titles and privileges whatsoever, to the lands’ and leave them with nothing,181 Morrow J suggested (in language reminiscent of Hall J in Calder) that by these treaties ‘all the Government did was confirm its paramount title’.182 Because the Government ‘sought these treaties to reassure their dominant title only’ the treaties did not terminate the Aboriginal title.183 Thus, Morrow J’s judgment indicates (like Hall J’s) that the Crown’s ‘paramount’ or ‘dominant’ title is the sovereign’s title as against other European sovereigns under international law. Moreover, if the claimed land was in fact ‘Crown land’, it did not mean it was Crown property. Rather, ‘Crown land’ appears to be a synonym for radical title: a bare legal title to land – the right to acquire and confer title, but not title itself.184   ibid 40.   ibid 39. See also ibid 40. See also PG McHugh, Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (New York, OUP, 2011) 73. 177   Re Paulette (1973) 39 DLR (3d) 45 (NWTSC) 56. 178  ibid. 179   ibid: ‘For the purpose of this argument, however, I will approach the problem on the basis that the greater part of the area that we are concerned with is claimed to be Crown lands by either the Crown in the right of Canada or by the Territorial Government’. 180   Treaty No 8 and Treaty No 11. 181   Re Paulette (n 164) 32. ‘The actual words are: “the said Indians DO HEREBY CEDE, RELEASE, SURRENDER AND YIELD UP”. Read in conjunction with “all their rights, titles and privileges” it is about as complete and all-embracing language as can be imagined. If one was to stop there, of course, the Indians were left nothing’: ibid. 182   ibid 33. 183  ibid. 184  See AJ Bradbrook, SV MacCallum and AP Moore, Australian Real Property Law, 4th edn (Sydney, Lawbook Co, 2007) 41 fn 35 and text citing U Secher, ‘The Doctrine of Tenure in Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction” – Part 1’ (2006) 13 Australian Property Law Journal 107 and U Secher, ‘The Doctrine of Tenure in Australia Post-Mabo: Replacing the “Feudal Fiction” with the “Mere Radical Title Fiction’’ – Part 2’ (2006) 13 Australian Property Law Journal 140. See 175 176

380  Canada Although Morrow J’s decision was reversed on appeal, both the Northwest Territories Court of Appeal and the Supreme Court of Canada decided the case exclusively on the ground that the Land Titles Act did not apply to the filing of caveats in relation to unalienated Crown lands.185 By doing so, both superior Courts avoided the Aboriginal title issue as well as the issue of the legal nature of the Crown’s title to land subject to Aboriginal title. What is clear is that the decision in Calder was a pioneering judgment with the Court’s reasoning opening a range of possibilities. Morrow J’s reliance on Hall J’s judgment is an example of how some of these possibilities were initially pursued and others disregarded.186 Calder’s affirmation of Aboriginal title as a legal right pre-dating colonisation and independent of the Royal Proclamation or any other prerogative act or legislation has been confirmed by subsequent decisions.187 However, although Hall J and Morrow J’s judgments in Calder and Re Paulette respectively conceptualised Aboriginal title in broad terms, subsequent cases have not provided a consistent approach to this aspect of Aboriginal title jurisprudence. Nevertheless, subsequent decisions have made critical observations regarding the legal nature of the Crown’s title to land upon settlement of inhabited territory consistent with Hall J and Morrow J’s judgments. This includes one of the most prominent post-Calder decisions on Aboriginal title: Baker Lake v Minister of Indian Affairs and Northern Development.188 Mahoney J’s judgment in Baker Lake was the first application of Aboriginal title to specific land. A number of Inuit organisations and individuals asserted an Aboriginal title to a portion of the Northwest Territories formerly within Rupert’s Land and sought, inter alia, a declaration that the lands comprising the Baker Lake area ‘are “subject to the aboriginal right and title of the Inuit residing in or near that area to hunt and fish thereon”’.189 In granting this declaration, Mahoney J rejected an argument that the Royal Charter of 2 May 1670 granting Rupert’s Land to the Hudson’s Bay Company had extinguished the Aboriginal title which existed when Britain asserted sovereignty over the land.190 After explaining that the Royal Charter established a proprietary colony and ‘granted title to the lands comprised in the colony to its proprietors’,191 Mahoney J emphasised that the: [C]oexistence [of aboriginal title] with the radical title of the Crown to land is characteristic of aboriginal title, and the company, in its ownership of Rupert’s Land, aside from its trading also ibid 39 fn 27; ch 4 text to nn 136, 140, 149, 202; ch 6 text to n 195ff. Although this conclusion appears to contradict Morrow J’s description of Aboriginal title as an estate of the Crown and the implication that it is within the doctrine of tenure, it is worth recalling that radical title is the postulate of the doctrine of tenure ad veritatem which allowed Aboriginal title to be accommodated within Australian land law. 185   Re Paulette (1975) 63 DLR (3d) 1 (NWTCA); Paulette v R [1977] 2 SCR. 628 (SCC). 186   Hall J’s test regarding extinguishment – requiring that Parliament’s intention be ‘clear and plain’ – was accepted post-Calder (at least pre-1982 constitutional entrenchment). cf below n 232. 187   cf Société de développement de la Baie James c Kanatewat [1975] CA 166 (CA Que). The decision in Calder had a major impact not just in terms of the judicial decisions which followed, but also on federal policy. Following Calder, the federal government implemented a comprehensive land claims policy to settle First Nations lands claims: see Task Force to Review Comprehensive Claims Policy, Living Treaties, Lasting Agreements (Department of Indian Affairs and Northern Development, Ottawa, 1974). 188   Baker Lake v Minister of Indian Affairs and Northern Development [1980] 1 FC 518 (Can FC). For comment see McNeil (n 14) 280–84; DW Elliott, ‘Baker Lake and the Concept of Aboriginal Title’ (1980) 18 Osgoode Hall Law Journal 653. 189   Baker Lake (n 188) 524. 190   ibid 563–66. See above text to nn 35–37 (Royal Charter). 191   ibid 564.



Tenure, Radical Title and Aboriginal Land Rights 381 posts, was very much in the position of the Crown. Its occupation of the territory in issue was, at most, notional.192 (emphasis added)

This is crucial: by equating the Hudson’s Bay Company’s ownership of Rupert’s Land with the Crown’s radical title, Mahoney J made it clear that the Crown’s radical title was a mere ‘notional’ title; it did not automatically confer ownership of land. This is of course consistent with the meaning of radical title in Mabo and the pre-Mabo leading Privy Council authorities considered in chapter two. Furthermore, Mahoney J suggested that the recognition of Aboriginal title by the Supreme Court of Canada ‘may well be based upon an acceptance of the reasoning of Marshall C.J. in Worcester v Georgia’.193 It has been seen that Worcester is important because in this case, Marshall CJ revised his position in Johnson and held that plenary rights to land were not automatically acquired by the Crown as a result of discovery: symbolic acts of discovery were no longer sufficient to confer possession. The Crown could not be said to have a present proprietary title unless it had taken actual occupation and possession. Indeed, Mahoney J drew a distinction between the Hudson’s Bay Company’s title to land in Rupert’s Land generally and to the trading posts it had established in Rupert’s Land: the trading posts were excluded from the Company’s ‘notional’ title because, in respect of the trading posts, the Company had taken actual possession.194 It has been seen that Rupert’s Land was considered to be a settled colony.195 Like Hall J in Calder, therefore, Mahoney J recognised a new class of settled colony at common law: one which, contrary to the conventional view, was regarded as inhabited for legal purposes: The Calder decision renders untenable, insofar as Canada is concerned, the defendant’s arguments that no aboriginal title exists in a settled, as distinguished from a conquered or ceded, colony and that there is no aboriginal title unless it has been recognized by statute or prerogative act of the Crown or by treaty having statutory effect.196

In holding that Aboriginal title existed in a settled colony, Mahoney J applied the ‘solid authority’ of Calder for the proposition that Aboriginal title ‘arises at common law’.197 It has been seen, however, that while the Calder decision acknowledged that the doctrine of tenure which applies in an inhabited settled colony is different from its feudal counterpart, it did not expressly clarify how the common law (especially the doctrine of tenure) accommodated pre-existing non-Crown derived title. In this context, Mahoney J expressly distinguished Milirrpum v Nabalco Pty Ltd198 which, by treating Australia as legally uninhabited under the traditional classification of settled colonies, held that the feudal doctrine of tenure applied and excluded any rights not derived from   ibid 565.   ibid 556–57. While Mahoney J noted that Marshall CJ’s decision in Worcester was referred to by both Judson J and Hall J in Calder, he accepted the reasoning of Marshall CJ in the quoted passage as Hall J had done; Judson J ignored Marshall CJ’s revised views in Worcester: above text to n 110ff. 194   Baker Lake (n 188) 577, see also 565. cf below text to n 228–30. 195   Above text to n 35–37. 196   Baker Lake (n 188) 557. See also ibid 556 where Mahoney J expressly stated that the judgments in Calder provide ‘solid authority for the general proposition that the law of Canada recognizes the existence of an aboriginal title independent of the Royal Proclamation or any other prerogative act or legislation. It arises at common law’. 197   ibid 556. 198   Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (NTSC): see Baker Lake (n 188) 557. 192 193

382  Canada Crown grant.199 Mahoney J made it clear that the Crown’s radical title in an inhabited settled colony was ‘peculiar to English law’,200 conferring only a notional title.201 Thus, the decision in Baker Lake and the Australian High Court’s decision in Mabo converge. This convergence is further highlighted by Mahoney J’s subsequent emphasis of the vulnerable nature of the Aboriginal title he found. Not only did he signal that Aboriginal title might not be able to stand alongside a Crown grant,202 but he also declared that to the extent that valid legislation ‘diminished’ the rights comprised in an Aboriginal title, the legislation prevailed.203 The effect of legislation on Aboriginal title was raised because the plaintiffs also sought declarations that the lands in dispute were ‘neither ‘“territorial lands” nor “public lands” as defined respectively in the Territorial Lands Act and the Public Lands Grants Act’.204 Although Mahoney J refused to grant these declarations, stating that the land was ‘territorial’ and ‘public’ land despite the Inuit’s title,205 his reasoning supports his earlier characterisation of the Crown’s radical title as a mere ‘notional’ title. For Mahoney J, the key statutory provision was section 4 of the Territorial Lands Act.206 This section authorised the sale or other disposition of territorial lands207 which were defined to ‘include all interests in land in the Northwest Territories, including mines and minerals, vested in Her Majesty in right of Canada or of which the federal government has power to dispose’ (emphasis added).208 By concluding that the land in question came within this definition, Mahoney J merely recognised another aspect of the Crown’s radical title: although conferring no automatic beneficial entitlement to land, radical title (as ‘a concomitant of sovereignty’) confers power on the Crown to grant land in every part of the Northwest Territories so that the doctrine of tenure (with radical title as its ‘postulate’) may apply to that land.209 Since the relevant unalienated land was clearly subject to the Inuit’s title,210 Baker Lake confirms that until the Crown validly exercises its sovereign power to create interests in land in itself or others, neither the Crown nor any person claiming a derivative title from the Crown, has any interest in the land.211 199   Blackburn J’s treatment of the early Australian authorities in Milirrpum is discussed in ch 1 text to n 232ff. 200   Baker Lake (n 188) 565. 201  ibid. 202   ibid 564. See also below text to n 228–30. This was, however, in the pre-s 35 of the Constitution era. 203   ibid 576. While noting that ‘the Inuit may or may not be entitled to compensation’, because compensation was not sought in the action Mahoney J did not decide the issue. He also noted that ‘Parliament’s intention to extinguish an aboriginal title’ need not be express: 568–69, 575. 204   ibid 524–25. 205   ibid 576. 206   ibid 573. 207   ‘Subject to this Act, the Governor in Council may authorize the sale, lease or other disposition of territorial lands and may make regulations authorizing the Minister to sell, lease or otherwise dispose of territorial lands subject to such limitations and conditions as the Governor in Council may prescribe’. 208   Baker Lake (n 188) 573. 209  Mahoney J expressly stated that ‘Section 4 of the Territorial Lands Act is a competent exercise by Parliament of the right to dispose of the lands in question’: ibid 575. The defendants also argued that the legislation amounted ‘to the exercise by Parliament of “a sovereignty inconsistent with any conflicting interest, including one as to ‘aboriginal title’”’: 572. 210   Which was diminished, but not extinguished by the legislation. 211   Indeed, in the event that the Crown was held to have acquired a beneficial title to any, or all, unalienated land not subject to Aboriginal title, as a result of the various statutory definitions of ‘Crown land’, the argument that radical title is merely a bare legal title rather than a full proprietary right is intact. This is because a full beneficial title does not vest in the Crown by the common law but by force of statute.



Tenure, Radical Title and Aboriginal Land Rights 383

In the context of proving Aboriginal title, Mahoney J required ‘physical presence on the land . . . occupied’212 and ‘that there existed among the aborigines a recognition of the claimed rights . . . by the regime that prevailed before’.213 The former relates to Mahoney J’s requirement for exclusive occupation vis-a-vis other Aboriginal groups to be an established fact at the time the Crown asserted sovereignty.214 The latter is an aspect of the requirement for the existence of an ‘organized society’ as a prerequisite for establishing Aboriginal title.215 Mahoney J did, however, make it clear that these elements of proof are interrelated. Explaining that an ‘organized society’ was required by the authorities, he cited Judson J and Hall J’s Calder judgments which, respectively, emphasised the phrase ‘organized in societies’ and the passage from Worcester: ‘having institutions of their own, and governing themselves by their own laws’.216 It has been seen that both Judson J and Hall J only required proof of occupation of land as part of a system of Aboriginal laws/customs pursuant to which land was utilised in a meaningful way. Mahoney J’s judgment supports this view. Having found that the evidence established the Inuit were ‘a society organized to exploit the resources available on the barrens and essential to sustain human life there’,217 he explained that the extent of physical presence on land occupied by Aboriginal people is to be determined in each case by a subjective test. To the extent human beings were capable of surviving on the barren lands, the Inuit were there; to the extent the barrens lent themselves to human occupation, the Inuit occupied them.218 (emphasis added)

The ‘subjective test’ of occupation, therefore, refers to occupation pursuant to an organised society’s system of laws/customs by which land was utilised in a meaningful way.219 Mahoney J’s reference to exclusive occupation and Aboriginal laws/customs is not inconsistent with Brennan J’s principal judgment in Mabo which referred (on the facts of the case) to ‘exclusive possession of land’ and ‘Aboriginal laws and customs’ when

  Baker Lake (n 188) 561. See Mabo (n 3) 51, 51–52, 61–62 (Brennan J).   ibid 559. See Mabo (n 3) 58, also 51–52, 61–62 (Brennan J). 214   ibid 557–58: ‘The elements which the plaintiffs must prove to establish an aboriginal title cognizable at common law are: 212 213

“1. That they and their ancestors were members of an organized society. 2. That the organized society occupied the specific territory over which they assert the aboriginal title. 3. That the occupation was to the exclusion of other organized societies. 4. That the occupation was an established fact at the time sovereignty was asserted by England”’.   Baker Lake (n 188) 558.  ibid. 217   ibid 559. See also below text to n 225. 218   ibid 561. See also ibid 559: ‘there appears no valid reason to demand proof of the existence of a society more elaborately structured than is necessary to demonstrate that there existed among the aborigines a recognition of the claimed rights, sufficiently defined to permit their recognition by the common law upon its advent in the territory’. 219   This is also supported by the fact that Mahoney J regards Aboriginal title as dependent on customary laws/customs: see below text to n 221. Further support includes the facts that the occupation must have been to the exclusion of other organised societies governing themselves by their own laws (557–58, 561, see also 558) and that ‘the organization of any society will be a function of the needs of its members’: 559. In the event that this conclusion is incorrect and Mahoney J required physical occupation per se and an organised society governed by its own laws, occupation would simply be required as a matter of law and thus not disturb the fact that Aboriginal title has its origins in Aboriginal laws/customs. 215 216

384  Canada discussing the origin and nature of native title.220 Furthermore (and again, like Brennan J in Mabo), Mahoney J emphasised that Aboriginal title has its origins in Aboriginal customary laws.221 Indeed, evidence of the existence of laws/customs pursuant to which occupation of land was part of a system by which land was utilised in a meaningful way was of central importance in Baker Lake and Mabo.222 While the evidence in Baker Lake was admittedly ‘meagre’,223 it included Inuit witnesses who had personal recollections of life before settlement and who also spoke ‘of the experiences of their forefathers’.224 Mahoney J found as fact that the aboriginal Inuit had an organized society. It was not a society with very elaborate institutions but it was a society organized to exploit the resources available on the barrens and essential to sustain human life there. That was about all they could do: hunt and fish and survive.225

And because the declaration which the plaintiffs sought was that the lands comprising the Baker Lake area ‘are “subject to the aboriginal right and title of the Inuit residing in or near that area to hunt and fish thereon”’ (emphasis added),226 he added that ‘[t]he aboriginal title asserted here encompasses only the right to hunt and fish as their ancestors did’.227 Later, however, he concluded that the Inuit did not have a proprietary right by virtue of their Aboriginal title because if they did ‘it would necessarily have been extinguished by the Royal Charter of 2nd May 1670’.228 Mahoney J’s indication that Aboriginal title is susceptible to extinguishment by Crown grant per se is clearly in accord with the decision in Mabo. And, while the Mabo High Court found that the relevant native title was a proprietary title, Brennan J explained that ‘[t]he fact that individual members of the community . . . enjoy only usufructuary rights that are not proprietary in nature is no 220   As to exclusive possession of land: Mabo (n 3) 51 (‘If it be necessary to categorize an interest in land as proprietary in order that it survive a change in sovereignty, the interest possessed by a community that is in exclusive possession of land falls into that category’), see also 51–52, 61–62. As to Indigenous laws and customs: Mabo (n 3) 58, see also 51–52, 60, 61–62; ibid 15 (Mason CJ and McHugh J summarising the outcome of Mabo with the express consent of all members of the Court). McNeil has suggested that Brennan J offered two sources for Aboriginal land rights: see K McNeil, ‘The Sources and Content of Indigenous Land Rights in Australia and Canada: A Critical Comparison’ in LA Knafla and H Westra, Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand (Vancouver, UBC Press, 2010) 146, 148. 221   Baker Lake (n 188) 565; Mabo (n 3) 58 (Brennan J). 222  In Mabo (n 3) 146 Toohey J suggested that ‘Hamlet of Baker Lake and like authority may be analysed in the following way. Ultimately, traditional title has a common law existence because the common law recognises the survival of traditional interests and operates to protect them. Proof of existence, therefore, is a threshold question’ (emphasis added). Post-Mabo, however, Australian native title jurisprudence has demanded particularisation of each and every element of traditional laws and customs: see ch 7 text to n 260. 223   Baker Lake (n 188) 555, 562. Mahoney J observed that ‘[t]he meagreness of the evidence is, however, inherent in its subject matter. The barren lands are vast and their inhabitants few and, until the present generation, widely scattered and constantly on the move. Their history, beyond living memory, is unrecorded except by the handful of whites who, largely by accident, encountered them. Their resources did not interest early traders; their nomadic ways and tiny camps did not arouse the enthusiasm of missionaries. Snow houses leave no ruins and, until the protohistoric period, most of their tools and weapons were made of local materials which, like themselves, their dogs and tents, were organic and hence biodegradable. Even today the mineral exploration is carried on over large areas where, except near major water crossings close to the community, even the Inuit hunters are quite unlikely to come across them. Two or three witnessed incidents may well reflect a reality of countless unwitnessed incidents’: ibid 555. 224   ibid 535. 225   ibid 559. 226   ibid 524. 227   ibid 559. 228   ibid 577.



Tenure, Radical Title and Aboriginal Land Rights 385

impediment to the recognition of a proprietary community title’.229 Mahoney J’s decision is, therefore, not inconsistent with the existence of an over-arching proprietary title held by the whole community within which non-proprietary usufructuary rights are held.230 Baker Lake is effectively Mabo’s Canadian counterpart (albeit pre-dating it by some 13 years). Furthermore, in the most important decision after Baker Lake – Guerin v R231 – the majority of the Supreme Court of Canada also regarded the nature of the Crown’s radical title as a bare legal title to land and confirmed the importance of pre-existing systems of Aboriginal laws/customs in the context of establishing Aboriginal title. Although the decision in Guerin is important for developing the doctrine of Crown fiduciary duty to Indian bands,232 in the course of the decision there was authoritative discussion of Aboriginal title. Indeed, the basis and nature of Aboriginal title was central to identifying and defining the Crown’s fiduciary obligations.233 Discussing the basis for the existence of Aboriginal title, the leading judgment of Dickson J234 noted that the decision in Calder ‘recognized aboriginal title as a legal right derived from the Indians’ historic occupation and possession of their tribal lands’.235 He also noted that in confirming the existence of Aboriginal title in Canada independently of the Royal Proclamation, the decision in Calder was consistent with the leading American cases of Johnson and Worcester.236 Dickson J then turned to an examination of Marshall CJ’s judgement in Johnson. He emphasised that while Marshall CJ acknow­ ledged the Proclamation as one basis for recognition of Indian title, he was nonetheless of the ‘opinion that the rights of Indians in the lands they traditionally occupied prior to European colonization both predated and survived the claims to sovereignty made by various European nations in the territories of the North American continent’ (emphasis added).237 Dickson J concluded by referring (as Brennan J did in Mabo) to the principle,   Mabo (n 3) 51.   Indeed, Mahoney J’s formal declaration of the Inuit’s rights stated ‘The plaintiffs are entitled to a declaration that the lands . . . are subject to the aboriginal right and title of the Inuit to hunt and fish thereon’ (emphasis added): Baker Lake (n 188) 579. 231   Guerin v R [1984] 2 SCR 335 (SCC). 232   Rendering inapplicable the previously prevailing notion of ‘political trust’ in Crown-band relations as explained in Kinloch v Secretary of State for India in Council (1882) 7 App Cas 619 (HL); Tito v Waddell (No 2) [1977] Ch 106 (Ch D): see Guerin (n 231) 378–79. The duty emerged in Guerin in relation to the Crown’s disposition of the process for the surrender of reservation land by the Musqueam band under the Indian Act. See also Wewaykum Indian Band v Canada 2002 SCC 79, [2002] 4 SCR 245. Although the decision in Chippewas of Sarnia Band v Attorney-General (Canada) (2000) 195 DLR (4th) 135 (Ont CA) protected pre-s 35 Crown grants from Aboriginal title (by holding that the title of bona fide third-party grantees of Crown estates would not be impeached on the ground of unextinguished Aboriginal title), the Crown was still liable for compensation for breach of fiduciary duty (on the authority of Guerin) or on the basis of a public law liability for past breaches of its constitutional obligation to properly consult on the authority of Beckman v Little Salmon/Carmacks First Nation 2010 SCC 53, [2010] 3 SCR 103. 233   The nature of Aboriginal title and the surrender provisions of the Indian Act put the Crown in a fiduciary position because the Crown’s obligations to act on the band’s behalf under the Act carried with it a discretionary power. Furthermore, the fact that Aboriginal title was an independent legal interest made the duty a matter of public law: Guerin (n 231) 385–88. 234   Beetz, Chouinard and Lamer JJ concurring. While Wilson J (delivering the judgment of herself, Ritchie and McIntyre JJ) also held that the Crown’s fiduciary obligation had its roots in Aboriginal title, she limited her judgment to a consideration of the issue of the Aboriginal interest in reserve lands. Although Estey J concurred in the result, he relied on agency law. 235   Guerin (n 231) 376. 236   ibid 376–77. 237   ibid 377–78. 229 230

386  Canada approved by the Privy Council in Amodu,238 that ‘a change in sovereignty over a particular territory does not in general affect the presumptive title of the inhabitants’.239 In Amodu the presumptive title of the African inhabitants of Southern Nigeria was based on their laws/customs which existed before the territory was ceded to Britain. And it was the principle in Amodu (rather than the decision in Johnson) which supported ‘the assumption implicit in Calder that Indian title is an independent legal right which, although recognized by the Royal Proclamation of 1763, nonetheless predates it’.240 Implicit in this reasoning is a presumption that Aboriginal people had title to their lands by virtue of their own systems prior to colonisation241 and that, despite the Crown’s acquisition of sovereignty, such pre-existing title continued.242 This is reinforced by Dickson J’s assertion that the ‘[Indians’] interest in their lands is a pre-existing legal right not created by Royal Proclamation, . . . or by any other executive order or legislative provision’ (emphasis added).243 Indeed, it is an example of pre-existing rights surviving sovereignty by operation of law: by application of the doctrine of continuity, whether conventional or pro-tempore.244 While Dickson J’s approach – referring to the principle approved in Amodu in the context of a ceded colony – suggests that the preferable rule (identified in chapter three and by Hall J in Calder)245 applies to the inhabited settled colony of British Columbia, it will be seen in a moment that his characterisation of Aboriginal title denies such a conclusion.246 Nevertheless, and perhaps more importantly, his approach recognises that the source of Aboriginal title lies in the relationship between pre-existing systems of Aboriginal laws/customs and the common law.247 In this context, Dickson J’s critical (but brief) discussion of the Crown’s radical title provides insight into the nature of the relationship between pre-existing Aboriginal laws/customs and the common law. Referring to Viscount Haldane’s description of the sovereign’s radical title in Amodu, Dickson J emphasised that it was ‘a pure legal estate’ which could be ‘qualified by a right of “beneficial user” that did not necessarily take the form of an estate in land’ (emphasis   Amodu (n 128) 407.   Guerin (n 231) 378. See also Mabo (n 3) 57 (Brennan J). cf the High Court’s rule: ch 3 text to n 264ff. 240   Guerin (n 231) 378. 241   See a similar presumption in Marshall CJ’s judgment in Worcester (n 109) 559 where he recognised that the claims of the Cherokee must be analysed in light of their pre-existing occupation of the land – their ‘undisputed’ possession of the soil ‘from time immemorial’. See also McNeil (n 66) 136. 242   See also Delgamuukw (n 2) [114] (Lamer CJ); McNeil (n 66) 136. cf McNeil (n 14) 285–88; Young, The Trouble with Tradition (n 160) 133–34. 243   Guerin (n 231) 379. 244  Although Amodu is authority for the conventional doctrine of continuity and Mabo is authority for the doctrine of continuity pro-tempore, Mabo was decided after Guerin. For judicial acceptance of the doctrine of continuity pro-tempore, see Gumana v Northern Territory [2005] FCA 50, (2005) 141 FCR 457 [121] citing U Secher, ‘The Reception of Land Law into the Australian Colonies Post-Mabo: The Continuity and Recognition Doctrines Revisited and the Emergence of the Doctrine of Continuity Pro-Tempore’ (2004) 27 University of New South Wales Law Journal 703. 245   See above text to nn 136–38. 246   Since the preferable rule posits that the rule for determining the effect of colonisation on pre-existing rights in any inhabited colony is the rule which applies in conquered/ceded colonies, where English law is introduced in toto the Aboriginal inhabitants would have acquired a common law title to their land without grant or confirmation of the new sovereign: fee simple estates. See ch 3 text to nn 228, 258ff, text in para preceding n 334. 247   Delgamuukw (n 2) [114] where Lamer CJ referred to it as the ‘relationship between common law and preexisting systems of aboriginal law’. 238 239



Tenure, Radical Title and Aboriginal Land Rights 387

added).248 He noted that Viscount Haldane cited Indian title in Canada as illustrating ‘the necessity for getting rid of the assumption that the ownership of land naturally breaks itself up into estates, conceived as creatures of inherent legal principle.’249 He also explained and discounted the characterisation of Aboriginal title as ‘personal and usufructuary’,250 preferring to conceptualise it as a sui generis interest – which, although not ‘strictly’ amounting to beneficial ownership,251 appeared to nevertheless equate with it.252 It follows from the foregoing that the Crown’s radical title is a bare legal title to land and that the common law can accommodate interests not derived from Crown grant – such as sui generis Aboriginal title. That these two propositions are intrinsically interrelated is clear from Dickson J’s statement that pursuant to their sui generis pre-existing interest ‘Indians have a legal right to occupy and possess certain lands, the ultimate [radical] title to which is in the Crown’ at common law.253 This rudimentary explanation demonstrates (albeit without elaborating precisely how) the relationship between preexisting Aboriginal laws/customs and the common law is the source of Aboriginal title. Because Dickson J held that the Aboriginal interest in reserve lands is derived from and is of the same nature as Aboriginal title at common law, his comments regarding the nature of Aboriginal title and the Crown’s underlying radical title are authoritative.254 Furthermore, in Roberts v Canada255 the Supreme Court (with Dickson as Chief Justice)   Guerin (n 231) 380.   ibid. Dickson J also noted that Marshall CJ took a similar view in Johnson when he said ‘All our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy’: ibid. 250   ibid 379–82. 251   ibid 382. Indeed, it was in the context of the sui generis relationship, that it was not improper to regard the Crown as a fiduciary: ibid 385. 252   ibid 382: ‘It appears to me that there is no real conflict between the cases which characterize Indian title as a beneficial interest of some sort, and those which characterize it a personal, usufructuary right. Any apparent inconsistency derives from the fact that in describing what constitutes a unique interest in land the courts have almost inevitably found themselves applying a somewhat inappropriate terminology drawn from general property law’. See also ibid 379. 253   ibid 382. See also Delgamuukw (n 2) [114] (Lamer CJ). cf McNeil (n 14) 285–88; Young (n 160) 133–34. 254   See also Delgamuukw (n 2) [192]. 255   Roberts v Canada [1989] SCR 322 (SCC) (also cited as Wewayakum Indian Band v Canada (1989) 3 RPR (2d) 1, 25 FTR 161, 92 NR 241, sub nom Roberts v Canada (1989) 57 DLR (4th) 197, sub nom Roberts v Canada [1989] 1 SCR 322, sub nom Roberts v Canada [1989] 3 WWR 117, sub nom Roberts v Canada [1989] 2 CNLR 146, sub nom Roberts v Canada (1989) 35 BCLR (2d) 1). The issue in Roberts was whether the Federal Court had jurisdiction to hear a trespass action brought by the plaintiff Band against the defendant Band which itself required determination of which Band had the right to the use and occupation of the Quinsam Indian Reserve. The plaintiff Band alleged, inter alia, that the Crown breached its fiduciary duty to protect the Band’s interest in the Reserve and that the Reserve was and had always been set aside for its exclusive use and benefit. It further alleged that the Crown was in breach of the statutory duties owed to it under various provisions of the Indian Act. The defendant Band claimed that the Crown owed to it alone the obligation to hold the land comprising the Quinsam Indian Reserve for its exclusive use and occupancy. The Federal Court held that it had jurisdiction to hear the claim. The Court started by stating the proposition that jurisdiction in the Federal Court depends on there being: (1) a statutory grant of jurisdiction by Parliament; (2) an existing body of federal law, essential to the disposition of the case, which nourishes the statutory grant of jurisdiction; and (3) ‘a law of Canada’ within the meaning of s 101 of the Constitution Act 1867 on which the case is based. The Court found that s 17(3)(c) of the Federal Court Act conferred the necessary jurisdiction. That section required (a) a proceeding, (b) to determine a dispute, (c) where the Crown is or may be under an obligation, (d) in respect of which there are or may be conflicting claims. The first two requirements were met because a proceeding was required to determine the dispute between the two Bands and there were conflicting claims to an obligation owed by the Crown. The remaining two requirements were met because ‘laws of Canada’ were exclusively required for the disposition of the appeal – the relevant provisions of the Indian Act codified the pre-existing duties of the Crown toward the Indians, the act of the federal executive pursuant to the Indian Act in setting aside the reserve in issue for the use and occupancy of one or other of the two Bands, and the common law of Aboriginal title underlying the fiduciary obligations of the Crown to both Bands. 248 249

388  Canada expressly approved of the ‘unique relationship’ between pre-existing Aboriginal title and the Crown’s common law radical title identified in Guerin.256 Indeed, it will be seen that the ‘relationship between common law and pre-existing systems of aboriginal law’ was expressly suggested as an alternative source for Aboriginal title by the Supreme Court in Delgamuukw despite emphasising the requirement for occupation of land at the date the Crown asserted sovereignty to establish Aboriginal title. C  Summary: the Canadian Jurisprudence pre-Delgamuukw It is clear from the foregoing analysis of pre-Delgamuukw cases that all of these cases are open to an interpretation which, contrary to the conventional view, supports the proposition that Aboriginal title is not based simply on occupation of land at the date the Crown asserted sovereignty. Indeed, notwithstanding the absence of a unified vision, a number of fundamental propositions emerge regarding the interrelated issues of the source and proof of Aboriginal title and the legal nature of the Crown’s radical title: 1. Rather than being the source of Aboriginal title, the Royal Proclamation of 1763 recognised pre-existing Aboriginal title at common law (Guerin, Baker Lake, Re Paulette, Calder). 2. Aboriginal title is based upon pre-sovereignty Aboriginal occupation of land pursuant to a system of Aboriginal laws/customs by which land was used in a meaningful way from the Aboriginal perspective (Guerin, Baker Lake, Calder). 3. There is a presumption that the title to land Aboriginal people had by virtue of their own systems of laws/customs before Crown sovereignty continued post-sovereignty (Roberts, Guerin, Re Paulette, Hall J in Calder).257 4. Following from 2 and 3, Aboriginal title has its origin in the body of Aboriginal laws/customs which existed before Crown sovereignty (Roberts, Guerin, Baker Lake, Re Paulette, Calder). 5. Pre-sovereignty Aboriginal occupation of land pursuant to a system of laws/customs must have been to the exclusion of other Aboriginal groups (Guerin, Baker Lake). 6. Evidence – even if only meagre or admitted – of the existence of Aboriginal laws/ customs pursuant to which occupation of land was part of a system by which land was used in a meaningful way is the threshold question (Baker Lake, Calder).258 7. Following from 6, there is no requirement to identify each and every element of the laws/customs or to identify the rights and interests regarding land which are possessed under those laws/customs to prove Aboriginal title (Guerin, Baker Lake, Calder). 256   Roberts (n 255) 340. Wilson J delivering the judgment of the Court (Dickson CJ, Beetz, Wilson, Le Dain JJ – although Le Dain J took no part in the judgment) said: ‘As Dickson J. (as he then was) pointed out in Guerin, supra, aboriginal title pre-dated colonization by the British and survived British claims of sovereignty. The Indians’ right of occupation and possession continued as a “burden on the radical or final title of the Sovereign”: per Viscount Haldane in Amodu Tijani v. Southern Nigeria (Secretary), [1921] 2 A.C. 399 (P.C.), at p. 403. While, as was made clear in Guerin, s 18(1) of the Indian Act did not create the unique relationship between the Crown and the Indians, it certainly incorporated it into federal law by affirming that “reserves are held by Her Majesty for the use and benefit of the respective bands for which they were set apart”’. 257   This is consistent with the continuity limb of the doctrine of continuity pro-tempore, which is itself not inconsistent with the conventional doctrine of continuity. 258   Such evidence then raises the presumption identified in proposition 3. In DelgamuukwCA (n 149) 497 Macfarlane JA (Taggart JA concurring) said that Baker Lake ‘illustrates the established common law approach to the proof of an aboriginal right’.



Tenure, Radical Title and Aboriginal Land Rights 389

8. Aboriginal title is sui generis (Guerin, Re Paulette). 9. Where sovereignty is acquired over settled yet inhabited territory, the legal nature of the Crown’s title to land (its radical title) is different from the Crown’s title to land under feudal theory: it is a mere notional title, a bare legal title – the right to acquire and confer title, but not title itself (Roberts, Guerin, Baker Lake, Re Paulette, Calder).259 10. The doctrine of tenure that applies in Canada is different from the feudal doctrine (Guerin, Baker Lake, Calder).260 11. The relationship between pre-existing systems of Aboriginal laws/customs and the common law is the source of Aboriginal title (Roberts, Guerin, Baker Lake, Hall J in Calder).261 These fundamental principles are consistent with those underlying the doctrine of Aboriginal customary title. The pre-Delgamuukw cases do, however, diverge from the doctrine in two respects: they fail to clarify the content of Aboriginal title262 and they acknowledge its vulnerability (pre-1982) to extinguishment by Crown grant, legislation or other administrative action.263 Nevertheless, on the critical question of the basis and 259   It has been seen that statutory regimes declaring all the unappropriated/unalienated lands to be Crown lands merely regulate the Crown’s power of disposition over all land: Re Paulette, Baker Lake. While the Ontario High Court of Justice decision in Attorney-General for Ontario v Bear Island Foundation (1984) 49 OR (2d) 353 1 (Ont HC) might be interpreted as not supporting this proposition or proposition 9, Steele J’s judgment is distinguished in the context of common law Aboriginal title. The A-G for Ontario brought an action against Bear Island Foundation after the latter registered cautions against tracts of unceded land on behalf of the Temagami Band of Indians. The A-G applied for a declaration that the relevant lands were public lands within the meaning of the Public Lands Act and that the Indians had no right, title or interest in the lands. The Foundation counterclaimed seeking a declaration of quiet title on the ground that they had a better right to possession of all the lands by virtue of their Aboriginal rights in the land. Ontario claimed that the Indians had no Aboriginal right in relation to the land, or that any right they might have had had been extinguished, either by treaty or unilateral act of the sovereign. Steele J granted the declaration sought by the A-G and dismissed the counterclaim. The majority of the land in this case was governed by the Royal Proclamation 1763 and Steele J focused on the Proclamation to emphasise the limited and dependent nature of the interest it created: ibid 372ff. Although he identified the law applicable to the small area of land not subject to the Royal Proclamation (because it was in Rupert’s land at the time) as being set out in Baker Lake and Calder, he stated that these cases established ‘that aboriginal rights exist at common law independent of the Royal Proclamation, and are personal and usufructuary and dependent upon the pleasure of the Crown’: ibid 385. For Steele J, it followed that the ‘only difference between the common law and the Royal Proclamation is that under the Royal Proclamation the relevant date for determining aboriginal rights is 1763, whereas at common law the relevant date for determining aboriginal rights is the coming of settlement. In all other respects, the aboriginal rights of the Indians and the Crown is the same’: ibid. Such a position is, with respect, not sustainable given the clear acceptance of the common law doctrine not limited by the terms of the Proclamation at the time of Steele J’s decision. Accordingly, Steele J’s findings regarding Aboriginal title and the Crown’s title at common law are distinguished from Aboriginal title and the Crown’s title under the common law doctrine of Aboriginal title as articulated in Calder, Baker Lake and Guerin. Steele J found that there was no Aboriginal right to the land, and that even if such a right had existed, it had been extinguished by the Robinson-Huron Treaty of 1850. Although his decision was upheld on appeal, both the Ontario Court of Appeal (1989) and the Canadian Supreme Court (1991) substantially agreed with Steele J on the issue of extinguishment and did not, therefore, consider Steele J’s approach to proof or content: see Ontario (Attorney-General) v Bear Island Foundation (1989) 68 OR (2d) 394 (Ont CA); Ontario (Attorney-General) v Bear Island Foundation (1991) 2 SCR 570 (SCC). 260   This is consistent with the doctrine of tenure ad veritatem. 261   See also DelgamuukwCA (n 149) 492 last para (Macfarlane JA, Taggart JA concurring), cf ibid first para under heading ‘Proving Aboriginal Rights’; 568, 570–71 (Wallace JA); 651–52, 655–56 (Lambert JA). 262   Nevertheless, the cases do suggest that the conceptualisation of Aboriginal title is broad: occupation and enjoyment of the land is not qualified other than being inalienable except to the Crown (Hall J in Calder; Guerin). Indeed, a finding that Aboriginal title consists of individual usufructuary rights is not inconsistent with the existence of an over-arching communal proprietary title (Baker Lake). 263   See, eg, Calder (n 62) 337, 344 (Judson J) (above nn 115, 118 and text); Baker Lake (n 231) 564, 577 (Mahoney J) (above nn 202, 228 and text). On the issue of executive extinguishment without legislative authority compare above n 7; ch 3 text to nn 226ff, 281–95; K McNeil, ‘Extinguishment of Aboriginal Title in Canada:

390  Canada nature of Aboriginal title, the pre-Delgamuukw Canadian Aboriginal title jurisprudence and Aboriginal customary title is ad idem. They are also ad idem on the related and equally important question of the legal nature of the Crown’s title to land in an inhabited settled colony. Indeed, the conceptual relationship between the Crown’s radical title and the basis and nature of Aboriginal title was explained by Lamer CJ (writing for the majority of the Supreme Court of Canada) in R v Van der Peet.264 Although Van der Peet concerned Aboriginal rights, as opposed to Aboriginal title, the Supreme Court clarified the relationship between the two concepts: ‘aboriginal title is a sub-category of aboriginal rights which deals solely with claims of rights to land’.265 Aboriginal title thus falls within the conceptual framework of Aboriginal rights; it is not however a prerequisite for Aboriginal rights. Where land has not been sufficiently occupied to establish Aboriginal title, Aboriginal people may nevertheless be entitled to specific activity rights over the land. And the Van der Peet Court developed the ‘integral to the distinctive culture’ test for establishing the more limited Aboriginal rights.266 In order to be an Aboriginal right, an activity must be ‘an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right’;267 it must be a ‘defining feature of the culture in question’;268 and it must have continuity with the traditions, customs and practices that existed prior to European contact.269 Lamer CJ explained that basing Aboriginal rights in traditional laws/customs is the same basis adopted for Aboriginal title in Mabo.270 At this juncture, it is important to note that because the concept of Aboriginal title developed in Mabo and subsequent Australian case law – and referred to as native title – is a single concept, the precise content of the title depending on the laws/customs of the group claiming native title, the differentiation between rights and title in Canadian jurisprudence is part of the single Treaties, Legislation, and Judicial Discretion’ (2001–02) 33 Ottawa Law Review 301, 327–44 (discussing Chippewas of Sarnia Band v Attorney-General (Canada) (n 232)). 264   Above n 8. The judgment of Lamer CJ and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ was delivered by the Chief Justice. For discussion of this case see K McNeil, ‘Aboriginal Title and Aboriginal Rights: What’s the Connection?’ (1997) 36 Alberta Law Review 759; RL Barsh and J Youngblood Henderson, ‘The Supreme Court’s Van Der Peet Trilogy: Naïve Imperialism and Ropes of Sand’ (1997) 42 McGill Law Journal 993; A Zalewski, ‘From Sparrow to Van Der Peet: The Evolution of a Definition of Aboriginal Rights’ (1997) 55 University of Toronto Faculty Law Review 435; J Borrows, ‘Frozen Rights in Canada: Constitutional Interpretation and the Trickster’ (1997–98) 22 American Indian Law Review 37; D Lambert, ‘Van Der Peet and Delgamuukw: Ten Unresolved Issues’ (1998) 32 UBC Law Review 249. 265   Van der Peet (n 8) [74]. This is also consistent with the Court’s subsequent pronouncement that Aboriginal title is ‘simply one manifestation of a broader‑based conception of aboriginal rights’: R v Adams [1996] 3 SCR 101 (SCC) [25] (Lamer CJ). 266   The jurisprudence on Aboriginal rights began with the Supreme Court decision in R v Sparrow [1990] 1 SCR 1075 (SCC) which acknowledged an Aboriginal right to fish for food, societal and ceremonial purposes. For critical commentary on the ‘integral to the distinctive culture’ test see McNeil, ‘Aboriginal Title and Aboriginal Rights’ (n 264); Barsh and Henderson (n 264); Borrows, ‘Frozen Rights in Canada’ (n 264); P Macklem, Indigenous Difference and the Constitution of Canada (Toronto, University of Toronto Press, 2001) 59–61. 267   Van der Peet, (n 8) [46]. 268   ibid [59]. See also ibid [55]: ‘To satisfy the integral to a distinctive culture test the aboriginal claimant must do more than demonstrate that a practice, custom or tradition was an aspect of, or took place in, the aboriginal society of which he or she is a part. The claimant must demonstrate that the practice, custom or tradition was a central and significant part of the society’s distinctive culture. He or she must demonstrate, in other words, that the practice, custom or tradition was one of the things which made the culture of the society distinctive – that it was one of the things that truly made the society what it was’. 269   ibid [59]–[65]. 270   ibid [40].



Tenure, Radical Title and Aboriginal Land Rights 391

native title concept.271 The crucial point, however, lies in Lamer CJ’s implicit acceptance of the premise from which Brennan J, writing for the majority of the Mabo High Court, considered the basis of Aboriginal title. Observing that ‘[t]he Mabo judgment resolved the dispute between the Meriam people and the Crown regarding who had title to the Murray Islands’,272 Lamer CJ emphasised the High Court’s rejection of the argument that the Crown’s acquisition of sovereignty upon annexation of the islands in 1879 ‘was sufficient to vest absolute ownership of the lands in the Crown’.273 While annexation did vest radical title in the Crown, it was insufficient to eliminate a claim for native title; native title can exist as a burden on the radical title of the Crown.274 In this context, Lamer CJ quoted Brennan J’s critical premise: ‘It is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty’ (emphasis added).275 From this premise – that radical title (as a concomitant of sovereignty) does not confer beneficial ownership of land on the Crown – Brennan J concluded: ‘[n]ative title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory’.276 He also affirmed that recognition of native title had been denied in a settled yet inhabited colony because of the fictions ‘that customary rights could not be reconciled “with the institutions or the legal ideas of civilized society”’ and ‘that there was no law before the arrival of the British colonists in a settled colony and that there was no sovereign law-maker in the territory of a settled colony before sovereignty was acquired by the Crown’.277 Thus, in recognising pre-existing Aboriginal customary law and accommodating it within the post-Crown sovereignty legal system, the Mabo decision recognised the bare legal nature of the Crown’s radical title and the fact that Aboriginal people had sovereign rights before the Crown acquired sovereignty (at least in relation to land).278 While Lamer CJ expressly adopted Brennan J’s approach in the context of Aboriginal rights,279 the Chief Justice also made it clear that he endorsed this approach in the context of Aboriginal title: ‘[d]espite . . . relevant differences, the analysis of the basis of aboriginal title in the landmark decision of the High Court in Mabo . . . is persuasive in the Canadian context’.280 The interrelationship between the Crown’s radical title and the 271   While it may be that native title in a particular case will amount to exclusive possession (as was the case in Mabo), in other cases the title will amount to less than exclusive possession and perhaps consist of use rights only. In the Australian native title jurisprudence, all those rights are covered by the concept of native title and as a result amount to some interest in land. Although at least three members of the majority of the High Court in Mabo held that native title is an interest in land (see Brennan J at 51), the majority of the Full Federal Court in Western Australia v Ward [2000] FCA 191, (2000) 99 FCR 316 (FCAFC) considered that native title constituted merely a ‘bundle of rights’ (see Beaumont and von Doussa JJ at [109]). However, the majority did conclude that ‘[t]o describe native title as a bundle of rights is not to deny the possibility that in a particular case the rights and interests may be so extensive as to be in the nature of a proprietary interest in land’: ibid [97]. See also U Secher, ‘Native Title – An Exception to Indefeasibility and a Ground for Invoking the Deferred Indefeasibility Theory’ (2000) 7 James Cook University Law Review 17, 49–57. 272   Van der Peet (n 8) [39]. 273  ibid. 274  ibid. 275   ibid quoting Brennan J in Mabo (n 3) 51. 276   ibid [40] quoting Brennan J in Mabo (n 3) 58. 277   ibid quoting Brennan J in Mabo (n 3) 58. 278   See also above text to n 135 (Hall J acknowledging that the Nisga’a were sovereign and independent before Britain’s acquisition of sovereignty in Calder). 279   Van der Peet (n 8) [40]. 280   ibid [38]. Note that the ‘relevant differences’ referred to no longer apply.

392  Canada basis of Aboriginal title in Mabo was, therefore, endorsed by Lamer CJ. This common law/Aboriginal laws/customs relationship was itself, however, the outcome of the Mabo Court’s re-examination of the consequences of the acquisition of sovereignty over Australia in light of the fact that Australia was not ‘desert uninhabited’ (factually or legally) when it became a settled colony.281 It was seen in chapter three that by recognising a new class of settled colony at common law for reception purposes – an inhabited settled colony – the High Court replaced the three formerly distinct doctrines of reception, continuity and recognition with a modified doctrine of reception. Pursuant to this modified doctrine of reception, settlement conferred a radical title on the Crown and pre-existing property rights were accommodated within Australian land law as a result of the doctrine of tenure ad veritatem (with radical title as its postulate) and the ‘continuity’ limb of the doctrine of continuity pro-tempore (which presumed that pre-existing property rights continued post-sovereignty until validly extinguished).282 Implicit in Lamer CJ’s endorsement of the relationship between the Crown’s radical title and the basis of Aboriginal title in Mabo is an acceptance of the rationale under­ lying the existence of that relationship. This is supported by express acknowledgment that Canadian courts have recognised the principle expressed by Brennan J in Mabo that ‘an inhabited territory which became a settled colony was no more a legal desert than it was “desert uninhabited”’.283 It is also supported by the fact that Van der Peet involved a claim to an Aboriginal right in British Columbia: a settled colony. If the conventional classification of a settled colony had been maintained for reception purposes, the colony would have been regarded as legally uninhabited and the feudal doctrine of tenure and associated dual-fiction of original Crown ownership and original Crown grant would have been received. This would have left no room for any concept of pre-existing customary law or prior occupation of land – whether in the context of Aboriginal rights or Aboriginal title. Lamer CJ’s judgment in Van der Peet is, therefore, not only consistent with the principles which had emerged from the pre-Delgamuukw Aboriginal title jurisprudence but it explained and elaborated upon them – in particular, clarifying how the relationship between the common law and pre-existing Aboriginal laws/customs (recognised in Roberts, Guerin, Baker Lake and by Hall in Calder) is the source of Aboriginal title. By accepting the rationale underlying the existence of the radical title/Aboriginal laws/customs relationship, Lamer CJ addressed the reality of the consequences of the acquisition of sovereignty over territory occupied by Aboriginal people for the body of law that applied in the newly acquired territory. Because the conventional doctrine of reception in its application to land law could not apply in an inhabited settled colony, a modified doctrine of reception, which included the interrelated doctrines of tenure ad veritatem (with radical title as its postulate) and continuity pro-tempore, applied. This is consistent with the doctrinal underpinnings for the doctrine of Aboriginal customary title. It was against this background, that the Supreme Court of Canada delivered its decision in Delgamuukw.

281   Lamer CJ referred specifically to Brennan J’s reference in Mabo to ‘an inhabited territory which became a settled colony was no more a legal desert than it was “desert uninhabited” in fact’: ibid [40]. 282   See ch 3 text to nn 4ff, 191ff. 283   Van der Peet (n 8) [265] (McLachlin J). See also ibid [266]–[267] referring to the courts in Calder, Guerin, Johnson and Sparrow (n 266).



Tenure, Radical Title and Aboriginal Land Rights 393

D  Delgamuukw and Beyond i  Delgamuukw The decision in Delgamuukw has widely been regarded as clarifying the source, content and proof of Aboriginal title in Canadian law. But did it? It will be seen that there are a number of problems with the decision, including inconsistencies both inherent in the judgment per se and with previous Canadian case law. Indeed, 15 years after the decision no court order has found any land to be subject to Aboriginal title in Canada.284 There was also no declaration of title made in Delgamuukw: since the Supreme Court found that the treatment of oral history evidence and defects in the pleadings necessitated a new trial, the judgment regarding source, content and proof of Aboriginal title is all obiter dicta. The decision is, however, clearly authoritative and was accepted as the law on the subject in R v Marshall; R v Bernard.285 Nonetheless, that Delgamuukw did not resolve all of the issues it had been thought to, is clear from the fact that it was possible for the leading judgment in Marshall/Bernard to emphasise the common law perspective in establishing Aboriginal title while other members of the majority emphasised the Aboriginal perspective.286 It will be seen that in some respects the decision in Delgamuukw represents a step backwards for Aboriginal title jurisprudence, but at the same time it provides a way forward to a coherent transnational doctrine pursuant to which the interrelationship between the source, content and proof of Aboriginal title is organic. The original Delgamuukw action involved a claim by numerous Gitksan and Wet’suwet’en ‘Hereditary Chiefs’ (individually or on behalf of their ‘Houses’) to ‘ownership’ and ‘jurisdiction’ over specific portions of 58,000 square kilometers of land in British Columbia or, alternatively, that they had unspecified Aboriginal rights to use the land. As the case progressed through the provincial courts, the initial claim was transformed into two communal claims by the Gitksan and Wet’suwet’en nations for Aboriginal title and self-government. These claims were rejected by the trial judge and majority of the British Columbia Court of Appeal.287 On appeal to the Supreme Court of Canada, the claim was primarily one for Aboriginal title to land.288 Writing for the majority, Lamer CJ289 made it clear that the critical concern regarding the source and proof of Aboriginal title is a single variable: occupation of land. Not only is the source of Aboriginal title the ‘prior occupation of Canada by aboriginal peoples’,290 but in order to prove Aboriginal title the lands must have been occupied ‘at the time at which the Crown asserted sovereignty’.291 It has been noted that basing Aboriginal title upon occupation of land at the date the Crown asserted sovereignty reveals a fundamental and 284   cf Tsilhqot’in Nation v British Columbia 2007 BCSC 1700, [2008] 1 CNLR 112 (obiter opinion that land subject to Aboriginal title) discussed below text to n 519ff. 285   Above n 6. 286   See also Tsilhqot’in Nation (n 284) which, despite being another example of obiter dicta statements, also emphasises the Aboriginal perspective. 287   Delgamuukw v British Columbia (1991) 79 DLR (4th) 185 (BCSC); DelgamuukwCA (n 149). 288   Delgamuukw (n 2) [7] (Lamer CJ for the majority). 289   Cory and Major JJ concurring. 290   Delgamuukw (n 2) [114]. 291   ibid [144]. The emphasis on occupation at the date of sovereignty is inconsistent with Lamer CJ’s specific requirement in his test for proof of Aboriginal title: that ‘the land must have been occupied prior to sovereignty’ (emphasis added): ibid [143]. See also Lamer CJ’s heading immediately before ibid [144].

394  Canada logical inconsistency with a title pre-dating Crown sovereignty.292 Indeed, it will be seen that despite clear pre-Delgamuukw authority recognising Aboriginal title as a pre-existing right when the Crown acquired sovereignty, Lamer CJ’s judgment indicates that it only arose at sovereignty; at best, it vacillates between the two views. Having determined that ‘prior occupation’ is the source of Aboriginal title, Lamer CJ explained that this prior occupation ‘is relevant in two different ways, both of which illustrate the sui generis nature of aboriginal title’.293 First, the ‘physical fact of occupation’ is relevant to ‘the common law principle that occupation is proof of possession in law’.294 Secondly, Aboriginal title ‘arises from possession before the assertion of British sovereignty, whereas normal estates, like fee simple, arise afterward’.295 The prior occupation source thus emphasises post-sovereignty common law rules for establishing title to land296 and that Aboriginal title is not derived from Crown grant; there is no reference to pre-sovereignty systems of Aboriginal laws/customs pursuant to which land was occupied. Crucially, since Aboriginal title could only exist as a legal right before Crown sovereignty if it were based upon some Aboriginal system,297 this indicates that the exist­ ence of Aboriginal title (as opposed to occupation of land which may or may not amount to Aboriginal title) only arose at sovereignty under the prior occupation source. The reality that Aboriginal title is necessarily based in Aboriginal systems pre-dating Crown sovereignty is disregarded. This interpretation is confirmed by Lamer CJ’s own observations regarding Aboriginal possession before sovereignty. He distinguished the proposition affirmed in Guerin and Roberts, that ‘aboriginal title pre-dated colonization by the British and survived British claims of sovereignty’, as suggesting ‘a second source for aboriginal title – the relationship between common law and pre-existing systems of aboriginal law’ (emphasis added).298 It is the suggested second source that recognises pre-existing Aboriginal title.299 While pre-sovereignty Aboriginal occupation of land is common to both sources of Aboriginal title, according to Lamer CJ’s analysis the sources are mutually exclusive: the existence of Aboriginal title arising at sovereignty and pre-dating sovereignty under the prior occupation source and common law/pre-existing Aboriginal law relationship source respectively. Apparently realising the inherent contradiction in the source of Aboriginal title he had adopted, Lamer CJ subsequently conflated the two sources in the context of proof of Aboriginal title. When justifying the requirement that land must have been occupied at the time the Crown asserted sovereignty in order to prove Aboriginal title, he stated that ‘from a theoretical standpoint, aboriginal title arises out of prior occupation of the land by aboriginal peoples and out of the relationship between the common law and preexisting systems of aboriginal law’ (emphasis added).300 While this appeared to be an   See above text to n 66.   Delgamuukw (n 2) [114]. 294   ibid citing McNeil (n 14) 7 and referring to Dickson J’s description of Aboriginal title in Guerin (n 231) 376 as a ‘legal right derived from the Indians’ historic occupation and possession of their tribal lands’. 295   Delgamuukw (n 2) [114] citing McNeil (n 66) 144. 296   See also K McNeil, ‘Aboriginal Title and the Supreme Court: What’s Happening?’ (2006) 69 Saskatchewan Law Review 281, 297. 297   McNeil (n 66) 137. 298   Delgamuukw (n 2) [114]. See also ch 7 text to n 248; J Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto, University of Toronto Press, 2002) 12. 299   cf McNeil, ‘Aboriginal Title and the Supreme Court’ (n 296) 287. 300   Delgamuukw (n 2) [145]. 292 293



Tenure, Radical Title and Aboriginal Land Rights 395

acknowledgment that Aboriginal title pre-dated sovereignty, this conclusion was denied by the reasoning which followed. Starting from the premise that ‘Aboriginal title is a burden on the Crown’s underlying title’ which ‘the Crown did not gain . . . until it asserted sovereignty’, Lamer CJ concluded that ‘[b]ecause it does not make sense to speak of a burden on the [Crown’s] underlying title before that title existed, aboriginal title crystallized at the time sovereignty was asserted’ (emphasis added).301 The conclusion that Aboriginal title came into existence at sovereignty is also supported by Lamer CJ’s further justification for sovereignty being the appropriate time for establishing Aboriginal occupation of land. Because the act of occupation is, at common law, sufficient to ground Aboriginal title, it is unnecessary to prove that the land was occupied pursuant to any pre-sovereignty Aboriginal system.302 On the other hand, in the context of proof of occupancy and exclusivity of occupancy Lamer CJ repeated his conflated reference to the two sources of Aboriginal title and concluded that both the common law and the Aboriginal perspective on land should be taken into account.303 It is difficult to reconcile how an approach to proof of occupancy (and its exclusivity) which considers both the common law and Aboriginal perspective can be justified on the basis of an admixture of the two mutually exclusive sources of Aboriginal title the Chief Justice identified. Indeed, Lamer CJ acknowledged that the ‘debate over the proof of occupancy reflects two divergent views of the source of aboriginal title’:304 the common law approach arising from the ‘physical reality’ of occupation at sovereignty ‘established in a variety of ways, ranging from the construction of dwellings through cultivation and enclosure of fields to regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources’305 and the position that Aboriginal title at common law ‘arises from and should reflect the pattern of land holdings under aboriginal law’.306  ibid.   ibid: ‘Under common law, the act of occupation or possession is sufficient to ground aboriginal title and it is not necessary to prove that the land was a distinctive or integral part of the aboriginal society before the arrival of Europeans’. 303  ibid [147], [156]. Note that the use of the word ‘perspective’ in this context is arguably inappropriate because what is acknowledged is not merely matters of opinion but systems of knowledge and understanding which include law and governance: P Monture-Angus, Journeying Forward: Dreaming First Nations’ Independence (Halifax, Fernwood Publishing, 1999) 22. 304   Delgamuukw (n 2) [147]. 305   ibid [147], [149]. 306   ibid [147]. See also the approach of La Forest J (who delivered the reasons of L’Heureus-Dube J and himself with which McLachlin J substantially agreed). Although agreeing with Lamer CJ’s conclusion, La Forest J expressly disagreed ‘with various aspects of [Lamer CJ’s] reasons and in particular, with the methodology he use[d] to prove that aboriginal peoples have a general right of occupation of certain lands (often referred to as “aboriginal title”)’: ibid [187]. For La Forest J, it followed from Calder, Guerin and Van der Peet that ‘“aboriginal title” is based on the continued occupation and use of the land as part of the aboriginal peoples’ traditional way of life’: ibid [190]. While Aboriginal title clearly pre-dated sovereignty, ‘it is not necessary for courts to have conclusive evidence of pre-sovereignty occupation. Rather, aboriginal peoples claiming a right of possession may provide evidence of present occupation as proof of prior occupation’: ibid [198]. La Forest J emphasised that ‘when dealing with a claim of “aboriginal title”, the court will focus on the occupation and use of the land as part of the aboriginal society’s traditional way of life. In pragmatic terms, this means looking at the manner in which the society used the land to live, namely to establish villages, to work, to get to work, to hunt, to travel to hunting grounds, to fish, to get to fishing pools, to conduct religious rites, etc’: ibid [194]. Indeed, occupancy was regarded as ‘part of aboriginal culture in a broad sense and is, therefore, absorbed in the notion of distinctiveness. To use the language of Van der Peet, proof of occupancy is proof of centrality’: ibid [199]. Accordingly, ‘aboriginal occupancy refers not only to the presence of aboriginal peoples in villages or permanently settled areas. Rather, the use of adjacent lands and even remote territories to pursue a traditional mode of life is also related to the notion of occupancy’: ibid. The Aboriginal perspective was also emphasised in the 301 302

396  Canada Crucially, the requirement to prove occupation at sovereignty in order to establish Aboriginal title is itself the result of Lamer CJ adopting prior occupation as the source of Aboriginal title as opposed to the relationship between common law and pre-existing systems of Aboriginal law. And while he cited Baker Lake as authority for taking both the common law and Aboriginal perspectives into account in establishing proof of occupancy,307 it has been seen that in Baker Lake occupation of land and Aboriginal systems of laws/customs were interrelated requirements in establishing proof of title (not proof of occupancy per se). The purported combination of sources represents a retreat from the pre-Delgamuukw jurisprudence regarding proof of Aboriginal title. It has been seen that the Supreme Court of Canada’s decision in Guerin – one of the cases Lamer CJ cited as supporting the suggested second source – clearly regarded Aboriginal title as based upon pre-sovereignty Aboriginal occupation of land pursuant to a system of laws/customs by which land was used in a meaningful way from the Aboriginal perspective (‘purposive occupation’).308 Furthermore, pre-Guerin case law – including Baker Lake – established that evidence (even if only meagre or admitted) of the existence of laws/customs pursuant to which land was purposively occupied was the threshold question; not evidence of simple occupation per se.309 Moreover, Guerin affirmed that there is a presumption that Aboriginal people had title to land pursuant to their own systems of laws/customs before Crown sovereignty and that this title continued post-sovereignty. By conflating the two sources of Aboriginal title for the purpose of proof of occupancy, Lamer CJ de-emphasised the pre-Delgamuukw approach to proof of title based on Aboriginal laws/customs, including the presumption of Aboriginal title pursuant to such Aboriginal customs/laws. Moreover, he signalled a return to the redundant ‘scale of social organisation’ mind-set.310 Noting that ‘the aboriginal perspective on the occupation of their lands can be gleaned, in part, but not exclusively, from their traditional laws’,311 he said if, at the time of sovereignty, an aboriginal society had laws in relation to land, those laws would be relevant to establishing the occupation of lands which are the subject of a claim for aboriginal title. Relevant laws might include, but are not limited to, a land tenure system or laws governing land use.312 (emphasis added)

Disturbingly, unlike the old presumption that Aboriginal inhabitants had no society and thus no laws, Lamer CJ’s suggestion is more inconceivable: that an Aboriginal society in occupation of land did not have a system relating to their utilisation of the land.313 context of proving exclusivity: ‘exclusivity means that an aboriginal group must show that a claimed territory is indeed its ancestral territory and not the territory of an unconnected aboriginal society’: ibid [196]. La Forest J’s approach is consistent with the pre-Delgamuukw authorities which regarded Aboriginal title as based upon pre-sovereignty Aboriginal occupation of land pursuant to a system of laws/customs by which land was used in a meaningful way from the Aboriginal perspective. 307   Delgamuukw (n 2) [147]. 308   See ch 7 text to n 252. 309   See above text to nn 216–27. In any event, in Baker Lake Mahoney J emphasised that Aboriginal title has its origins in Aboriginal customary laws: above n 221. 310   cf Young (n 160) 150–51. 311   Delgamuukw (n 2) [148] referring to his judgment in Van der Peet. 312  ibid. 313   It is suggested that Lamer CJ’s judgment does not contain the same emphasis on pre-existing societies as the pre-Delgamuukw case law on Aboriginal title or Lamer CJ’s own judgment in Van der Peet regarding Aboriginal rights, for the very reason that these cases made it clear that such societies occupied land pursuant



Tenure, Radical Title and Aboriginal Land Rights 397

His notable exclusion of any reference to ‘customs’ and/or ‘traditions’ but only ‘laws’ also suggests a restrictive approach to the Aboriginal perspective in the context of Aboriginal title.314 Aboriginal title is, however, a sub-category of Aboriginal rights315 and as Lamer CJ explained in Van der Peet Aboriginal rights are based in traditional ‘laws and customs’ because they are based in the ‘pre-existing societies’ of Aboriginal peoples.316 Moreover, in Delgamuukw, he confirmed that the requirement to prove that an Aboriginal practice, custom or tradition was ‘a central and significant part of the society’s culture’317 (which remained a crucial part of the test for Aboriginal rights) also operated in the ‘determination of the proof of aboriginal title’.318 Nevertheless, from the premise that ‘it would seem clear that any land that was occupied pre-sovereignty, and which the parties have maintained a substantial connection with since then, is sufficiently important to be of central significance to the culture of the claimants’,319 he concluded that it was ‘[unnecessary] to include explicitly this element as part of the test for aboriginal title’ (emphasis added).320 This aspect of Lamer CJ’s decision – impliedly requiring the ‘integral to the distinctive culture’ test for proof of Aboriginal title – is, at best, ambiguous. It is suggested that it is inherently incongruous with his express requirement to include the common law perspective in addition to the Aboriginal perspective in proving occupancy. While Lamer CJ states that ‘given the occupancy requirement in the test for aboriginal title, [he] cannot imagine a situation where [the ‘integral to the distinctive culture’ requirement] would actually serve to limit or preclude a title claim’,321 the fact is that proof of Aboriginal title had evolved to the detriment of the Aboriginal perspective: from evidence of the existence of Aboriginal laws/customs pursuant to which occupation of land was part of a system whereby land was utilised in a meaningful way (from the Aboriginal perspective) to evidence that the common law concept of occupation has been satisfied by taking into account the common law perspective and the Aboriginal to a system of Aboriginal laws/customs. Indeed, the territory in dispute was in British Columbia where Aboriginal societies clearly had a social and political organisation: McNeil, ‘Native Rights Case Law’ (n 22) 166–67. 314   Indeed he states that in Van der Peet he ‘held that the aboriginal perspective on the occupation of their lands can be gleaned, in part, but not exclusively, from their traditional laws, because those laws were elements of the practices, customs and traditions of aboriginal peoples’: Delgamuukw (n 2) [148]. 315  In Delgamuukw this was articulated by saying that ‘aboriginal rights . . . fall along a spectrum with respect to their degree of connection with the land. At the one end, there are those aboriginal rights which are practices, customs and traditions that are integral to the distinctive aboriginal culture of the group claiming the right. However, the “occupation and use of the land” where the activity is taking place is not “sufficient to support a claim of title to the land” . . . In the middle, there are activities which, out of necessity, take place on land and indeed, might be intimately related to a particular piece of land. Although an aboriginal group may not be able to demonstrate title to the land, it may nevertheless have a site-specific right to engage in a particular activity. . . . At the other end of the spectrum, there is aboriginal title itself. As Adams makes clear, aboriginal title confers more than the right to engage in site-specific activities which are aspects of the practices, customs and traditions of distinctive aboriginal cultures. Site-specific rights can be made out even if title cannot. What aboriginal title confers is the right to the land itself’: ibid [138]. 316   Van der Peet (n 8) [40]. 317   That it ‘made the culture of that society distinctive . . . [that] it was one of the things which truly made the society what it was’: Delgamuukw (n 2) [150] quoting Van der Peet (n 8) [55]. 318   Delgamuukw (n 2) [150]. He also said ‘that a claim to title is made out when a group can demonstrate “that their connection with the piece of land . . . was of central significance to their distinctive culture”’: ibid quoting his judgment in Adams (n 265) [26]. 319   Delgamuukw (n 2) [151]. 320  ibid. 321  ibid.

398  Canada perspective (if the relevant Aboriginal society had laws in relation to land). It appears that Lamer CJ focused on the concept of occupation at common law to ensure there was room for the established doctrine of Aboriginal activity rights:322 indeed, in the course of discussing the spectrum of Aboriginal rights, he observed: ‘[a]lthough an aboriginal group may not be able to demonstrate title to the land, it may nevertheless have a sitespecific right to engage in a particular activity’.323 The implicit operation of the ‘integral to the distinctive culture’ test in the determination of proof of Aboriginal title would, however, dissolve the distinction between rights and title. Crucially, Lamer CJ’s description of the content of Aboriginal title reveals this fundamental dilemma and confirms that the common law perspective on occupation distinguishes title from rights. It is clear that Aboriginal people may establish an Aboriginal right to hunt or Aboriginal cultural rights by demonstrating that the practice, custom or tradition of hunting or engaging in cultural activities was integral to their distinctive culture.324 It is also clear that ‘one of the critical elements in the determination of whether a particular aboriginal group has aboriginal title to certain lands is the matter of the occupancy of those lands’.325 When developing an inherent limit on the content of Aboriginal title that prevents the land from being used in ways that are incompatible with the Aboriginal relationship to the land on which the title is based,326 Lamer CJ explained that since ‘[o]ccupancy is determined by reference to the activities that have taken place on the land and the uses to which the land has been put by the particular group’,327 where ‘lands are so occupied, there will exist a special bond between the group and the land in question such that the land will be part of the definition of the group’s distinctive culture’.328 And these elements of Aboriginal title created the inherent limitation on the uses of the land: For example, if occupation is established with reference to the use of the land as a hunting ground, then the group that successfully claims aboriginal title to that land may not use it in such a fashion as to destroy its value for such a use (e.g., by strip mining it). Similarly, if a group claims a special bond with the land because of its ceremonial or cultural significance, it may not use the land in such a way as to destroy that relationship (e.g., by developing it in such a way that the bond is destroyed, perhaps by turning it into a parking lot).329

Since use of land for hunting can establish an Aboriginal right to hunt as well as Aboriginal title to the relevant land on the basis of an Aboriginal group’s ‘distinctive culture’, what is the overriding consideration that prevents proof of the right from establishing proof of title? Lamer CJ answered this question in the following way: This difference between aboriginal rights to engage in particular activities and aboriginal title requires that the test I laid down in Van der Peet be adapted accordingly. I anticipated this possibility in Van der Peet itself, where I stated that . . .: 322   See also JJL Hunter, ‘Disappointed Expectations: Why Delgamuukw Has Failed to Achieve Results on the Ground’ in M Morellato (ed), Aboriginal Law Since Delgamuukw (Aurora, Ont, Canada Law Book, 2009) 17, 27. 323   Delgamuukw (n 2) [138]. 324   McNeil (n 22) 170–72. 325   Delgamuukw (n 2) [128]. 326   ibid [125]–[132]. See also below text to nn 379–83. 327   ibid [128]. 328  ibid. 329  ibid.



Tenure, Radical Title and Aboriginal Land Rights 399 Aboriginal rights arise from the prior occupation of land, but they also arise from the prior social organization and distinctive cultures of aboriginal peoples on that land. . . . Since the purpose of s. 35(1) is to reconcile the prior presence of aboriginal peoples in North America with the assertion of Crown sovereignty, it is clear from this statement that s. 35(1) must recognize and affirm both aspects of that prior presence – first, the occupation of land, and second, the prior social organization and distinctive cultures of aboriginal peoples on that land. To date the jurisprudence under s. 35(1) has given more emphasis to the second aspect. . . . The adaptation of the test laid down in Van der Peet to suit claims to title must be understood as the recognition of the first aspect of that prior presence [namely, occupation of land].330

Thus, although the tests for identifying Aboriginal rights and Aboriginal title share broad similarities, the major distinction is that ‘under the test for aboriginal title, the requirement that the land be integral to the distinctive culture of the claimants is subsumed by the requirement of occupancy’.331 Since Lamer CJ made it clear that the test for occupancy was to be determined by taking the common law perspective into account in and, if there were any Aboriginal laws relating to land, the Aboriginal perspective, occupancy as determined by the common law was the decisive factor in establishing title.332 Paradoxically, however, Lamer CJ relied solely on the Aboriginal perspective under the ‘integral to the distinctive culture’ test to create the inherent limit on the content of that title. The paradox is highlighted by the fact that the content of Aboriginal title – apart from the inherent limit – was identified as independent of the evidentiary record: as a matter of law to be the right to exclusive use and occupation of land which was occupied at sovereignty.333 In addition to representing a retreat from pre-Delgamuukw jurisprudence regarding proof of title, and perhaps more importantly, Lamer CJ’s judgment represents a retreat from pre-Delgamuukw acknowledgment of the reality of the consequences of the acquisition of sovereignty over inhabited territory classified as settled for the body of law that applied in the territory (including Lamer CJ’s own judgment in Van der Peet). The preDelgamuukw authorities clearly recognised that pre-existing Aboriginal title continued post-sovereignty because the title to land which the Crown acquired upon acquisition of sovereignty over settled yet inhabited territory was a mere radical title (a bare legal title) rather than absolute ownership. Thus, while Aboriginal title has its origins in Aboriginal laws/customs which existed before Crown sovereignty, it was accommodated within the post-sovereignty legal regime because the Crown’s common law title to land and the concomitant doctrine of tenure were different from these concepts under feudal theory.334   ibid [141]–[142].   ibid [142]. Whereas the time for the identification of Aboriginal rights is the time of first contact, the time for the identification of Aboriginal title is the time at which the Crown asserted sovereignty over the land. 332   That is, if there are no relevant Aboriginal laws, the common law perspective prevails; and even if there are relevant Aboriginal laws, because the ‘integral to the distinctive’ test is subsumed by the occupancy requirement which takes both the common law and Aboriginal law into account, the common law will always be the decisive factor. 333   cf the reasons of La Forest and L’Heureux-Dube JJ (delivered by La Forest J and with whom McLachlin J was in substantial agreement) who described Aboriginal title as ‘a general right of occupation of certain lands’ (Delgamuukw (n 2) [187]) and an ‘aboriginal right of occupancy’ (ibid [191]). It appears that Lamer CJ started with the proposition that the content of Aboriginal title is exclusive use and occupation to fit in with the Aboriginal rights doctrine (non-exclusive use and occupation) and then worked backwards to conclude that proof of Aboriginal title required exclusive occupation as common law title does. Thus, although the ‘integral to the distinctive culture’ test is taken into account, it had to be subsumed under the occupancy requirement so that the common law perspective on occupation prevailed. 334  See Baker Lake, Re Paulette, Calder. 330 331

400  Canada Despite the weight of pre-Delgamuukw authority supporting the proposition that the Crown’s radical title to land is a mere notional title, a right to confer and acquire title but not title itself – including Lamer CJ’s own judgment in Van der Peet – the feudal assumption that along with sovereignty the Crown in Canada acquired ownership of all lands re-emerged in Lamer CJ’s judgment. Not only was the radical (or underlying) title to land which the Crown acquired upon assumption of sovereignty equated with ownership except to the extent that it was burdened by Aboriginal title at common law,335 but under section 109 of the Constitution Act 1867 it was equated with absolute ownership which was only qualified to the extent that the statutory provision made it subject to Aboriginal title.336 The re-emergence of the feudal assumption in Delgamuukw commenced with the trial judge’s definition of the term ‘ownership’. Noting the plaintiffs’ admission that ‘the underlying title to the soil of the territory is in the Crown’, McEachern CJ said that ‘[t]his is sometimes called the allodial, underlying or radical title of the Crown’ (emphasis added).337 While the expressions ‘underlying’ and ‘radical’ have been used interchangeably since the Star Chrome case, the expression ‘allodial’ was added by McEachern CJ without citing the original source for its inclusion. It is, nevertheless, clear that the expression ‘allodial’ has been used to connote the Crown’s original absolute ownership of all land under the feudal doctrine of tenure.338 While the majority of the British Columbia Court of Appeal in Delgamuukw v British Columbia339 initially appeared to adopt the trial judge’s use of the expression ‘allodial’ as interchangeable with ‘radical title’ and ‘underlying title’,340 their subsequent references to the Crown’s ‘underlying’ and ‘radical’ title made it clear that they regarded it as a bare legal title to land rather than as conferring automatic beneficial ownership. Explaining that ‘[a]t the date of the assertion of sovereignty the underlying title to the lands in the Colony vested in the Crown . . . [and] was burdened with aboriginal rights’,341 Macfarlane JA (for the majority) endorsed Brennan J’s summation of the situation as author of the principal judgment in Mabo. This included Brennan J’s reasoning immediately preceding the proposition (which Lamer J had acknowledged in Van der Peet) that ‘[i]t is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty’: Recognition of the radical title of the Crown is quite consistent with recognition of native title to land, for the radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory). Unless the sovereign power is exercised in one or other of those ways, there is no reason why   Delgamuukw (n 2) [145].   ibid [145] (common law), [175] (statutory). 337   Delgamuukw v British Columbia (n 287) 209. See also ibid 242, 282. 338   2 Bl Comm 105: ‘This allodial property no subject in England has; it being a received, and now undeniable, principle in the law, that all the lands in England are holden mediately or immediately of the king. The king therefore only hath absolutum et directum dominium’. 339   Above n 149. 340   DelgamuukwCA (n 149) 485 (Macfarlane J, Taggart JA concurring), see also Wallace JA who agreed with Macfarlane JA’s reasons and conclusions (ibid 549) and referred to the ‘underlying radical title of the Crown’: ibid 591. 341   ibid 493. 335 336



Tenure, Radical Title and Aboriginal Land Rights 401 land within the Crown’s territory should not continue to be subject to native title.342 (emphasis added)

This is crucial: Macfarlane JA endorsed both the Crown’s radical title as a right to confer and acquire title, but not title itself,343 and Brennan J’s redefinition of the feudal doctrine of tenure: the doctrine of tenure ad veritatem (with radical title as its postulate). It was seen in chapter three that the doctrine of tenure ad veritatem ‘applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant’.344 And Macfarlane JA expressly acknowledged this limited role of the doctrine of tenure in Canada by confirming that Aboriginal title does ‘not depend on a grant from the Crown’.345 Since land is only brought within the regime governed by the doctrine of tenure ad veritatem when the Crown ‘has exercised its sovereign power’ to grant an interest in land, the two-fold feudal fiction of original Crown ownership of all land and original Crown grant no longer applies. The fiction of original Crown grant has been rendered otiose and the fiction of original Crown ownership has been replaced with the ‘fiction of original Crown ownership of land which has actually been granted by the Crown’. Another aspect of Brennan J’s summation of the consequences of the Crown’s acquisition of sovereignty and radical title which received Macfarlane JA’s approval was that: 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 title 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.346 (emphasis added)

It has been seen that Brennan J’s conclusion on the effect of a change in sovereignty on pre-existing land rights in Australia effectively reconciled the two formerly distinct doctrines of continuity and recognition and replaced them with a singular doctrine: ‘continuity pro-tempore’.347 The doctrine of continuity pro-tempore has two limbs: the continuity limb and the recognition limb. Under the former, there is a presumption that pre-existing property rights survive a change in sovereignty; under the latter, the sovereign has power   ibid quoting Mabo (n 3) 50–51.   See also Lambert JA’s dissenting judgment which referred to ‘allodial’, ‘in fee’ and ‘root’ title as interchangeable with ‘radical title’: ibid 674–75. In the context of a statutory declaration ‘that all lands in British Columbia and all mines and minerals, not otherwise lawfully appropriated, belonged to the Crown in fee’, Lambert JA made it clear that the Crown’s title conferred a general power of alienation, not beneficial ownership: ‘The title remains an allodial title and its nature was not changed by the imposition of a statutory scheme, though for the purposes of administration of the statutory scheme the Crown may be said to hold land in fee simple. The concept in English common law that Sovereignty may carry with it the root title may not have been well understood, and the concept of fee simple title may have been much better understood in British Columbia at the relevant times. So it was provided by the Proclamation, and the Ordinance, that the Crown held the land “in fee simple” meaning without restraint on alienation, and with a power to make grants in accordance with the legislation, and meaning that no one in British Columbia could in future acquire any rights in land in British Columbia without complying with the statute’: ibid. Moreover, Lambert JA suggested that: ‘If aboriginal title is a burden on the radical title of the Sovereign, and if the radical title is acquired on the assertion of Sovereignty, then there is nothing in the taking of fee simple title by the Crown which would free either the radical title or the subordinate fee simple estate from the burden constituted by the aboriginal title’: ibid 675. 344   Mabo (n 3) 48–49 (Brennan J). See ch 3 text to n 27. 345   DelgamuukwCA (n 149) 492. See also Delgamuukw v British Columbia (n 287) 286, 307 (McEachern CJ). 346   DelgamuukwCA (n 149) 493. 347   Ch 3 text to n 191. 342 343

402  Canada to unilaterally extinguish these surviving pre-existing rights (provided the power is validly exercised). Although the Crown acquired a radical title to all land upon acquisition of sovereignty, the doctrine of continuity pro-tempore allowed pre-existing property rights to continue until validly extinguished and the doctrine of tenure ad veritatem accommodated titles not derived from Crown grant within the post-sovereignty legal system. Thus, in addition to accepting the legal nature of the Crown’s radical title as articulated by Brennan J and the doctrine of tenure ad veritatem, Macfarlane JA also effectively endorsed the doctrine of continuity pro-tempore in the Canadian context.348 This interpretation is supported by four aspects of his decision. First, his approval of the ‘summary of basic principles’ regarding Canadian Aboriginal title jurisprudence in Roberts: ‘As . . . pointed out in Guerin . . . aboriginal title pre-dated colonization by the British and survived British claims of sovereignty. The Indians’ right of occupation and possession continued as a “burden on the radical or final title of the Sovereign” ’ (emphasis added).349 Secondly, his affirmation of the principle ‘that the interest of aboriginal peoples in or in respect of land could, prior to 1982, be extinguished by a clear exercise of constitutionally valid sovereign power. This could be done without the consent of the Indians’ (emphasis added).350 Thirdly, and despite holding that ‘proof of presence amounting to occupation is a threshold question’,351 his requirement for the existence of pre-sovereignty Aboriginal traditions (which were integral to the Aboriginal society’s distinctive culture) for the common law to give effect to post-sovereignty.352 Fourthly, the absence of any other legal explanation by Macfarlane JA for how pre-existing Aboriginal title continued after Crown sovereignty as well as how it was accommodated within the post-sovereignty legal regime. It has been seen that the restatement of the common law by the Mabo High Court was only possible because it recognised a new class of settled colony – an inhabited settled colony. This meant that the Mabo Court preserved the distinction between settled colonies and conquered/ceded colonies for the purpose of ascertaining the general law that is to govern a new colony; only in the context of an inhabited settled colony was the doctrine of reception modified in its application to land law. It will be recalled that in the case of conquered or ceded colonies, pre-existing laws continued unless and until they were altered by the acquiring sovereign: the doctrine of continuity pro-tempore applied not only to land rights but to all legal rights.353 On the other hand, application of the modified doctrine of reception in an inhabited settled colony limited the doctrine of continuity pro-tempore to land rights. That is, application of the modified doctrine of reception (which included the continuity pro-tempore doctrine) meant that, like other settled colonies, the common law of England applied as far as applicable but, unlike 348   See also the dissenting judgment of Lambert JA in DelgamuukwCA (n 149) 643: ‘In my opinion the area in central British Columbia claimed in this case was no more terra nullius when the first colonizers arrived in that part of British Columbia than the Murray Islands were when the first colonizers arrived there’. cf his comments ibid 642. 349   ibid 493. See also the dissenting judgment of Lambert JA who cites Guerin as authority for the ‘continuation of indigenous practices, customs and traditions, following British occupation, colonization and settlement’: ibid 641. 350   ibid 521. 351   ibid 492. 352  ibid. 353   It has been shown that the limitations on the Crown’s prerogative powers relating to land in conquered/ ceded colonies mean that the effect of the doctrine of continuity pro-tempore in such colonies is the same as the conventional doctrine of continuity: ch 3 text to nn 212, 245, text in para preceding n 334.



Tenure, Radical Title and Aboriginal Land Rights 403

other settlements, English common law principles relating to land did not necessarily or immediately apply – in particular, because the Crown acquired only a radical title to land in the colony rather than absolute beneficial ownership thereof, the English feudal doctrine of tenure was inapplicable; the common law regime governing the doctrine of tenure (ad veritatem) was only brought into play when the Crown granted an interest in land. Since the territory in question in DelgamuukwCA (and Roberts and Guerin) was located in British Columbia – a settled colony – it appears that Macfarlane JA necessarily adopted the Mabo Court’s approach regarding the constitutional status of a settled yet inhabited colony and concomitant body of applicable law. This inference is also consistent with the judgment of Wallace JA who, despite agreeing with the reasons and conclusions of Macfarlane JA, considered it appropriate to set out his own reasons because he approached the issues from a different perspective and attached greater significance to certain factors.354 For Wallace JA, ‘the settled-conquered distinction’ was a ‘fundamental premise’ of the British Columbian legal system355 and ‘[t]he fact that British Columbia was acquired as a settled colony ha[d] important implications for the introduction of English common law in British Columbia’.356 Referring to Brennan J’s observation in Mabo that upon acquisition of Crown sovereignty Australian Aboriginals ‘became British subjects owing allegiance to the Imperial Sovereign’,357 Wallace JA said that upon acquisition of Crown sovereignty in British Columbia, the introduction of English common law ‘superseded any indigenous system of laws’.358 Crucially, however, ‘[t]he common law was introduced subject to qualification by the dictates of local circumstances’.359 As a result, the Canadian courts have ‘adjusted’ the common law to recognise that the acquisition of sovereignty by the British Crown did not, in itself, extinguish the right of the Aboriginal people to continue their traditional customs, practices and use of the tribal land in a manner integral to that indigenous way of life.360

Furthermore, the adjusted common law ‘recognized the historical aboriginal presence and title and served to protect aboriginal customs and practices and the traditional relationship the aboriginal people had with the lands they occupied and used’.361 In this way, the ‘settled colony status brought [protection] to any indigenous people there’.362   DelgamuukwCA (n 149) 549.   ibid 570. 356   ibid 566. See also ibid 567–68. 357   ibid 568 quoting Brennan J in Mabo (n 3) 25–26. 358  ibid. 359   ibid. The example he gave was ‘in Mabo, Justices Deane and Gaudron, at p. 59, state: Where persons acting under the authority of the Crown established a new British Colony by settlement, they brought the common law with them. The common law so introduced was adjusted in accordance with the principle that, in settled colonies, only so much of it was introduced as was “reasonably applicable to the circumstances of the Colony”. This left room for the continued operation of some local laws or customs among the native people and even the incorporation of some of those laws and customs as part of the common law. The adjusted common law was binding as the domestic law of the new Colony and, except to the extent authorised by statute, was not susceptible of being overridden or negatived by the Crown by the subsequent exercise of prerogative powers. (Emphasis added.)’: ibid. 360  ibid. 361  ibid. 362   ibid 569. Although Wallace JA argued (at 568–69) that ‘Any suggestion that the inhabitants of a conquered colony were afforded better treatment than those in a settled colony because the system of law in a conquered territory was presumed to continue until altered must be examined in light of the protection which aboriginal practices and uses of land received from the adjusted common law. Furthermore, the precarious 354 355

404  Canada Wallace JA emphasised that this important protection could ‘only be understood by the application of established principle as it ha[d] been developed in past cases. It [could not] be altered and expanded by the use of such labels as the “doctrine of continuity”’.363 Application of the conventional doctrine of continuity in the settled (yet inhabited) colony of British Columbia would amount to the ‘assertion of an all encompassing aboriginal right to an exclusive social and legal system’364 which would ‘be inconsistent with, and a fundamental departure from the principle that, upon the exercise of sovereignty, the adjusted common law became the law of all subjects – native and non-native alike’.365 It would also overturn the fundamental ‘settled-conquered distinction’.366 Since Wallace JA agreed with Macfarlane JA’s reasons and conclusions, this included Macfarlane JA’s endorsement of the adjusted (or restated) common law, as developed by cases dealing with Aboriginal title, regarding the Crown’s radical title and the doctrines of tenure ad veritatem and continuity pro-tempore. Furthermore, identification of a new class of ‘inhabited settled’ colony in respect of which a modified doctrine of reception applied ensured that the distinction between settled and conquered/ceded colonies (which Wallace JA regarded as a ‘fundamental premise’ of the British Columbian legal system)367 was preserved in respect of pre-existing rights other than rights to land. Consequently, the restated (or adjusted) common law relating to land which follows from the application of the modified doctrine of reception in an inhabited settled colony is consistent with the judgments of both Macfarlane and Wallace JJA. It has also been seen that Lamer CJ subsequently endorsed this approach in Van der Peet. And this approach represents how Aboriginal customary title continued post-sovereignty and was accommodated within Australian and Canadian land law.368 In Delgamuukw, the Supreme Court of Canada was presented with the opportunity to clarify the body of law that applied when sovereignty was acquired over inhabited territory classified as settled for the purpose of the doctrine of reception. In the spirit of Wallace JA’s judgment: how did established principles of Aboriginal title jurisprudence explain the relationship between the introduced common law and pre-existing Aboriginal laws/customs? The Court did not, however, clarify the issue. Rather, it is in this context that Lamer CJ’s judgment represents a retreat from established principles developed in position of conquered people, who were exposed to the whim of the royal prerogative power, must be considered. The implications of this prerogative power were expressed in Campbell v. Hall . . .: It is left by the constitution to the King’s authority to grant or refuse a capitulation: if he refuses, and puts the inhabitants to the sword or exterminates them, all the lands belong to him. If he receives the inhabitants under his protection and grants them their property, he has a power to fix such terms and conditions as he thinks proper. He is intrusted with making the treaty of peace: he may yield up the conquest, or retain it upon what terms he pleases. These powers no man ever disputed, neither has it hitherto been controverted that the King might change part or the whole of the law or political form of government of a conquered dominion.’ 363   ibid 569. In making this observation, he reiterated the remarks of Brennan J in Mabo (n 3) 18: ‘In discharging its duty to declare the common law of Australia, this court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency’: ibid. 364  ibid. 365  ibid. 366   ibid 569–70. 367   ibid 570. 368   It has also been seen that Aboriginal customary title applies irrespective of the conceptual content of radical title and the application of the doctrines of tenure ad veritatem and continuity pro-tempore: see ch 7 text to n 342ff (‘Doctrinal Underpinnings for Aboriginal Customary Title’).



Tenure, Radical Title and Aboriginal Land Rights 405

pre-Delgamuukw Aboriginal title jurisprudence by (re)defining the legal nature of the radical (underlying) title to land which the Crown acquired upon settlement of an inhabited colony on the basis of the feudal assumption: as conferring absolute ownership of land except to the extent of Aboriginal title rather than as a bare legal title conferring no automatic entitlement to ownership of land. Furthermore, apart from stating that Aboriginal title was a burden on the Crown’s radical title, Lamer CJ offered no explanation as to how Aboriginal title was reconciled with the doctrine of tenure and accommodated within Canadian land law. He purported to simply add Aboriginal title as a qualification to accepted theory. However, pre-Delgamuukw Canadian case law has shown that this so-called qualification requires reconsideration of concepts at the heart of Canadian theory of landholding. Because Lamer CJ did not challenge (or even refer to) the classification of an inhabited colony as settled – rather than conquered or, at least, post-Mabo ‘inhabited settled’ – for reception purposes he avoided confronting the reality of the issue of the body of law that applied in such a colony. Moreover, by purporting to simply add Aboriginal title as a qualification to accepted theory, Lamer CJ’s judgment indicates that the feudal doctrine of tenure was received under the conventional doctrine of reception on the basis that the traditional settled colony classification applies to a colony which, at colonisation, is either uninhabited in fact or, despite being factually inhabited, is regarded as legally uninhabited because the inhabitants are considered ‘so low in the scale of social organisation that their usages and conceptions of rights and duties [were] not to be reconciled with the institutions or the legal ideas of a civilised society’.369 Notwithstanding judicial disapproval of the ‘scale of social organisation’ mind-set,370 this conclusion is not inconsistent with Lamer CJ’s (inconceivable) suggestion that an Aboriginal society in occupation of land did not have any system relating to the land. It is, however, clear that where a territory (such as British Columbia) was inhabited by Aboriginal people with a social and political organisation, it could not be classified as a conventional settled colony and thus legally uninhabited. Moreover, to do so would ipso facto deny the two sources of Aboriginal title Lamer CJ identified: the prior occupation of land source he adopted371 and the common law/preexisting Aboriginal law relationship source he suggested. Clarifying the law that applied when sovereignty was acquired over legally inhabited territory which was classified as settled for the purpose of the doctrine of reception is essential to any discussion of Aboriginal title. The Supreme Court’s failure to do so in Delgamuukw is disappointing and prevented the Court from explaining in any coherent manner the source, content and proof of Aboriginal title. It has also resulted in references to the Crown’s radical title in post-Delgamuukw cases being equivocal372 and/or inherently contradictory: its legal nature not identified or identified as both allodial (the basis of the feudal doctrine of tenure) and a bare title (the basis of the doctrine of tenure

369   Southern Rhodesia (n 155) 233–34. See also B Ryder, ‘Aboriginal Rights and Delgamuukw v The Queen’ (1994) 5 Constitutional Forum 43 (British claims to sovereignty based on discovery is the ‘ugly fiction’ woven into the fabric of Canadian law). 370   See ch 3 text to n 181; Young (n 160) 137 fn 88; SR Stevenson, ‘Toward a Shared Narrative of Reconciliation: Developments in Canadian Aboriginal Rights Law’ in H Lessard, R Johnson and J Webber (eds), Storied Communities: Narratives of Contact and Arrival in Constituting Political Community (Vancouver, UBC Press, 2011) 271, 274. 371   Above text to nn 290–98. 372   See, eg, McLachlin CJ’s leading judgment in Marshall/Bernard (n 6) discussed below text to nn 454–55.

406  Canada ad veritatem).373 Failure to clarify the law that applies in a settled yet legally inhabited colony also resulted in the majority prescribing legal principles which offend the common law. In the latter context, although Lamer CJ cited Kent McNeil in support of the proposition that ‘the fact of physical occupation is proof of possession at law, which in turn will ground title to the land’,374 the Chief Justice required additional proof if present occupation was relied upon to prove Aboriginal title: the requirement to show ‘continuity between present and pre-sovereignty occupation’.375 McNeil has, however, persuasively argued that any requirement for Aboriginal people to prove continuity of their occupation offends common law principles regarding property rights. Where an Aboriginal community is presently (ie post-sovereignty) in possession of lands the established rule that title is presumed from possession should give rise to a presumption of Aboriginal title.376 It follows that:377 [T]here should be no need to show continuity of occupation for a presumption of Aboriginal title to arise, any more than there is a need to show continuity of occupation for any other occupier to have a presumptive title. If the Aboriginal community proves the requisite occupation, the burden should then be on the Crown, if it disputes their title, to rebut the presumption. . . . Failing that, the presumptive Aboriginal title should prevail.378

Another aspect of the decision in Delgamuukw which is not supported by the common law is Lamer CJ’s introduction of the inherent limit379 on the content of Aboriginal title that prevents the land from being used in ways that are incompatible with the Aboriginal relationship to the land on which the title is based.380 This inherent limit is 373   See, eg, Tsilhqot’in Nation (n 284) [496] (Vickers J); Hughes v Hudson’s Bay Co (1998) 159 DLR (4th) 526 (BCSC in Chambers) [24] (Errico J); Osoyoos Indian Band v Oliver (Town) 1999 BCCA 297, (1999) 172 DLR (4th) 589 [38] (Newbury J). Indeed, this confusion no doubt explains McNeil’s definition of radical title in McNeil (n 296) 295: ‘The nature of the underlying title the provincial Crown has by virtue of s. 109 [of the Constitution Act 1867] is therefore determined negatively: it amounts to whatever interest remains after the Aboriginal title that burdens it has been subtracted. This is the way s. 109 operates where any interests in land are concerned, as they are all burdens on the Crown’s underlying title. For example, if burdened by a fee simple estate, the Crown’s underlying title does not amount to any present beneficial interest, but rather is a mere right to have the lands go back to the Crown by escheat if the fee simple comes to an end. Like a fee simple, Aboriginal title amounts to a right of exclusive use and possession of potentially infinite duration that includes natural resources. In neither case does the Crown have a present beneficial interest’. 374   Delgamuukw (n 2) [149] citing McNeil (n 14) 73. See also Lamer CJ’s reliance on McNeil in support of ‘the common law principle that occupation is proof of possession in law’: ibid [114]. 375   Delgamuukw (n 2) [152]. 376   See K McNeil, ‘Continuity of Aboriginal Rights’ in K Wilkins (ed), Advancing Aboriginal Claims: Visions/ Strategies/Directions (Saskatoon, Purich Publishing, 2004) 140; K McNeil, ‘The Onus of Proof of Aboriginal Title’ (1999) 37 Osgoode Hall Law Journal 775, 783–84 (reprinted in McNeil, Emerging Justice? (n 7) 136–60). 377   McNeil has also shown that Lamer CJ’s requirement of proving continuity is limited to situations where present (post-sovereignty) occupation is relied upon to prove occupation at sovereignty. If there is sufficient evidence of exclusive occupation at Crown sovereignty, at common law Aboriginal title vests in the Aboriginal group at sovereignty: McNeil, ‘Continuity of Aboriginal Rights’ (n 376) 136–37. 378   ibid 140. 379   See also above text to nn 326–33. 380   Delgamuukw (n 2) [125]–[132]. Lamer CJ explained: ‘lands subject to aboriginal title cannot be put to such uses as may be irreconcilable with the nature of the occupation of that land and the relationship that the particular group has had with the land which together have given rise to aboriginal title in the first place’: ibid [128]. For critical commentary see K McNeil, ‘The Post-Delgamuukw Nature and Content of Aboriginal Title’ in Emerging Justice? (n 7) 116ff; K McNeil, ‘The Sources and Content of Indigenous Land Rights’ (n 220) 160; K McNeil, ‘Judicial Treatment of Indigenous Land Rights in the Common Law World’ in BJ Richardson, S Imai and K McNeil (eds), Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oxford, Hart Publishing, 2009) 257, 266– 67.



Tenure, Radical Title and Aboriginal Land Rights 407

without precedent in the law relating to possessory titles generally381 as well as pre-­ Delgamuukw Aboriginal title jurisprudence, including Mabo. Furthermore, it has been seen that while Lamer CJ identified the content of Aboriginal title – apart from the inherent limit – as a matter of law to be the right to exclusive use and occupation of land which was occupied at sovereignty, he relied solely on the Aboriginal perspective under the ‘integral to the distinctive culture’ test to create the limit on the content of that title. Nevertheless, and despite Lamer CJ justifying the limit as a manifestation of the principle that Aboriginal title is a sui generis interest,382 it fails to take account of the Aboriginal perspective regarding cultural change and economic adaption, some of which has been necessary for Aboriginal people to survive post-colonisation.383 Notwithstanding the problems inherent in the majority Delgamuukw judgment regarding the content and proof of Aboriginal title under the prior occupation source, it did recognise a ‘second source for aboriginal title – the relationship between common law and pre-existing systems of aboriginal law’.384 No analysis of this alternate source was, however, undertaken by the Court; it was merely (mis)applied in the context of proof of occupancy under the prior occupation source.385 Crucially, it was seen in chapter seven that the suggested second source of Aboriginal title in Canada is the source of Aboriginal customary title.386 It has been seen that this source provides a coherent and structured approach to explaining the nature, content and proof of Aboriginal customary title: rather than necessitating the invention of new and inherently inconsistent legal principles, it explains the interaction between established common law principles and Aboriginal laws/customs. While the source of Aboriginal customary title is the relationship between pre-existing Aboriginal laws/customs and the common law, because the title has its origins in presovereignty Aboriginal laws/customs, its content vis-a-vis the titleholders inter se (the internal dimension of the title) is defined by continuing Aboriginal laws/customs. Because the title is accommodated within the legal system imposed as a consequence of Crown sovereignty, its content vis-a-vis the Crown and third parties (the external dimension of the title) is defined by concepts known to that legal system (per se or its evolution) which are consistent with the non-Crown derived nature of Aboriginal customary title: the law relating to tenure in ancient demesne (a traditional exception to the feudal doctrine of tenure equivalent to an inalienable fee simple) or folkland (an allodial system of pre-feudal landholding) applies to land subject to pre-existing title at sovereignty.387 The internal and external dimension of the content of Aboriginal customary title is consistent with the proposition that the source of a title determines its content.388 381   See McNeil (n 220) 160. See also McNeil, ‘Post-Delgamuukw’ (n 380) 116; McNeil, ‘Judicial Treatment of Indigenous Land Rights’ (n 380) 267. 382   Delgamuukw (n 2) [125]. 383   McNeil, ‘Post-Delgamuukw’ (n 380) 117–18. 384   Delgamuukw (n 2) [114]. 385   See above text to n 303ff. 386   See ch 7 text to n 248. 387   See ch 7 text to n 157ff, esp nn 232–48. Note that ‘known to’ a legal system includes known to the legal system per se and its evolution: see ch 7 n 126, text in para following n 133. 388   See McNeil (n 220) 146. See also DelgamuukwCA (n 149) 570 where Wallace JA alluded to the internal/ external dimension of Aboriginal title: ‘For the aboriginal peoples to have the right, vis-a-vis European settlers, to engage in those traditional practices and uses of land which were integral to their aboriginal society there must be recognition of such a right by those outside the aboriginal community and some mechanism requiring them to respect such a “right”. An enforceable right, as against European settlers, came only with the protection which was extended to aboriginal rights by the adjusted common law. Upon the exercise of sovereignty by

408  Canada The test for proof of Aboriginal customary title is also consistent with the proposition that establishing a title requires proof of the actual origin of the title.389 Since its origins are in pre-sovereignty Aboriginal laws/customs, establishing Aboriginal customary title requires proof of the existence of laws/customs pursuant to which occupation of land was part of a system that utilised land in a meaningful way from the Aboriginal perspective (purposive occupation). This is consistent with pre-Delgamuukw authorities, including Lamer CJ’s own judgment in Van der Peet, as well as La Forest J’s judgment in Delgamuukw. La Forest J emphasised that when dealing with a claim of ‘aboriginal title’, the court will focus on the occupation and use of the land as part of the aboriginal society’s traditional way of life. . . . this means looking at the manner in which the society used the land to live, namely to establish villages, to work, to get to work, to hunt, to travel to hunting grounds, to fish, to get to fishing pools, to conduct religious rites, etc.390

Indeed, occupancy was regarded as ‘part of aboriginal culture in a broad sense and [was], therefore, absorbed in the notion of distinctiveness’.391 Accordingly, aboriginal occupancy refers not only to the presence of aboriginal peoples in villages or permanently settled areas. Rather, the use of adjacent lands and even remote territories to pursue a traditional mode of life is also related to the notion of occupancy.392

That proof of the existence of pre-sovereignty laws/customs by which land was purposively occupied raises a presumption of Aboriginal customary title is also supported by the pre-Delgamuukw jurisprudence. Furthermore, that the onus of proving the exist­ ence of the relevant laws/customs giving rise to the presumption of Aboriginal customary title can be met by relying on oral evidence is expressly acknowledged by Lamer CJ in Delgamuukw: Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents . . . given that most aboriginal societies ‘did not keep written records’, the failure to do so would ‘impose an impossible burden of proof’ on aboriginal peoples, and ‘render nugatory’ any rights that they have.393 the Crown, the adjusted common law recognized the aboriginal community’s “right” – vis-a-vis the settlers – to engage in those practices and activities associated with the use of the land they occupied which were traditional, integral and distinctive to the aboriginal society and way of life. The English common law imposed a correlative duty upon the Crown to protect from unjustifiable interference and impairment, the aboriginal community’s right to engage in those aboriginal customs and practices traditionally associated with the lands they occupied and used.’ cf DelgamuukwCA (n 149) 492 (Macfarlane JA, Taggart JA concurring), 571 (Wallace JA) where the justices regarded the content of Aboriginal title as reflecting the traditional practices which were integral to the distinctive culture of the Aboriginal society occupying ancestral lands when the common law was introduced. 389   See McNeil (n 66) 137. 390   Delgamuukw (n 2) [194]. See also above n 306. 391   ibid [199]. 392  ibid. 393   ibid [87]. See also Mitchell v MNR 2001 SCC 3, [2001] 1 SCR 911 (refining test for the admissibility of, and weight to be given to, oral testimony); William v British Columbia (2004) BCSC 148 (reliability of oral histories evidence). Stevenson has argued that although ‘[t]here is no doubt that much work needs to be done to develop experience and fair procedures to weigh and assess evidence that comes from different cultural contexts, . . . real gains have been made in ensuring that Aboriginal narratives play an important role in claims litigation’: Stevenson, ‘Toward a Shared Narrative of Reconciliation’ (n 370) 272. See also D Newman, ‘Tsilhqot’in



Tenure, Radical Title and Aboriginal Land Rights 409

Moreover, since courts are clearly familiar with the presumptions which apply in circumstances where it is necessary at common law to establish proof of custom dating back to ‘time immemorial’,394 Lamer CJ’s judgment also supports the application of such presumptions in the context of Aboriginal customary title claims. Indeed, Lamer CJ made it clear that when courts adjudicate Aboriginal title cases, they should approach the rules of evidence and interpret the evidence that exists in light of the difficulties in proving a title originating in times when there were no written records.395 The application of Aboriginal customary title in Canada is further supported by Lamer CJ’s statement of general principle that ‘the common law should develop to recognize aboriginal rights (and title, when necessary) as they were recognized by either de facto practice or by the aboriginal system of governance’.396 Indeed, this general principle is also consistent with the application of the first limb of the doctrine of common law Aboriginal customary title (‘first limb’) in Canada – pursuant to which Aboriginal customary rights acquired post-sovereignty and analogous to incorporeal hereditaments become the local common law.397 It was seen in chapter seven that in contradistinction to ordinary incorporeal hereditaments which concern rights over land belonging to another who is claiming title through the Crown, rights conferred by Aboriginal custom can be acquired in respect of land whether or not it has been brought within the doctrine of tenure (ad veritatem) by Crown grant.398 However, due to the reasonableness requirement for a valid custom at common law, post-sovereignty Aboriginal customary rights can only support ‘title’ to land which is not subject to any other property rights399 when the customary rights are acquired. The acquisition of such rights is, therefore, potentially most important in the context of unalienated land: land which has neither been granted by the Crown nor appropriated to the Crown. Where land does not belong to another claiming title through the Crown and the Crown has mere radical title to the land – as was the case with much, if virtually not all, land in Canada at the time the Crown asserted sovereignty and for some time afterwards400 – custom can create novel and substantial rights under the first limb. Where no other rights of property are affected, an Aboriginal custom recognising an entitlement effectively amounting to ownership of land would not be unreasonable and, once acquired, would come within the rule that customary rights cannot be lost by disuse or abandonment.401 While Aboriginal customs conferring rights less than title can also be acquired over land which is not subject to other property rights, Aboriginal customary rights acquired over land belonging to another would necessarily be rights short of title. The first limb has significant implications for Métis people in Canada.402 Because Métis people originated in the intermarriage of French Canadian men and Indian women during the fur trade period, their existence post-dated the arrival of Europeans in North Nation v. British Columbia and Civil Justice: Analyzing the Procedural Interaction of Evidentiary Principles and Aboriginal Oral History’ (2005) 43 Alberta Law Review 433; Borrows, Recovering Canada (n 298) 86ff. 394   See ch 7 text to n 266ff. See also DelgamuukwCA (n 149) 651–52 (Lambert JA). 395   Delgamuukw (n 2) [80] referring to his judgment in Van der Peet (n 8) [68]. See also ibid [81]–[82]. 396   ibid [59]. 397   This limb is discussed in ch 7 text to nn 36–124. 398   See ch 7 text to n 118ff. 399   Whether deriving common law title from the Crown or from pre-sovereignty Aboriginal laws/customs. 400   McNeil, ‘Onus of Proof’ (n 376) 779. 401   See ch 7 text to nn 79, 80, 123, 272, 281–83. 402   The Métis are one of three distinct groups of Aboriginal people recognised in the Canadian Constitution: the Indian, Inuit and Métis people: s 35(2) of the Constitution Act 1982.

410  Canada America.403 This meant that they did not come within the Van der Peet definition of Aboriginal rights based on the existence of a practice before European contact. Acknowledging this difficulty, Lamer CJ left open the question of whether the timeframe would need to be modified in order to identify Métis rights.404 This question was answered affirmatively in R v Powley,405 a unanimous decision of the Supreme Court of Canada. The Court held that a modified version of the Van der Peet test for Aboriginal rights applies to the Métis: the requirement for pre-European contact was moved forward to before ‘the time of effective European control’,406 which in Powley was approximately 1850. The question whether this modified time-frame also applies to Métis claims of Aboriginal title remains to be answered. If the Delgamuukw and Marshall/Bernard requirement for occupation of land at the date of Crown sovereignty is applied, Powley makes it clear that the Métis community in the Sault Sainte Marie region of Ontario was not established that early (namely, 1763). The first limb is, therefore, crucial: it provides an independent basis for common law rights to land, including title, based upon Métis customary rights to land acquired post-sovereignty. While a rights/title distinction applies in the context of the first limb, because the test for proof of Aboriginal customary title is based on pre-sovereignty Aboriginal laws/customs pursuant to which occupation of land was part of a system that utilised land in a meaningful way from the Aboriginal perspective, any rights/title distinction is dissolved. It has been seen that the distinction was maintained in Delgamuukw because Lamer CJ’s test for proof of Aboriginal title subsumed the ‘integral to the distinctive culture’ test under the occupancy requirement which ensured that the common law (rather than the Aboriginal) perspective on occupation was decisive. It will be seen that this conclusion is confirmed by the Canadian Supreme Court’s decision in Marshall/Bernard.407 Marshall/ Bernard is important for two interrelated reasons. First, because it highlights the problems inherent in adopting prior occupation as the source of Aboriginal title but specifying the test for proof as occupation at the time the Crown asserted sovereignty. Secondly, because LeBel J expressly considered the relationship between pre-existing Aboriginal laws/customs and the common law as a source of Aboriginal title, rather than merely as a matter of proof. ii  Marshall/Bernard In Marshall/Bernard the Supreme Court of Canada was presented with the opportunity to revisit the issue of proof of Aboriginal title in the context of two specific claims for Aboriginal title which were argued together and combined in one judgment. The question in both cases was whether the Mi’kmaq had Aboriginal title to certain land in Nova Scotia and New Brunswick. The question arose as a result of Aboriginal title being invoked as a defence to charges of unlawfully cutting timber on land within the two provinces.408 403   PW Hogg, ‘The Constitutional Basis of Aboriginal Rights’ in M Morellato (ed), Aboriginal Law Since Delgamuukw (Aurora, Ont, Canada Law Book, 2009) 3, 10. See also J Frideres, Native Peoples in Canada: Contemporary Conflicts, 3rd edn (Scarborough, Prentice-Hall, 1988) 295. 404   Van der Peet (n 8) [67]. 405   R v Powley 2003 SCC 43, [2003] 2 SCR 207. 406   ibid [18]. 407   See below text to n 429. 408   In addition to claiming Aboriginal title to the land where the cutting took place, the defence claimed a right to harvest logs based on treaty, Belcher’s Proclamation of 1762 and the Royal Proclamation of 1763.



Tenure, Radical Title and Aboriginal Land Rights 411 a  McLachlin CJ

Writing for the majority, McLachlin CJ409 adopted prior occupation as the source of Aboriginal title as Lamer CJ had done in Delgamuukw: ‘Where title to lands formerly occupied by an aboriginal people has not been surrendered, a claim for aboriginal title to the land may be made under the common law’ (emphasis added).410 While also applying the dictum of Lamer CJ regarding the test for proof of ‘aboriginal title based on exclusive occupation at the time of British sovereignty’,411 McLachlin CJ added the qualification that: Many of the details of how this principle applies to particular circumstances remain to be fully developed. In the cases now before us, issues arise as to the standard of occupation required to prove title, including the related issues of exclusivity of occupation, application of this requirement to nomadic peoples, and continuity.412

On the question of the standard for determining occupation, McLachlin CJ accepted the principle from Delgamuukw that ‘the Court must consider both the aboriginal perspective and the common law perspective’413 but emphasised the importance of understanding ‘what we mean when we say that in determining aboriginal title we must consider both the common law and the aboriginal perspective’.414 Although not referring to Lamer CJ’s conflation of the two sources of Aboriginal title in the context of proof of occupancy, she nevertheless attempted to reconcile the fact that Lamer CJ’s test for proof of Aboriginal title required (implicitly) application of the ‘integral to the distinctive culture’ test but also regarded this requirement as ‘subsumed by the requirement of occupancy’.415 How did the occupancy requirement include or consider the ‘integral to the distinctive culture’ test? To use McLachlin CJ’s words: what did this mean for the standard of occupation required to establish Aboriginal title? The answer was for the Court ‘to examine the pre-sovereignty aboriginal practice and translate that practice, as faithfully and objectively as it can, into a modern legal right’.416 The Court had to determine ‘whether the aboriginal practice at the time of assertion of European sovereignty . . . translates into a modern legal right, and if so, what right?’417 In making this determination, the Court had to consider the pre-sovereignty practice from the perspective of the aboriginal people. But in translating it to a common law right, the Court must also consider the European perspective; the nature of the

409   Abella, Bastarache, Charron, Major JJ concurring. For critical comment on the decision in Marshall/ Bernard see articles in ‘Special Forum: Perspectives on R. v. Marshall; R. v. Bernard’ (2006) 55 University of New Brunswick Law Journal 73–176; McNeil (n 296) 293ff; B Slattery, ‘The Metamorphosis of Aboriginal Title’ (2006) The Canadian Bar Review 255, 279ff (reprinted in a slightly different from in M Morellato (ed), Aboriginal Law Since Delgamuukw (Aurora, Ont, Canada Law Book, 2009) 145–73); A Cameron, Power without Law: The Supreme Court of Canada, the Marshall Decisions, and the Failure of Judicial Activism (Montreal, McGill-Queen’s University Press, 2009) (criticism of results-based judicial activism which allows the law to become ‘too malleable to personal judicial predilection’: ibid 9). 410   Marshall/Bernard (n 6) [38]. 411   ibid [40]. 412  ibid. 413   ibid [46]. 414   ibid [47]. 415   See above text to nn 330–32. cf McNeil (n 296) 297–98. 416   Marshall/Bernard (n 6) [48]. 417  ibid.

412  Canada right at common law must be examined to determine whether a particular aboriginal practice fits it.418

Importantly, McLachlin CJ acknowledged (consistent with the pre-Delgamuukw authorities) that Aboriginal title has its origins in pre-sovereignty Aboriginal practices and expressly stated that ‘[t]o determine aboriginal entitlement, one looks to aboriginal practices rather than imposing a European template’.419 In support of the latter proposition, she quoted Lamer CJ in Delgamuukw: ‘In considering whether occupation sufficient to ground title is established, ‘one must take into account the group’s size, manner of life, material resources, and technological abilities, and the character of the lands claimed’.420 And she also referred to the application of the ‘manner of life’ test as elabor­ ated by La Forest J in Delgamuukw: [W]hen dealing with a claim of ‘aboriginal title’, the court will focus on the occupation and use of the land as part of the aboriginal society’s traditional way of life. In pragmatic terms, this means looking at the manner in which the society used the land to live, namely to establish villages, to work, to get to work, to hunt, to travel to hunting grounds, to fish, to get to fishing pools, to conduct religious rites, etc.421

By emphasising ‘pre-sovereignty’ Aboriginal practices (and thus the Aboriginal perspective) in the context of determining the appropriate standard of occupation for establishing Aboriginal title, McLachlin CJ appeared to reinterpret Lamer CJ’s test for proof of Aboriginal title based upon occupation at sovereignty pursuant to which the common law requirements for determining occupation were decisive. To the contrary, however, disregarding her own emphasis on the importance of pre-sovereignty practices for the required standard of occupation, McLachlin CJ declared that Aboriginal title ‘is established by aboriginal practices that indicate possession similar to that associated with title at common law’.422 The issue was ‘whether the pre-sovereignty practices established on the evidence correspond[ed] to the right of title to land’.423 This is crucial: by presupposing that the common law concept of title was the appropriate translation for Aboriginal title, it followed that the common law standard of occupation was appropriate to establish Aboriginal title. Accordingly, McLachlin CJ’s definition of ‘occupation’ referred to the common law way of establishing title: ‘ “physical occupation’’ which “may be established 418   ibid. The Chief Justice summarised the process: ‘the court must examine the pre-sovereignty aboriginal practice and translate that practice into a modern right. The process begins by examining the nature and extent of the pre-sovereignty aboriginal practice in question. It goes on to seek a corresponding common law right. In this way the process determines the nature and extent of the modern right and reconciles the aboriginal and European perspectives’: ibid [51]. 419   ibid [49]. 420   ibid quoting Lamer CJ in Delgamuukw (n 2) [149]. 421   ibid quoting La Forest J in Delgamuukw (n 2) [194]. 422   ibid [54]. cf McLachlin CJ’s approach in Mitchell v MNR (n 393) (an Aboriginal rights case) where she recognised the pre-existing and contemporary status of Aboriginal law. Observing that ‘English law . . . accepted that the aboriginal peoples possessed pre-existing laws and interests, and recognized their continuance’, McLachlin CJ held that ‘aboriginal interests and customary laws were presumed to survive the assertion of sovereignty, and were absorbed into the common law as rights . . . the practices, customs and traditions that defined the various aboriginal societies as distinctive cultures continued as part of the law of Canada’: ibid [9], [10]. 423   Marshall/Bernard (n 6) [60]. N Bankes, ‘Marshall and Bernard: Ignoring the Relevance of Customary Property Laws’ (2006) 55 University of New Brunswick Law Journal 120, 127 argues that ‘[b]y focusing on aboriginal practices and yet at the same time failing to inquire into the normative context of that practice, the majority opinion denies the indigenous society and culture any opportunity to influence the translation process that the court describes’.



Tenure, Radical Title and Aboriginal Land Rights 413

in a variety of ways, ranging from the construction of dwellings through cultivation and enclosure of fields to regular use of definite tracts of land for hunting, fishing or otherwise exploiting its resources”’.424 Her definition of ‘exclusive occupation’ was also consistent with ‘the concept of title to land at common law’: ‘the intention and capacity to retain exclusive control’.425 Applying the common law stand­ard of occupation meant that: [E]xploiting the land, rivers or seaside for hunting, fishing or other resources may translate into aboriginal title to the land if the activity was sufficiently regular and exclusive to comport with title at common law. However, more typically, seasonal hunting and fishing rights exercised in a particular area will translate to a hunting or fishing right.426

Furthermore, if the ancient Aboriginal practices did not indicate the exclusionary rights of control commensurate with the common law right to title, ‘then title [was] not the appropriate right’.427 While McLachlin CJ purported to justify her common law occupancy standard on the ground that ‘[t]o confer title in the absence of evidence of sufficiently regular and exclusive pre-sovereignty occupation, would transform the ancient right into a new and different right’,428 she also made the critical admission that it would ‘obliterate the distinction that [the Supreme Court of Canada] has consistently made between lesser aboriginal rights like the right to fish and the highest aboriginal right, the right to title to the land’.429 It has been seen that Lamer CJ also maintained the distinction between Aboriginal title and Aboriginal rights by emphasising the common law perspective on occupation under the prior occupation source of Aboriginal title.430 McLachlin CJ’s judgment, however, exacerbates the fundamental problem inherent in Lamer CJ’s test for Aboriginal title under the prior occupation source by failing to appreciate the significance of his requirement for proof of exclusive occupation at the date of sovereignty, not pre-sovereignty.431 Since proof of occupation at the date of sovereignty is incongruous with a title pre-dating sovereignty, it allowed Lamer CJ to focus on the post-sovereignty common law rather than the pre-sovereignty Aboriginal requirements for establishing occupation. Indeed, Lamer CJ made it clear that the fact that Aboriginal title ‘arises from possession before the assertion of British sovereignty’432 and survived Crown sovereignty suggested the ‘second source for aboriginal title – the relationship between common law and pre-existing systems of aboriginal law’.433 Although pre-sovereignty occupation ‘makes aboriginal title sui generis’ under the prior occupation source, it is the basis of title under the common law/ pre-existing Aboriginal law relationship source.434   Marshall/Bernard (n 6) [56] referring to Lamer CJ in Delgamuukw (n 2) [149]. See also McNeil (n 296)

424

298.

  Marshall/Bernard (n 6) [57].   ibid [58]. See M McCallum, ‘After Bernard and Marshall’ (2006) 55 University of New Brunswick Law Journal 73, 82 (reference to common law title suggests that the ‘same kind of proof of physical occupation that is required to prove rights to land by adverse possession’ is expected). 427   Marshall/Bernard (n 6) [77]. 428   ibid. See P Chartrand, ‘R. v. Marshall; R v. Bernard: The Return of the Native’ (2006) 55 University of New Brunswick Law Journal 135, 139ff who argues that McLachlin CJ developed a new test for establishing Aboriginal rights: the mirror test. 429   Marshall/Bernard (n 6) [77]. 430   Above text to nn 330–32. 431   cf McNeil (n 296) 298. 432   Delgamuukw (n 2) [114]. 433   ibid. See also above text to n 298. 434   Delgamuukw (n 2) [114]. 425 426

414  Canada Nevertheless, when purporting to apply the prior occupation source of Aboriginal title ‘based on occupancy at the time of sovereignty’ – what she termed ‘aboriginal title simpliciter’435 – McLachlin CJ attributed the requirement that ‘[c]laimants must prove “exclusive” pre-sovereignty “occupation” of the land by their forebears’ (emphasis added)436 to Lamer CJ. She also acknowledged and emphasised that Aboriginal title ‘is based on pre-sovereignty aboriginal practices’437 without making any reference to the sui generis nature of Aboriginal title or Lamer CJ’s suggested second source of Aboriginal title. Thus, by specifying the common law standard of occupation as the appropriate test for establishing Aboriginal title despite its pre-sovereignty origins, McLachlin CJ denied the Aboriginal perspective in all cases – Aboriginal practices relating to land must amount to the kind of exclusive occupation that grounds title at common law. Aboriginal title will never be co-extensive with any particular Aboriginal group’s traditional territory.438 Applying the test for Aboriginal title to the facts of the case, McLachlin CJ affirmed that the trial judges439 had applied the correct test and reached the right conclusion. Both trial judges ‘required proof of regular and exclusive use of the cutting sites to establish aboriginal title’440 and found that this standard of occupation had not been proved; Aboriginal title had not been established. This is to be contrasted with the Court of Appeal judges who held that the test applied by the trial judges ‘was too strict’ and applied a ‘standard of incidental or proximate occupancy’.441 In R v Marshall,442 Cromwell JA held ‘that it was sufficient to prove occasional entry and acts from which an intention to occupy the land could be inferred’,443 so that acts of ‘cutting trees or grass, fishing in tracts of water, and even perambulation, may be relied upon’.444 He found that the requirement to prove ‘regular and exclusive use in order to establish title in the common law sense’ was inconsistent ‘with the semi-nomadic culture or lifestyle of the Mi’kmaq’.445 In R v Bernard,446 Daigle JA similarly concluded that it was erroneous to require ‘proof of specific acts of occupation and regular use in order to ground aboriginal title’.447 He explained that: It was enough to show that the Mi’kmaq had used and occupied an area near the cutting site at the confluence of the Northwest Miramichi and the Little Southwest Miramichi. This proxim  Marshall/Bernard (n 6) [38].   ibid [55] referring to Delgamuukw (n 2) [143]. 437   ibid [67] – despite confirming that Aboriginal title, like Aboriginal rights, ‘is based on pre-sovereignty aboriginal practices’. 438  See Tsilhqot’in Nation (n 284) [554] (Vickers J). See also Bankes, ‘Marshall and Bernard’ (n 423) (the decisions in Delgamuukw and Marshall/Bernard are inconsistent because the Aboriginal perspective and the common law perspective were not attributed equal weight in the latter). 439   Curran Prov Ct J in Marshall; Lordon Prov Ct J in Bernard. 440   Marshall/Bernard (n 6) [41], [72]. 441   ibid [41]. 442   R v Marshall 2003 NSCA 105, (2003) 218 NSR (2d) 78. 443   Marshall/Bernard (n 6) [76]. 444   MarshallNSCA (n 442) [136] cited in Marshall/Bernard (n 6) [42]. 445   Marshall/Bernard (n 6) [76]–[77]. In MarshallNSCA (n 442) [153]–[156] Cromwell JA tried to reflect on and develop the notion of occupation in order to reconcile Aboriginal and common law perspectives on ownership. He attempted to take the different patterns of First Nations land use into consideration in order to effect a legal transposition of the Aboriginal perspective and experience into the structures of the law of property. He stayed within the framework of this part of the law while remaining faithful to the tradition of flexibility of the common law in order to bridge gaps between sharply distinct cultural perspectives on the relationship of different peoples with their land: see Marshall/Bernard (n 6) [130] (La Forest J). 446   R v Bernard 2003 NBCA 55, (2003) 262 NBR (2d) 1. 447   Marshall/Bernard (n 6) [76]. 435 436



Tenure, Radical Title and Aboriginal Land Rights 415 ity permitted the inference that the cutting site would have been within the range of seasonal use and occupation by the Mi’kmaq 448

In addition to applying an occupancy standard which accommodated the Aboriginal perspective, Daigle JA took a ‘territorial approach’ to proof of Aboriginal title.449 Such an approach was also adopted by Cromwell JA, who summarised the position: The test as expressed in Delgamuukw is whether the claimant has established exclusive occupation at sovereignty of the lands claimed. The question, in my opinion, is not whether exclusive occupation of the cutting sites was established, but whether exclusive occupation of a reasonably defined territory which includes the cutting sites, was established. Insistence on proof of acts of occupation of the specific cutting sites within that territory is, in my opinion, not consistent with either the common law or the aboriginal perspective in occupation.450

By taking into account the Aboriginal perspective on occupation of land, Cromwell JA and Daigle JA’s judgments (if not reversed in Marshall/Bernard) would have identified the entire province of Nova Scotia and about half the province of New Brunswick (respectively) as subject to Aboriginal title. It will be seen that although the decision in Marshall/Bernard was unanimous in result, LeBel J (with whom Fish J concurred) delivered a separate judgment expressing views on the standard of occupation required to establish Aboriginal title which differed significantly from those of McLachlin CJ and which were more in accord with those of the Courts of Appeal. To ignore the Aboriginal relationship to land as McLachlin CJ did in the context of the appropriate occupancy standard for establishing Aboriginal title is, in LeBel J’s words, ‘to adopt the view that prior to the assertion of Crown sovereignty Canada was not [legally] occupied’.451 Moreover, since the Chief Justice expressly acknowledged that Aboriginal title is based on pre-sovereignty practices, to insist on a common law standard of occupation in order to establish the title is tantamount to resurrecting the ‘scale of social organisation’ mindset vis-a-vis Aboriginal title: although pre-sovereignty practices less than exclusive occupation of land that would ground title at common law are conceptions of rights which can be recognised under Aboriginal rights jurisprudence, they cannot ‘be reconciled with the institutions or the legal ideas of a civilised society’452 and thus confer title to land. Such a conclusion is internally consistent with Aboriginal rights jurisprudence (which McLachlin CJ was anxious to preserve) but by disregarding pre-sovereignty Aboriginal occupation and title it effectively applied the ‘desert and uninhabited’ doctrine453 to Aboriginal title claims. This may also explain McLachlin CJ’s equivocal reference to ‘Crown land’. Observing that the significance of the present cases transcended the charges at stake, she identified the central issue for determination as being ‘whether Mi’kmaq peoples in Nova Scotia and New Brunswick have the right to log on Crown lands for commercial purposes pursuant to treaty or aboriginal title’.454 If the Chief Justice used the term ‘Crown land’ interchangeably with ‘Crown property’ – in the sense of the Crown’s entitlement to   BernardNBCA (n 446) [43]. See also ibid [119], [85].   ibid [85]. See also McNeil (n 296) 299ff. 450   MarshallNSCA (n 442) [183], Saunders JA also concurring on this point. 451   Marshall/Bernard (n 6) [134]. 452   Southern Rhodesia (155) 233–34. 453   The ‘desert and uncultivated’ doctrine is the common law counterpart of the international law doctrine of terra nullius: see above text to nn 11–13. 454   Marshall/Bernard (n 6) [5]. See also ibid [1]. 448 449

416  Canada absolute beneficial ownership of the land – there could be no question of Aboriginal title. It has been seen that while the pre-Delgamuukw authorities regarded the Crown’s title to land on sovereignty of inhabited territory as a mere radical title, a bare legal title, in Delgamuukw it appeared to be regarded as absolute ownership except to the extent of Aboriginal title. Thus, McLachlin CJ’s reference to ‘Crown land’, whether as a common law or statutory concept, must necessarily be a synonym for the Crown’s ‘radical title’.455 While she did not clarify the legal nature of the title, the important point is that whether regarded as a bare legal title or absolute ownership except to the extent of Aboriginal title, Crown land does not entitle the Crown to an automatic beneficial interest in land. Before considering LeBel J’s judgment, it will be recalled that in chapter seven it was seen that the content of Aboriginal customary title (external and internal dimensions) is consistent with the principles which emerge from McNeil and Slattery’s views regarding the content of conventional Aboriginal title. Since McNeil’s preferred approach to conceptualising Aboriginal title (a blended common law/Aboriginal law approach) was influenced by Lamer CJ’s decision in Delgamuukw, McLachlin CJ’s leading judgment in Marshall/Bernard raised the question whether McNeil’s preferred approach had been judicially replaced by a strict common law approach.456 As foreshadowed in chapter seven, it has not. While McLachlin CJ clearly regarded Lamer CJ’s dictum in Delgamuukw as authoritative, she only considered one of the two sources of Aboriginal title Lamer CJ identified: the prior occupation source; she failed to consider (or even mention) the common law/pre-existing Aboriginal laws/customs relationship source. McNeil’s analysis, on the other hand, is clearly based on both sources.457 Furthermore, LeBel J’s judgment expressly referred to both sources458 and, unlike Lamer CJ’s approach, did not define them as mutually exclusive. b  LeBel J While agreeing with McLachlin CJ’s ultimate result, LeBel J had concerns about various aspects of her reasons. On the issue of Aboriginal title, he was particularly concerned that ‘given the nature of land use by aboriginal peoples’, and ‘in particular the nomadic nature of that use by many First Nations’, the approach adopted by McLachlin CJ was ‘too narrowly focused on common law concepts relating to property interests’459 and might ‘be fundamentally incompatible with a nomadic or semi-nomadic lifestyle’.460 A common law occupancy standard was not appropriate. Rather, Aboriginal title must be understood by reference to both common law and Aboriginal perspectives which ‘may not draw a distinction between nomadic and sedentary modes of use or of occupation. Both modes would suffice to create the connection between the land and the First

455   The alternate conclusion would amount to a ‘misunderstanding aris[ing] from assuming the Crown’s underlying title has a beneficial value’: McNeil (n 296) 295. See also ibid 293–95; ch 4 text to nn 136, 140, 149, 202; ch 6 text to n 195ff; U Secher, ‘Implications of the Crown’s Radical Title for Statutory Regimes Regulating the Alienation of Land: “Crown Land” v “Property of the Crown” Post-Mabo’ (2008) 34 Monash University Law Review 9. 456   See ch 7 text to n 202. 457   McNeil (n 296) 287–88, 289–90, 297. 458   Marshall/Bernard (n 6) [129]. 459   ibid [110]. 460   ibid [126].



Tenure, Radical Title and Aboriginal Land Rights 417

Nations which forms the core of aboriginal title’.461 And this was mandated by the source of Aboriginal title. For LeBel J the two sources of Aboriginal title identified by Lamer CJ in Delgamuukw were not alternatives but were to be considered together: ‘[Aboriginal title] originates from “the prior occupation of Canada by aboriginal peoples” and from “the relationship between common law and pre-existing systems of aboriginal law”’ (emphasis added).462 It has been seen that although Lamer CJ conflated the two sources in the context of proof of occupancy, as sources he regarded them as mutually exclusive: notwithstanding pre-sovereignty Aboriginal occupation of land being common to both, the existence of Aboriginal title arose at sovereignty under the prior occupation source and pre-dated sovereignty under the common law/pre-existing Aboriginal law relationship source.463 It will be seen that LeBel J merged the two sources by subsuming the prior occupation source under the common law/pre-existing Aboriginal law relationship source. LeBel J observed that the theory underlying Lamer CJ’s prior occupation source – that, at common law, ‘the physical fact of occupation is proof of possession’464 – explained Lamer CJ’s requirement for proof of occupation at sovereignty: ‘an aboriginal group which occupied land at the time of European sovereignty and never ceded or otherwise lost its right to that land, continue[d] to enjoy title to it’.465 However, because ‘aboriginal title is a right derived from the historical occupation and possession of land by aboriginal peoples’466 it also ‘reflect[ed] this fact of prior use and occupation of the land together with the relationship of aboriginal peoples to the land and the customary laws of ownership’.467 For LeBel J, the inevitable consequence of rejecting the classification of an inhabited territory as terra nullius ‘was not just recognition of indigenous occupants, but also acceptance of the validity of their prior possession and title’.468 It is this pre-existing Aboriginal title which was ‘a burden on the Crown’s underlying title’469 and which protected ‘aboriginal peoples in the absolute use and enjoyment of their lands’.470 The fact that Aboriginal title pre-dated and survived Crown sovereignty is the theory underlying Lamer CJ’s common law/pre-existing Aboriginal law source. The existence of Aboriginal title under LeBel J’s merged source pre-dates Crown sovereignty. Indeed, LeBel J emphasised the common law/pre-existing Aboriginal laws/customs source by subsuming the prior occupation source within it. And LeBel J’s test for proof of Aboriginal title confirms this interpretation. While occupation at sovereignty is required to establish Aboriginal title, LeBel J explained that proof of occupation is determined by Aboriginal laws/customs: The patterns and nature of aboriginal occupation of land should inform the standard necessary to prove aboriginal title. The common law notion that ‘physical occupation is proof of   ibid [129].   ibid referring to Lamer CJ in Delgamuukw (n 2) [114]. 463   Above text to nn 292–99. 464   Marshall/Bernard (n 6) [131]. See also above text to n 294. 465   Marshall/Bernard (n 6) [131] referring to Lamer CJ in Delgamuukw (n 2) [39]. 466  ibid. 467   ibid [134]. 468   ibid referring to S Hepburn, ‘Feudal Tenure and Native Title: Revising an Enduring Fiction’ (2005) 27 Sydney Law Review 49, 79. See also ibid [132]. 469   Marshall/Bernard (n 6) [134]. 470   ibid [135]. 461 462

418  Canada possession’ remains, but the nature of the occupation is shaped by the aboriginal perspective, which includes a history of nomadic or semi-nomadic modes of occupation.471

This is crucial: it means ‘that physical occupation as understood by the modern common law is not the governing criterion. The [Aboriginal] group’s relationship with the land is paramount’.472 While the common law principle that ‘occupation is proof of possession in law’ supports the proposition that the claimant must demonstrate physical occupation of the land claimed . . . the physical fact of sedentary and continuous occupation is only one of the sources of [Aboriginal] title.473

When the Aboriginal perspective is taken into account as a source, the occupancy requirement cannot be equated to the common law notion of possession amounting to a fee simple. On the contrary, proof of aboriginal title relates to the manner in which the aboriginal group used and occupied the land prior to the assertion of Crown sovereignty.474

Acknowledging that ‘[t]he nature and patterns of land use that are capable of giving rise to a claim for title are not uniform and are potentially as diverse as the aboriginal peoples that possessed the land prior to the assertion of Crown sovereignty’, LeBel J held that ‘[t]he fact that a tract of land was used for hunting instead of agriculture does not mean that the group did not possess the land in such a way as to acquire aboriginal title’.475 In addition to an Aboriginal group’s de facto pre-sovereignty use and occupation of land constituting proof of occupancy, so does de jure pre-sovereignty use and occupation:476 Aboriginal customary law relating to land is evidence of occupation and use of land.477 Moreover, because ‘[t]he aboriginal perspective shapes the very concept of aboriginal title’, its role ‘cannot be simply to help in the interpretation of aboriginal practices in order to assess whether they conform to common law concepts of title’.478 Rather, Aboriginal law should not just be received as evidence that Aboriginal peoples did something in the past on a piece of land. It is more than evidence: it is actually law. And so, there should be some way to bring to the decision-making process those laws that arise from the standards of the indigenous people before the court.479   ibid [131].   ibid [136]. 473   ibid [138]. 474   ibid: LeBel J referred to Lamer CJ’s comments in Delgamuukw (n 2) [126] to support the proposition that ‘aboriginal title affords legal protection to historical patterns of occupation in recognition of the importance of the relationship of an aboriginal community to its land’ and to La Forest J’s manner of life test in Delgamuukw (n 2) [194] as reinforcing this proposition. 475   Marshall/Bernard (n 6) [136]. 476   Note that the terms ‘custom’ and ‘law’ (and their derivatives) are used interchangeably in the Aboriginal customary title context: see ch 7 text to nn 27–29. 477   ‘Aboriginal title has been recognized by the common law and is in part defined by the common law, but it is grounded in aboriginal customary laws relating to land’: Marshall/Bernard (n 6) [128]. 478   ibid [130]. 479   ibid quoting from J Borrows, ‘Creating an Indigenous Legal Community’ (2005) 50 McGill Law Journal 153, 173. Subsequently, however, LeBel J did refer to Lamer CJ’s statement in Delgamuukw that the Aboriginal perspective on the occupation of their land could ‘also be gleaned in part, but not exclusively, from pre-­ sovereignty systems of aboriginal law. The relevant laws consisted of elements of the practices, customs and traditions of aboriginal peoples and might include a land tenure system or laws governing land use’: ibid [139]. 471 472



Tenure, Radical Title and Aboriginal Land Rights 419

In addition to being evidence of occupation, therefore, because Aboriginal law involves the exercise of jurisdiction – which in the context of land is territorial480 – it means that Aboriginal title has a jurisdictional component. Consistent with the territorial approach of the Courts of Appeal, LeBel J expressed the view that: [A]boriginal conceptions of territoriality, land-use and property should be used to modify and adapt the traditional common law concepts of property in order to develop an occupancy stand­ard that incorporates both the aboriginal and common law approaches. Otherwise, we might be implicitly accepting the position that aboriginal peoples had no rights in land prior to the assertion of Crown sovereignty because their views of property or land use do not fit within Euro-centric conceptions of property rights.481

He explained that because Lamer CJ’s test for proof of Aboriginal title required application of the ‘integral to the distinctive culture’ test but subsumed this requirement under the occupancy requirement,482 it demonstrated that ‘the degree of occupation sufficient to establish title . . . is ultimately premised upon the notion that the specific land or territory at issue was of central significance to the aboriginal group’s culture’.483 This confirmed that occupation should ‘be proved by evidence not of regular and intensive use of the land but of the traditions and culture of the group that connect it with the land’.484 By subsuming the prior occupation source (requiring proof of occupancy at sovereignty) under the common law/pre-existing Aboriginal laws/customs source (acknow­ ledging Aboriginal title pre-dating sovereignty), LeBel J effectively reversed Lamer CJ’s test – which had subsumed the ‘integral to the distinctive culture’ test (based on preexisting Aboriginal traditions/practices) under the occupancy requirement (requiring physical occupation of land at sovereignty) – to emphasise the Aboriginal perspective in proving occupancy. This is the very antithesis of the site-specific physical occupation which the trial judges and McLachlin CJ adopted as the appropriate standard of occupation. Indeed, in contradistinction to Lamer CJ and McLachlin CJ who were concerned to preserve the distinction between Aboriginal title and Aboriginal rights, LeBel J signalled the need to dissolve it given the nature of land use by aboriginal peoples. He emphasised that as a result of McLachlin CJ’s common law occupancy standard, ‘nomadic life might have given rise to specific rights exercised at specific places or within identifiable territories, but never to a connection with the land itself in the absence of evidence of intensive and regular use of the land’.485 The standard of occupation required to prove Aboriginal title ‘must therefore reflect the patterns of occupation of the land prior to the assertion of British sovereignty’.486 Occupation should ‘be proved by evidence . . . of the traditions and culture of the group

  See McNeil (n 296) 303–04 and authority cited in fn 125.   Marshall/Bernard (n 6)[127]. See Hepburn, ‘Feudal Tenure and Native Title: Revising an Enduring Fiction’ (n 468). 482   Marshall/Bernard (n 6) [140]. See also ibid [129]: ‘[a]s with all aboriginal rights . . . aboriginal title arises from the prior possession of land and the prior social organization and distinctive cultures of aboriginal peoples on that land’ (referring to Van der Peet (n 8) [74] cited in Delgamuukw (n 2) [141]). 483   Marshall/Bernard (n 6) [140]. 484  ibid. 485   ibid [126]. 486   ibid [127]. 480 481

420  Canada that connect it with the land’487 which include ‘aboriginal conceptions of territoriality’.488 Notwithstanding this approach to proof of occupation, LeBel J dismissed the Aboriginal title claim on the basis that the factual record lacked the necessary ‘evidentiary foundation’.489 He did, however, emphasise that he did not consider the decision ‘a final determination of the issue of aboriginal title rights in Nova Scotia or New Brunswick’ and that ‘[a] final determination should be made only where there is an adequate evidentiary foundation that fully examines the relevant legal and historical record’.490 LeBel J’s judgment is important because it directly considered the source of Aboriginal customary title – the relationship between pre-existing Aboriginal laws/customs and the common law – as a source of conventional Aboriginal title rather than merely a matter of proof. And while he merged the common law/pre-existing Aboriginal laws/customs relationship source with the prior occupation source, by subsuming the latter under the former, he underscored the former. Accordingly, LeBel J’s decision has the most precedential value in the context of Aboriginal customary title.491 To summarise his analysis of the nature, content and proof of Aboriginal title: Aboriginal title is recognised by the common law but ‘it is grounded in aboriginal customary laws relating to land’. Following from the origins of the title, the requirement to prove occupation of land at sovereignty in order to establish Aboriginal title is not governed by physical occupation as understood by the modern common law. Instead, de facto and de jure pre-sovereignty Aboriginal patterns of occupation are paramount: Aboriginal conceptions of occupation represent the appropriate occupancy standard. Thus, Aboriginal laws/customs relating to use and occupation of land is evidence of occupation for the purpose of establishing Aboriginal title – a title which confers ‘absolute use and enjoyment’ of the land and has a jurisdictional aspect. While LeBel J’s analysis did not explain how the diverse Aboriginal patterns of land use that are capable of constituting occupation from the Aboriginal perspective give rise to a generic title conferring absolute use and enjoyment of land,492 his statement that ‘Aboriginal title has been recognized by the common law and is in part defined by the common law, but it is grounded in aboriginal customary laws relating to land’493 is crucial. It suggests that, like Aboriginal customary title, it has an external generic dimension defined by the common law and an internal dynamic dimension defined by specific Aboriginal laws/customs which can be changed through exercise of the decision-making authority vested in the Aboriginal group. Moreover, because the external content of Aboriginal customary title relates to how the title is accommodated within the postsovereignty property system, it will be seen that LeBel J’s judgment is also consistent   ibid [140].   ibid [127]. 489   ibid [141]. He observed that the evidentiary problems may reflect the fact that, rather than being raised in the more appropriate context of civil actions, the Aboriginal title claims were raised in the context of summary conviction proceedings pursuant to provincial legislation. Consequently, he suggested that ‘when issues of aboriginal title or other aboriginal rights claims arise in the context of summary conviction proceedings, it may be most beneficial to all concerned to seek a temporary stay of the charges so that the aboriginal claim can be properly litigated in the civil courts. Once the aboriginal rights claim to the area in question is settled, the Crown could decide whether or not to proceed with the criminal charges’: ibid [144]. 490   ibid [141]. 491   It is also consistent with the pre-Delgamuukw jurisprudence regarding the source of Aboriginal title. 492   cf Lamer CJ’s ‘inherent limit’ on the content of Aboriginal title under the prior occupation source: above text to nn 326, 333, 379ff. 493   Marshall/Bernard (n 6) [128]. 487 488



Tenure, Radical Title and Aboriginal Land Rights 421

with Aboriginal customary title on this issue.494 Indeed, the fundamental tenets of LeBel J’s analysis are consistent with the doctrine of Aboriginal customary title. His principal point of departure relates to the burden of proving title. Although LeBel J reversed the decisions of the Courts of Appeal, he did so on the basis that the ‘record in the courts below lack[ed] the evidentiary foundation necessary to make legal findings on the issue of aboriginal title in respect of the cutting sites in Nova Scotia and New Brunswick’.495 He agreed with the Courts of Appeal that the trial judges had applied the wrong standard of occupation for the purpose of establishing Aboriginal title: regular and intensive use of land was not required. In this context, he commented positively on Cromwell JA’s attempt (for the majority of the Nova Scotia Court of Appeal in Marshall) to develop a concept of occupation sufficient to establish Aboriginal title which reconciled the Aboriginal and common law perspectives on ownership.496 Cromwell JA applied McNeil’s view that the ‘general occupant’ approach – applying to land which is unowned or with respect to which title is uncertain – is the most appropriate standard for Aboriginal title.497 Not only was this ‘the appropriate standard of occupation, from the common law perspective’,498 it was also ‘compatible with the [Aboriginal] perspective regarding territoriality and ownership’.499 Cromwell JA emphasised that ‘[a] more stringent standard would not be consistent with the culture of a people whose “subsistence quest” through hunting, fishing and gathering led them to frequent movement within the territory they considered theirs’.500 Applying this legal test of occupation to the facts, there was sufficient occupation to establish Aboriginal title to the cutting sites (and all of Nova Scotia). Indeed, the trial judge in Marshall found that the evidence supported the conclusion that ‘the Mi’kmaq probably had Aboriginal title to lands around their local communities, but not to the cutting sites’ (emphasis added).501 In reaching this conclusion, he distinguished the ‘line separating sufficient and insufficient occupancy for title’ as being ‘between nomadic and irregular use of undefined lands on the one hand and regular use of defined lands on the other’.502 He identified the problem for the defendant as being where ‘an aboriginal group has used lands only for certain limited activities and not intensively, the group might have an aboriginal right to carry on those activities, but it doesn’t have title’.503 And it has been seen that LeBel J rejected McLachlin CJ’s endorsement of the trial judge’s test for Aboriginal title because it would mean that nomadic or semi-nomadic occupation would only give rise to Aboriginal rights, not Aboriginal title.504 LeBel J’s test for Aboriginal title is not only closer to that applied by the Courts of Appeal, but goes further: the concept of occupation as understood by the common law is   Below text to nn 589–92.   Marshall/Bernard (n 6) [141]. 496   ibid [130] referring to MarshallNSCA (n 442) [153]–[156] (Cromwell JA, Oland JA concurring). 497   MarshallNSCA (n 442) [153]–[156]. 498   ibid [138]. 499   ibid [156]. 500  ibid. 501   R v Marshall 2001 NSPC 2, [2001] 2 CNLR 256 (NS Prov Ct) [143] (Curran JPC). On appeal to the Supreme Court of Nova Scotia, Scanlan J agreed with the approach taken by the trial judge to the proof of Aboriginal title: R v Marshall 2002 NSSC 57, [2002] 3 CNLR 176 [110]. 502   Marshall/Bernard (n 6) [141]. 503   ibid [139]. 504   ibid [126]. 494 495

422  Canada not the governing criterion; the standard of occupation must reflect the pre-sovereignty patterns of Aboriginal occupation of land. His ultimate dismissal of the Aboriginal title claim in Nova Scotia on the basis of insufficient evidence is, therefore, difficult to reconcile with both the trial judge’s findings of fact and the application of Cromwell JA’s test to those facts. LeBel J’s dismissal of the Aboriginal title claim in New Brunswick is similarly problematic. In BernardNBCA,505 Daigle JA (of the New Brunswick Court of Appeal) expressed his disagreement with the trial judge’s view on the standard of occupation required to establish Aboriginal title in the following terms: In my view, the trial judge’s statement . . . that ‘occasional’ use or ‘occasional forays for hunting, fishing and gathering are not sufficient to establish aboriginal title in the land’ is incorrect and exhibits a fundamental misunderstanding of what Delgamuukw requires as sufficient elements of physical occupation to ground title. . . . In particular, the inclusion of ‘manner of life’ in the list of factors to be considered for occupation at common law would undoubtedly include consideration of the seasonal pattern of exploitation of the resources of the entire Northwest Miramichi watershed by the Mi’kmaq. . . . Therefore, as a matter of law, the same factor of the Mi’kmaq subsistence pattern, which represents the essential feature of their perspective on the occupation of their lands, must be taken into account in determining the requisite degree of occupation.506

As to occupation of land by the Miramichi Mi’kmaq – a hunter-gatherer Aboriginal group – Daigle JA referred to McNeil’s opinion that a group who habitually and exclusively ranged over a definite tract of land . . . exploiting natural resources in accordance with their own interests and way of life, would have been in occupation of that land . . . As to the extent of their occupation, it would include not just land in actual use by them at any given moment, but all land within their habitual range.507

Daigle JA also criticised aspects of the trial judge’s approach to the facts. In addition to failing to ‘give appropriate weight to the evidence of the pattern of land use and occupancy . . . as substantiated by [expert] evidence’, the trial judge also ‘discounted the evidence of oral traditions’.508 Daigle JA was satisfied that the trial judge ‘failed to appreciate the evidentiary difficulties inherent in adjudicating aboriginal claims’ which was particularly apparent from ‘his observations on the insufficiency or lack of evidence on crucial factual issues’.509 Accordingly, Daigle JA held that the findings of fact could not stand and ‘must be set aside and reconsidered on appellate review’.510 And, after (re)examining the evidentiary record, he was ‘satisfied that there [was] no paucity or lack of evidence in the record to preclude a determination of the issue of the use and occupation by the Miramichi Mi’kmaq of the [claimed area]’.511 Rather, ‘the record disclose[d] a sufficient   See above n 446.   BernardNBCA (446) [86] referring to R v Bernard [2000] NBJ No 138, [2000] 3 CNLR 184 (NB Prov Ct) [107] (Lordon JPC). An appeal to the Court of Queen’s Bench sitting as a Summary Conviction Appeal Court confirmed the trial judge’s decision: R v Bernard 2001 NBQB 82, (2001) 239 NBR (2d) 173. In the Court of Appeal, Robertson JA also disagreed with the trial judge on the standard of occupation required to establish Aboriginal title. However, because he overturned the conviction on the basis of a treaty right to harvest and sell logs, he expressly refrained from deciding whether the evidence was sufficient to support a declaration of Aboriginal title. 507   BernardNBCA (n 446) [88] quoting McNeil (n 14) 204. 508   ibid [115]. 509   ibid [119]. 510   ibid [123]. 511   ibid [126]. 505 506



Tenure, Radical Title and Aboriginal Land Rights 423

evidentiary basis for a full consideration of all factual issues relevant to the use and occupation of the land claimed’.512 Moreover, on the evidentiary record Daigle JA was satisfied that about half of New Brunswick was subject to Miramichi Mi’kmaq Aboriginal title.513 LeBel J’s conclusion that the record in the courts below lacked the necessary evidentiary foundation to make legal findings on the issue of aboriginal title514 is clearly incongruous with the legal findings made by the Courts of Appeal. It also represents the point of divergence between LeBel J’s judgment and the doctrine of Aboriginal customary title. Pursuant to this doctrine, evidence of the existence of laws/customs upon which purposive occupation is based is the threshold question and raises a presumption of Aboriginal customary title. The onus of proving Aboriginal customary title to particular land can be met by relying on oral evidence of the existence of the relevant pre-sovereignty laws/customs. The burden of proving the existence of the relevant pre-sovereignty laws/customs is also reduced by the application of specific presumptions relating to proof of customs at common law. The burden of rebutting the presumption of the title is on the Crown or whoever else challenges its validity. Thus, the fact that the evidentiary record in Marshall/Bernard clearly provided evidence of de facto pre-sovereignty Aboriginal occupation of the claimed land would have raised a presumption of Aboriginal customary title. Indeed, LeBel J expressly identified an Aboriginal group’s de facto pre-sovereignty use and occupation of land as evidence of occupation. It has also been seen that Delgamuukw supports the proposition that the onus of proving the existence of laws/customs giving rise to the presumption of Aboriginal customary title can be met by relying on oral evidence as well as the application of common law presumptions in the context of Aboriginal customary title claims.515 When LeBel J’s judgment is (re)considered in light of the evidentiary principles from Delgamuukw, its divergence from the doctrine of Aboriginal customary title is perceived rather than real. Despite LeBel J’s decision being authoritative in the context of the common law/preexisting Aboriginal law relationship source of Aboriginal title, the first instance judgment of (the late) Vickers J in Tsilhqot’in Nation v British Columbia516 regarded the question of Aboriginal title as turning on the principles enunciated by McLachlin CJ, who applied the prior occupation source of Aboriginal title. Vickers J did, however, say that the decision in Marshall/Bernard stood ‘for the proposition that Aboriginal title is not co-extensive with any particular Aboriginal group’s traditional territory’517 – the very antithesis of LeBel J’s judgment. Indeed, since McLachlin CJ’s judgment required exclusive occupation in the sense of effective control over definite tracts of land, it was believed that the case ‘signalled the end of large-scale aboriginal title claims and that these “definite tracts” would now be limited to villages and small areas within their vicinity’:518 referred to as the ‘postage stamp approach to Aboriginal title’ by the Aboriginal claimants in Tsilhqot’in Nation.519

  ibid [126].   See Hunter, ‘Disappointed Expectations’ (n 322) 29. 514   Marshall/Bernard (n 6) [141]. 515   See above text to nn 393–95. 516   Tsilhqot’in Nation (n 284) [1367]. For comment see references cited in ch 7 n 323. 517   ibid [554]. 518   McHugh, Aboriginal Title (n 176) 147. 519   Tsilhqot’in Nation (n 284) [610]. 512 513

424  Canada iii  Tsilhqot’in Nation Tsilhqot’in Nation involved a representative action commenced by Chief Roger William of the Xeni Gwet’in First Nations community (one of six Tsilhqot’in bands) on behalf of all Xeni Gwet’in and Tsilhqot’in peoples seeking a declaration of Aboriginal title and/or Aboriginal rights to hunt, trap and trade over part of central British Columbia. The action followed ongoing First Nation concern about logging activity licensed by the province in the claim area and a subsequent broken assurance by the Premier of British Columbia that there would be no logging in the area without First Nation consent. Although deciding that the claimants were not entitled to the declaration of Aboriginal title sought because the case had not been properly pleaded,520 Vickers J nevertheless expressed the opinion that Aboriginal title had been established over a large area (both inside and outside the claim area) and observed that a declaration of title would have been issued but for the defect in the pleadings.521 Importantly, he was of the view that Aboriginal title was not only established in relation to distinct parcels of land subject to a high degree of exclusive occupation and use, such as traditional village sites, but also to fields which were used for harvesting various plants and the areas connecting the villages and fields: The entire body of evidence in this case reveals village sites occupied for portions of each year. In addition, there were cultivated fields. These fields were not cultivated in the manner expected by European settlers. Viewed from the perspective of Tsilhqot’in people the gathering of medicinal and root plants and the harvesting of berries was accomplished in a manner that managed these resources to insure their return for future generations. These cultivated fields were tied to village sites, hunting grounds and fishing sites by a network of foot trails, horse trails and watercourses that defined the seasonal rounds. These sites and their interconnecting links set out definite tracts of land in regular use by Tsilhqot’in people at the time of sovereignty assertion to an extent sufficient to warrant a finding of Aboriginal title522

The evidence in Marshall/Bernard and Tsilhqot’in Nation established that the Mi’kmaq and the Tsilhqot’in were ‘moderately nomadic’523 and ‘semi-nomadic’524 respectively. Yet, contrary to McLachlin CJ’s decision in Marshall/Bernard, Vickers J concluded that evidence of seasonal semi-nomadic use of a broad land base was sufficient to establish Aboriginal title.525 The difference between the two judgments lies in what constitutes evidence of the required occupancy standard. It has been seen that McLachlin CJ’s test for proof of Aboriginal title (following Lamer CJ in Delgamuukw) subsumed the ‘integral to the distinctive culture’ requirement under the occupancy requirement so that the common law perspective of the effect of Aboriginal occupation prevailed. Applying McLachlin CJ’s test in Marshall/Bernard, Vickers J made it clear that his conclusion was based on land ‘occupied by Tsilhqot’in people at the time of sovereignty assertion to a degree sufficient to warrant a finding of Tsilhqot’in Aboriginal title land from three perspectives’: 520   ibid [957], see also [129]. The case was framed as an ‘all or nothing’ claim and title to the entire claim area had not been established by the evidence. 521   ibid [686], [792], [852], [957], [959]–[962]. See also ch 7 text to n 332. 522   ibid [959]. 523   Marshall/Bernard (n 6) [79] (McLachlin CJ). 524   Tsilhqot’in Nation (n 284) [610] (Vickers J). 525   The evidence considered in Tsilhqot’in Nation was more extensive than in Marshall/Bernard.



Tenure, Radical Title and Aboriginal Land Rights 425 First there are village sites . . . Second, there are cultivated fields, cultivated from the Tsilhqot’in perspective. These were the valleys and slopes of the transition zone used and managed by Tsilhqot’in people for generations that provided them with root plants, medicines and berries. Third, by a well defined network of trails and waterways, Tsilhqot’in people occupied and used the land, the rivers, the lakes, and the many trails as definite tracts of land on a regular basis for the hunting, trapping, fishing and gathering. This is the land over which they held exclusionary rights of control: Marshall; Bernard at para. 77. This was the land that provided security and continuity for Tsilhqot’in people at the time of sovereignty assertion: Sappier; Gray at para 33.526 (emphasis in italics added )

By equating ‘exclusionary rights of control’ over land as understood at common law with land that provided ‘security and continuity’ for Tsilhquot’in people under the ‘integral to the distinctive culture’ test,527 Vickers J (re)interpreted McLachlin CJ’s occupancy standard for proving Aboriginal title so that he was able to consider the Aboriginal perspective on occupation of land.528 Nevertheless, because he considered himself bound by McLachlin CJ’s judgment, he did not go as far as LeBel J who subsumed the common law requirements for occupation under the Aboriginal perspective on occupation to reject the common law occupancy standard. He did, however, acknowledge the reality that Aboriginal title pre-dated sovereignty and that Aboriginal conceptions of occupation must be taken into account to reject the postage stamp approach: What is clear to me is that the impoverished view of Aboriginal title advanced by Canada and British Columbia, characterized by the plaintiff as a ‘postage stamp’ approach to title, cannot be allowed to pervade and inhibit genuine negotiations. A tract of land is not just a hunting blind or a favourite fishing hole. Individual sites such as hunting blinds and fishing holes are but a part of the land that has provided ‘cultural security and continuity’ to Tsilhqot’in people for better than two centuries.529

These comments were made in a lengthy section on ‘Reconciliation’ at the end of Vickers J’s judgment.530 Acknowledging that principles of reconciliation should govern the legal effect of Aboriginal title,531 he also recognised that ‘the actions of courts have the potential to diminish the possibility of reconciliation ever occurring’532 and that, ‘[i]n an ideal world, the process of reconciliation would take place outside the adversarial milieu of a courtroom’:533 through honourable negotiations.534 Nevertheless, seeing the   Tsilhqot’in Nation (n 284) [960].   R v Sappier; R v Gray 2006 SCC 54, [2006] 2 SCR 686 involved an Aboriginal right claim; Bastarache J delivered the reasons for McLachlin CJ, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. 528   Indeed, it has been suggested that Vickers J ‘may have characterized areas as Aboriginal title lands that would more appropriately be characterized as land subject to Aboriginal rights, such as the right to harvest various resources’: A Fung, A Giardini and R Miller, ‘A Decade Since Delgamuukw: Update from an Industry Perspective’ in M Morellato (ed), Aboriginal Law Since Delgamuukw (Aurora, Ont, Canada Law Book, 2009) 205, 259. 529   Tsilhqot’in Nation (n 284) [1376]. 530  ibid [1338]ff. See K McNeil, ‘Reconciliation and Third-Party Interests: Tsilhqot’in Nation v British Columbia’ (2010) 8 Indigenous law Journal 7. 531   ibid [1363] referring with approval to Slattery’s ‘Principles of Recognition and Reconciliation’ in Slattery, ‘Metamorphosis of Aboriginal Title’ (n 409). See also discussion in ch 7 text to n 323ff. 532   Tsilhqot’in Nation (n 284) [1367]. 533   ibid [1357]. 534   It is clear from Vickers J’s judgment that his reference to negotiating Aboriginal title claims in an honourable way involves, to use Slattery’s words ((n 409) 282), ‘the full and unstinting recognition of the historical reality of aboriginal title, the true scope and effects of Indigenous dispossession, and the continuing links between an Indigenous people and its traditional lands’, while taking into account other relevant factors, especially ‘third party and public interests’: see ch 7 nn 322–29 and text. 526 527

426  Canada ‘Court’s role as one step’ in the reconciliation process’, Vickers J’s took the opportunity to decide issues that did not need to be decided so the parties were free to use the opinions he expressed in subsequent negotiations – including his rejection of the postage stamp approach.535 Indeed, he emphasised that ‘reconciliation cannot be achieved by the current process of translating an historical right into one that corresponds with a modern common law right’.536 And emphasising that the Tsilhqot’in Nation case served as an example of the conclusion that ‘such a process artificially constrains and distorts the true character of aboriginal title and risks compounding the historical injustices visited on Indigenous peoples’,537 he expressed the concern that ‘the conclusions [he was] driven to reach seem more “likely to exacerbate existing conflicts and grievances”’.538 Of greater concern, the British Columbia Court of Appeal in William v British Columbia539 disregarded Vickers J’s conclusion on the facts that there had been sufficient occupation of land to satisfy the Marshall/Bernard occupancy standard and thus establish Aboriginal title to a large area of British Columbia both within and beyond the claim area. iv  William v British Columbia The British Columbia Court of Appeal introduced a new element into the Aboriginal title debate which both cemented the postage stamp approach to Aboriginal title and allowed the Court to disregard Vickers J’s findings of fact as trial judge: the distinction between ‘site-specific’ and ‘territorial’ claims. In the context of establishing Aboriginal title, the significance of the distinction is that ‘[a] territorial claim for Aboriginal title does not meet the tests in Delgamuukw and in Marshall; Bernard’;540 ‘Aboriginal title must be demonstrated on a site-specific rather than territorial basis’.541 And, writing for the Court, Groberman J542 characterised the Tsilhqot’in claim as territorial.543 He noted that the Tsilhqot’in did not suggest that they ‘physically occupied the entire Claim Area, either at all times or seasonally’;544 rather, they lived in various encampments in the Claim Area at different times . . . They hunted, trapped and fished at various places, some of which are in the Claim Area. On a seasonal basis, groups would transit over trails covering most regions of the Claim Area.545   Tsilhqot’in Nation (n 284) [1375], [1376].   ibid [1365] referring to Slattery, (n 409) 281. 537   ibid. 538   ibid. See also ibid [1373] where Vickers J’s stated: ‘I confess that early in this trial, perhaps in a moment of self pity, I looked out at the legions of counsel and asked if someone would soon be standing up to admit that Tsilhqot’in people had been in the Claim Area for over 200 years, leaving the real question to be answered. My view at this early stage of the trial was that the real question concerned the consequences that would follow such an admission. I was assured that it was necessary to continue the course we were set upon. My view has not been altered since I first raised the issue almost five years ago’. 539   William v British Columbia 2012 BCCA 285, [2012] 3 CNLR 333. For comment see S Young, ‘The Troubled Sequel: Canadian Aboriginal Title Revisited in the BC Court of Appeal’ (2012) 26 (10) Australian Property Law Bulletin 147. Leave to appeal from the judgment of the Court of Appeal for British Columbia to the Supreme Court of Canada was granted on 24 January 2013: William v British Columbia 2013 SCC Case No 34986 (LeBel, Karakatsanis and Wagner JJ). 540   William (n 539) [219]. 541   ibid [224]. 542   Levine and Tysoe JJ concurring. 543   William (n 539) [218], see also [217], [214]. 544   ibid [214]. 545  ibid. 535 536



Tenure, Radical Title and Aboriginal Land Rights 427

The Tsilhqot’in said that this type of presence amounted ‘to “occupation” for the purpose of claiming title, and allow[ed] a claim to title over the territory’.546 Groberman J also emphasised that the fact that the territory being claimed was ‘a fraction of the total area alleged to be the traditional territory of the Tsilhqot’in [did] not prevent the claim from being characterised [as territorial]’.547 Moreover, he relied on the Tsilhqot’in peoples’ statements that they ‘did not lead a “postage stamp” existence’ to underscore the territorial nature of their claim.548 In the context of disregarding Vickers J’s findings of fact, the significance of the distinction between ‘site-specific’ and ‘territorial’ claims is that it allowed the Court of Appeal to shift the focus from ‘the question of occupation’549 – which is ‘a question of fact, on which the findings of a trial judge must prevail’ (emphasis added)550 – to the ‘question of whether it is appropriate to determine title issues on a territorial rather than site-specific basis’551 – which ‘is an extricable issue of law’.552 Groberman J held that while Vickers J ‘did not articulate any clear test for sufficiency of occupation, it [was] evident that he considered that occupation could be determined on a regional or territorial basis’.553 It has been seen, however, that Vickers J’s clearly applied the Marshall/Bernard standard of occupation and on the facts held that the requisite occupancy stand­ard was met, inter alia, where land provided cultural ‘security and continuity’ as this equated with ‘exclusionary rights of control’ over land as understood at common law.554 Nevertheless, Groberman J held that the Court could review the correctness of Vickers J’s determination of Aboriginal title on a territorial rather than site-specific basis.555 And his conclusion that Aboriginal title ‘must be proven on a site-specific basis’556 allowed him to disregard Vickers J’s findings of fact regarding the existence of Aboriginal title and dismiss the ‘territorial’ claim. Groberman J explained that [a] title site may be defined by a particular occupancy of the land (e.g., village sites, enclosed or cultivated fields) or on the basis that definite tracts of land were the subject of intensive use (specific hunting, fishing, gathering, or spiritual sites).557

With respect to the latter, he cautioned that ‘more typically, such activities will found only claims to specific Aboriginal rights’558 not title. In all cases, ‘Aboriginal title can only be proven over a definite tract of land the boundaries of which are reasonably cap­ able of definition’.559 Moreover, it cannot be proven on a territorial basis ‘even if there is some evidence showing that the claimant was the only group in a region or that it attempted to exclude outsiders from what it considered to be its traditional territory’.560 Support for the view that Aboriginal title must be claimed on a site-specific basis included  ibid.   ibid [217]. 548   ibid [218]. 549   ibid [227]. 550  ibid. 551   ibid [229]. See also ibid [227]. 552   ibid [229]. 553  ibid. 554   See above text to n 527. 555   William (n 539) [230], [229]. 556   ibid [230]. 557  ibid. 558   ibid [224] referring to Marshall/Bernard. 559   ibid [230]. 560   ibid [220]. 546 547

428  Canada the Marshall/Bernard ‘equation of sufficient occupancy for Aboriginal title with the common law requirements to show title by virtue of possession’.561 However, the common law clearly allows for occupation (and thus possession) of land where title is uncertain – including land which lacks clearly-defined boundaries562 – and the common law standard of occupation can be established by evidence of exclusive control – including act/s of excluding outsiders.563 Indeed, if an Aboriginal group ‘was the only group in a region’ pre-sovereignty, the situation would come within the common law principle that land in respect of which no one else had a present interest could be acquired by occupancy.564 Furthermore, and perhaps more importantly for present purposes, the extent of Aboriginal occupation of land would ‘include not just land in actual use [by an Aboriginal group] at any given moment, but all land within [the group’s] habitual range’.565 Groberman J’s (re)interpretation of the Marshall/Bernard test, therefore, disadvantages and discriminates against Aboriginal people in two interrelated ways: application of the common law occupancy standard for establishing title denies the Aboriginal perspective on occupation of land and Aboriginal people are denied the opportunity to demonstrate occupation in accordance with well-established common law principles. They are subject to a more stringent common law standard of occupation than non-Aboriginal people. Groberman J’s distinction between ‘site-specific’ and ‘territorial’ claims also ensured he could substitute his own findings of fact in the application of the site-specific test. Unsurprisingly, he held that there was ‘no evidence to support occupation of most sites within the Claim Area’:566 ‘[e]xcept in respect of a few specific sites, the evidence did not establish regular presence on or intensive occupation of particular tracts of land’.567 However, because the ‘litigation was not structured so as to identify such specific sites as candidates for Aboriginal title’, he held that the ‘Tsilhqot’in should be entitled to pursue title claims to specific sites notwithstanding that the plaintiff’s territorial claim has been dismissed’.568 Moreover, he acknowledged that ‘the culture and traditions of a seminomadic group, like the Tsilhqot’in, depend on rights to use lands that extend well beyond the definite tracts that may be found to be subject to Aboriginal title’.569 This confirmed Vickers J’s observation in Tsilhqot’in Nation that the Marshall/Bernard occupancy standard means that Aboriginal title will never be co-extensive with an Aboriginal group’s traditional territory.570 And, as at trial, the Tsilhqot’in argued that requiring ‘intensive regular use of well-defined areas of land is to take a “postage stamp” approach to title [which] . . . fails to give effect to the Aboriginal perspective’.571   Ibid [225].   McNeil (n 14) 198. 563   ibid 204. 564   ibid 198. 565   ibid 204. 566   William (n 359) [226]. He held that the facts in William were ‘materially similar to Marshall;Bernard, and particularly to Marshall’: ibid. He observed: ‘I acknowledge the plaintiff’s arguments that there was more evidence presented in this case, that the trial was longer, and that the size of the claimed area was smaller. None of these facts, however, make this case materially different from Marshall. I also acknowledge that the traditions of the Tsilhqot’in were and are very different from those of the Mi’kmaq, as were the traditional seasonal migration patterns. Again, however, those differences are not material to the legal analysis of the case’. 567  ibid [215]. 568   ibid [241]. 569   ibid [232]. 570   ibid [554]. 571   ibid [210]. 561 562



Tenure, Radical Title and Aboriginal Land Rights 429

Although the Court of Appeal’s identification of ‘site-specific’ (as distinct from ‘territorial’) claims and the ‘postage stamp’ approach are clearly correlatives, the Court purported to justify the ‘limitation of Aboriginal title to definite tracts of land’ as being ‘in keeping with the purpose of s. 35 of the Constitution Act 1982 and the rationale for common law recognition of Aboriginal rights and title’.572 In particular, Groberman J argued that ‘[t]he fallacy . . . in the plaintiff’s characterization of the defendants’ positions as representing a “postage stamp” view of Aboriginal title is that it ignores the importance of Aboriginal rights other than title in protecting traditional culture and lifestyles’.573 It has been seen that by ensuring the common law perspective on occupation of land dominates the test for proof of Aboriginal title, both Lamer CJ in Delgamuukw and McLachlin CJ in Marshall/Bernard, maintained the distinction between Aboriginal rights and title. Groberman J went further; he minimised the import­ ance of Aboriginal title: Aboriginal title, while forming part of the picture, is not the only – or even necessarily the dominant – part. . . . The cultural security and continuity of First Nations can be preserved by recognizing their title to particular ‘definite tracts of land’, and by acknowledging that they hold other Aboriginal rights in much more extensive territories.574

Not only is Aboriginal title subordinated to other Aboriginal rights, it has been seen that Groberman J’s test for Aboriginal title places intolerable burdens on Aboriginal claimants by preventing them from demonstrating the required common law occupancy standard by well-established common law principles. Nevertheless, he suggests that the result for semi-nomadic First Nations like the Tsilhqot’in is not a patchwork of unconnected ‘postage stamp’ areas of title, but rather a network of specific sites over which title can be proven, connected by broad areas in which various identifiable Aboriginal rights can be exercised’ which ‘is entirely consistent with their traditional culture and with the objectives of s. 35.575

With respect, however, Groberman J’s reference to a ‘network of specific sites’ is merely semantics: the result is a clear endorsement of the ‘postage stamp’ approach to Aboriginal title which is entirely inconsistent with the Aboriginal perspective regarding land. While preserving the distinction between Aboriginal rights and title, the crucial aspect of Groberman J’s judgment is that by minimising the importance of Aboriginal title, he preserved the rights of the Crown and Canadians claiming title through the Crown. Indeed, he admitted that ‘[t]here is a need to search out a practical compromise that can protect Aboriginal traditions without unnecessarily interfering with Crown sovereignty and with the well-being of all Canadians’ (emphasis added).576 He also declared that his view of Aboriginal title and Aboriginal rights is ‘consistent with broader goals of reconciliation’ because ‘an overly-broad recognition of Aboriginal title is not conducive to these goals’.577 Groberman J’s cursory reference to reconciliation is to be contrasted with Vickers J’s lengthy analysis in Tsilhqot’in Nation578 which emphasised that ‘reconciliation cannot be achieved by the current process of translating an historical right into one   ibid [231].   ibid [234]. 574   ibid [237]. 575   ibid [238]. 576   ibid [239]. 577  ibid. 578   See above text to n 530; ch 7 text to n 323ff. 572 573

430  Canada that corresponds with a modern common law right’.579 It was seen in chapter seven that, for Vickers J, reconciliation requires ‘recognition of the historical reality of aboriginal title’ and must also ‘take into account a range of factors’ including ‘third party and public interests’.580 It was also seen that the principles of reconciliation identified by Vickers J govern the legal effect of recognising Aboriginal customary title to ensure that one grave injustice is not remedied by committing another.581 Although this means that the rights of Canadians claiming title through the Crown (even if invalid) cannot be ignored, they can also not be permitted to prevail over Aboriginal customary title. Aboriginal titleholders should, therefore, ‘receive replacement lands, or compensation for the loss of their Aboriginal title lands’ from the real wrongdoers – the governments.582 Groberman J relied on McLachlin CJ’s majority judgment in Marshall/Bernard583 and Lamer CJ’s majority judgment in Delgamuukw;584 ipso facto he regarded the source of Aboriginal title as prior occupation of land. The Court of Appeal’s decision in William is not, therefore, authoritative regarding the common law/pre-existing Aboriginal laws/ customs relationship source of Aboriginal title (both conventional and Aboriginal customary title). Indeed, LeBel J’s judgment in Marshall/Bernard has the most precedential value in this context and clearly recognised the territorial scope of Aboriginal claims to land – both physically and jurisdictionally. This is also the very essence of Aboriginal customary title. A test which is regarded as a ‘postage stamp’ approach to Aboriginal title by Aboriginal claimants and which, to use Vickers J’s words, will never be ‘co-extensive with any particular Aboriginal group’s traditional territory’,585 will not achieve reconciliation. The fact that an appellate court has now introduced the concept of ‘site-­ specific’ as opposed to ‘territorial’ claims to justify disregarding Vickers J’s findings of fact – as trial judge and after a 339-day trial over almost four and a half years –that there had been sufficient occupation of land to satisfy the Marshall/Bernard occupancy stand­ ard and establish Aboriginal title to a large area of British Columbia (both within and beyond the claim area) and instead conclude that the facts did not meet the threshold test enunciated in Marshall/Bernard except in respect of a few specific sites is also not conducive to reconciliation. What is clear from Tsilhqot’in Nation is that ‘[t]he time to reach an honourable resolution and reconciliation is with us today’.586 In other words (those of John Tait), it is time to establish an ‘honest dialogue’.587 And, ‘[i]f we wish to pursue an honest dialogue we have to be prepared for the consequences . . . truth, or the whole truth, is not known at the outset. It only emerges from the dialogue itself’.588 It has been seen that the doctrine of Aboriginal customary title addresses the reality of the consequences of the acquisition of sovereignty over territory occupied by Aboriginal   Tsilhqot’in Nation (n 284) [1365]. See above text to n 536.   See ch 7 text to n 322–23; Slattery’s ‘Principles of Recognition and Reconciliation’ quoted in Tsilhqot’in Nation (n 284) [1370], [1372]. 581   Ch 7 text to n 322. 582   McNeil, ‘Reconciliation and Third-Party Interests’ (n 530) 22, 23; ch 7 text to nn 339–40. 583   William (n 359) [197]ff. 584   ibid [220]ff. 585   Tsilhqot’in Nation (n 284) [554]. 586   ibid [1338]. 587   Borrows, ‘Creating an Indigenous Legal Community’ (n 479) 158 referring to JC Tait (Chair), A Strong Foundation: Report of the Task Force on Public Service Values and Ethics (Ottawa, Canadian Centre for Management Development, 1996) 3. 588  ibid. 579 580



Tenure, Radical Title and Aboriginal Land Rights 431

people but classified as settled for the body of law that applied in the newly acquired territory: it addresses the reality of accommodating Aboriginal title pre-dating sovereignty within the post-sovereignty legal regime and concomitant implications for the doctrine of tenure and the Crown’s title to land. This doctrine, therefore, provides the basis for establishing an honest dialogue. And LeBel J’s judgment, as authoritative on the source of the doctrine, supports its application in Canada. While LeBel J did not specify how Aboriginal title is accommodated within the post-sovereignty property system, his judgment made it clear that Aboriginal title is not simply a qualification to accepted theory: rather, like Aboriginal customary title, it requires reconsideration of concepts at the heart of Canadian theory of landholding. By expressly acknowledging the ‘factual and legal existence of aboriginal occupation [pre-Crown sovereignty]’,589 rejecting the classification of an inhabited territory as ‘terra nullius’,590 accepting ‘the validity of [Aboriginal] prior possession and title’591 and recognising that pre-existing Aboriginal title burdened the (radical) title which the Crown acquired upon assertion of sovereignty,592 LeBel J’s judgment made it clear that the body of law that applied upon acquisition of a legally inhabited colony was necessarily different than previously understood. The land in dispute in Marshall/Bernard was located in Nova Scotia and New Brunswick – colonies, which it has been seen, were regarded as settled for reception purposes despite the British Crown acquiring title to the colonies derivatively by conquest and cession from France.593 In this context, LeBel J’s judgment is important in two interrelated, but distinct, ways. First, on the basis that the colonies were settled, LeBel J’s judgment (like pre-Delgamuukw authority and Mabo) recognised a new class of settled colony at common law for reception purposes – an inhabited settled colony. According to the traditional classification of a settled colony, both Nova Scotia and New Brunswick would have been regarded as legally uninhabited and the feudal doctrine of tenure and associated dual-fiction of original Crown ownership and original Crown grant would have been received under the conventional doctrine of reception: there would have been no room for any concept of pre-existing Aboriginal occupation or Aboriginal occupation at the date of sovereignty upon which to base non-Crown derived Aboriginal title. Since the conventional doctrine of reception could not apply in an inhabited settled colony (at least in its application to land law) LeBel J’s judgment supports the application of a modified doctrine of reception pursuant to which settlement conferred an under­ lying (radical) title on the Crown and continuing pre-existing Aboriginal title was accommodated within Canadian land law which, by definition, does not include the feudal doctrine of tenure. Although not expressly referring to the doctrine of tenure ad veritatem and the ‘continuity’ limb of the doctrine of continuity pro-tempore, LeBel J’s analysis is nevertheless consistent with the way Aboriginal customary title is accommodated within the post-sovereignty property system. As foreshadowed by LeBel J, however, the post-sovereignty property system may be based on the common law or civil law.594 Notwithstanding the fact that Nova Scotia and   Marshall/Bernard (n 6) [132].   ibid [134]. 591   ibid quoting Hepburn (n 468) 79. 592   ibid [134], [135], [137]. 593   See above nn 18, 19. 594   LeBel J noted that ‘[i]t is very difficult to introduce aboriginal conceptions of property and ownership into the modern property law concepts of the civil law and common law systems’: Marshall/Bernard (n 6) [128]. 589 590

432  Canada New Brunswick were acquired by Britain derivatively by conquest and cession from France and thus have a bipartite colonial history, the applicable law in these provinces post-British sovereignty is the (restated) common law. Although McLachlin CJ’s leading judgment accepted the derivative title Britain acquired from France without question,595 the second important aspect of LeBel J’s judgment is that it signalled the significance of the bipartite history of a conquered/ceded colony in the context of accommodating Aboriginal title within the post-sovereignty legal regime: there is a distinction between ‘civil law and common law systems’596 in terms of how Aboriginal title is recognised by the post-sovereignty regime which is consistent with the external dimension of the doctrine of Aboriginal customary title. It is to this issue that we now turn. III  BIPARTITE COLONIAL CONTEXTS – QUEBEC AND ABORIGINAL TITLE

It has been seen that although many Canadian provinces and territories which received English common law were conquered/ceded colonies with bipartite histories (like Nova Scotia and New Brunswick), Quebec is the only conquered/ceded colony in Canada with a bipartite history which has a legal regime based on civil law rather than the common law.597 It was seen in chapter seven that the bipartite history of a colony is important in the context of the doctrine of Aboriginal customary title where the legal regime applying post-British colonisation is based upon the civil law: the external dimension of Aboriginal customary title is allodial and thus consistent with civil law.598 The Supreme Court of Canada has, however, made it clear that whether a civil or common law legal system applies post-British sovereignty is irrelevant in the context of recognising title under the conventional doctrine of Aboriginal title (and, indeed, all Aboriginal rights).599 What does this mean for LeBel J’s reference to the distinction between civil and common law systems in the context of recognising Aboriginal title? While it is clear that the two doctrines of Aboriginal title (conventional and customary) apply in inhabited settled colonies where the (restated) common law is introduced, they appear, prima facie, to be irreconcilable in the context of colonies with a bipartite history where civil law continues to apply post-colonisation (such as Quebec). It will be seen, however, that the rationales underlying recognition of Aboriginal customary title and conventional Aboriginal title in the bipartite colonial context are fundamentally the same. Where Britain acquired a colony that had previously been colonised by another nation which had introduced a system of civil law and the British Crown allowed the civil law to continue under the doctrine of continuity pro-tempore, application of the doctrine of continuity pro-tempore was qualified by the bipartite history of the colony to ensure that the doctrine of Aboriginal customary title automatically applied to protect Aboriginal property rights. This is because the Crown’s power to make new laws, recognise existing rights or extinguish them and create new rights in conquered/ceded colonies is subject to the fundamental principle that ‘undisputed’ property rights at the time of conquest/cession   McNeil (n 22) 167.   Marshall/Bernard (n 6) [128]. 597   Above text to nn 23–26. 598   Where English land law was introduced in toto in a conquered/ceded colony, the conquered/ceded people acquired a common law title to their land and concomitant protection from the Crown’s prerogative: see above n 67. 599   See below text to n 603ff. 595 596



Bipartite Colonial Contexts 433

cannot be unilaterally expropriated in the absence of statutory authority. And whether initially classified as a conquered, ceded or inhabited settled colony, pre-existing property rights are accepted as an incident of a territory that was inhabited when first colonised.600 Indeed, Aboriginal land rights in Quebec were also expressly recognised by the British Crown after it acquired sovereignty from France in the Royal Proclamation of 1763.601 In the context of Quebec, the qualification to the doctrine of continuity pro-tempore meant that, although the former civil (French) system of land law was retained, so much of English common law as necessary to ensure that the original Aboriginal inhabitants’ property rights were protected also applied. The doctrine of Aboriginal customary law title is, therefore, a distinctive body of English common law which applied automatically upon British acquisition of Quebec and became part of the law of Quebec. However, because only so much of English common law applied to protect Aboriginal property rights in the bipartite colonial context, the fact that the former system of law which was retained was a civil (French) system was significant for the external dimension of the title. Although Aboriginal laws/customs continue to operate within the internal dimension of Aboriginal customary title, the external dimension provides a normative structure which accommodates the title within the post-sovereignty legal system by concepts known to that legal system per se or its evolution. The two branches of the external dimension, tenure in ancient demesne and folkland, are known to the common law per se and English law during the common law’s evolution, respectively. They confer an inalienable fee simple estate and allodial title respectively. And since allodial ownership has its origins in civil law systems,602 it meant that the folkland branch of the external dimension of Aboriginal customary title applied upon conquest/cession in Quebec to confer a generic allodial title which did not differ from one Aboriginal group to another regardless of the specific content of the customary laws of each group. In R v Côté603�and the companion decision R v Adams,604 the Supreme Court of Canada held that the conventional doctrine of Aboriginal title applied in Quebec when Britain acquired sovereignty over the colony notwithstanding the continuation of French (civil) law as introduced by the previous colonising power.605 The argument that because French law did not embrace the principle of respect for Aboriginal property rights, the doctrine of Aboriginal title did not apply when Britain acquired the colony was rejected. In Côté, the basis of such rejection included that the doctrine of Aboriginal title was a necessary part of British sovereignty.606 In support of this finding, Lamer CJ (writing for   See ch 7 text to n 456.   See above n 24 and text. 602  2 Bl Comm 47, 104–05, 106; F Hargrave and C Butler, Notes on Lord Coke’s First Institute, Or Commentary Upon Littleton (London, Luke Hanfard & Sons (for E Brooke, W Clarke and Sons, W Reed and J Cooke, Dublin) 1809) 65a note 3; HS Maine, Dissertations on Early Law and Custom, Chiefly Selected from Lectures Delivered at Oxford (London, John Murray, 1883) 342–43. 603   R v Côté [1996] 3 SCR 139 (SCC). 604   R v Adams [1996] 3 SCR 101 (SCC). 605   Côté (n 603) [42]ff; Adams (n 604) [32]–[33]. 606   Côté (n 603) [49] (Lamer CJ for the majority). But see Lamer CJ’s comments at [50]: ‘However, I do not rely on such reasoning to reject the position of the respondent on the reception of French colonial law. Rather, I believe that the respondent’s submission is best addressed under the terms and purpose of the constitutional enactment of s. 35(1) of the Constitution Act, 1982’. What was important was that the purpose of s 35(1) ‘was to extend constitutional protection to the practices, customs and traditions central to the distinctive culture of aboriginal societies prior to contact with Europeans. . . . The fact that a particular practice, custom or tradition continued following the arrival of Europeans, but in the absence of the formal gloss of legal recognition from 600 601

434  Canada the majority)607 cited Slattery’s608 thesis that the doctrine of Aboriginal title is part of British colonial law which is introduced automatically into British colonies upon their acquisition, irrespective of the legal system applying prior to such colonisation and irrespective of whether English common law was introduced.609 Lamer CJ concluded that ‘the law of aboriginal title represents a distinct species of federal common law rather than a simple subset of the common or civil law or property law operating within the province’.610 In support of this conclusion, he referred to Roberts,611 where the issue was whether ‘the law of aboriginal title [was] a “law of Canada” within the meaning of s. 101 [of the Constitution Act 1867]’.612 Finding that ‘federal common law’ as well as ‘federal legislation can meet the description of a “law of Canada” within the meaning of s. 101’,613 the question became ‘whether the law of aboriginal title is federal common law’.614 And Wilson J (delivering the judgment of the Supreme Court) held that it was.615 The case involved a dispute between two Indian bands over which had the right to use and occupy the Quinsam Indian Reserve located in British Columbia – a settled colony in which English common law was received. Although the Supreme Court in Roberts held that the law of Aboriginal title is federal common law, it did not have to and did not clarify the effect of the application of that federal common law in the province of Quebec where civil law operates. The Roberts Court did, however, endorse the decision in Guerin which recognised that the source of Aboriginal title lies in the relationship between common law and pre-existing systems of Aboriginal laws/customs – the source of Aboriginal customary title. The doctrines of Aboriginal customary title and Aboriginal title are distinctive bodies of English and Canadian common law respectively which applied automatically upon British acquisition of a colony that had previously been colonised by another nation which had introduced a system of civil law and the British Crown allowed the civil law to continue. Thus, both doctrines ensure that the original Aboriginal inhabitants’ property rights are protected in bipartite colonial contexts from the date of British colonisation. The point of divergence lies in acknowledging the reality of the consequences of conquest/cession in a bipartite colonial context when accommodating Aboriginal property rights within the post-sovereignty legal regime. Although the Supreme Court of Canada has made it clear that the issue of Aboriginal title does not depend on whether the land in question was first colonised by Britain or France because the applicable law is the common law of Canada, the content of Aboriginal title – the right to exclusive use and occupation of land which was occupied the European colonizers, should not undermine the protection accorded to aboriginal peoples. Section 35(1) would fail to achieve its noble purpose of preserving the integral and defining features of distinctive aboriginal societies if it only protected those defining features which were fortunate enough to have received the legal approval of British and French colonizers’: Adams (n 604) [33] (Lamer CJ for the majority). See also Côté (n 603) [51]–[52] (Lamer CJ for the majority). 607   Lamer CJ and Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. 608   B Slattery, ‘Understanding Aboriginal Rights’ (1987) 66 The Canadian Bar Review 727, 757–58. 609   Côté (n 603) [49] citing Slattery, ‘Understanding Aboriginal Rights’ (n 608) 737–38. 610   Côté (n 603) [49]. 611   ibid referring to Roberts (n 255) 340. See also the views of the Canadian Royal Commission on Aboriginal Peoples in Partners in Confederation: Aboriginal Peoples, Self‑Government, and the Constitution (Ottawa, Royal Commission on Aboriginal Peoples, 1993) 20. 612   Roberts (n 255) 338. See also ibid 331. 613   ibid 339. 614   ibid 340. 615  ibid.



Conclusion 435

at sovereignty subject to an inherent limit on use – is inconsistent with both established common law and civilian concepts of ownership. Indeed, McNeil’s conceptualisation of the content of conventional Aboriginal title (based on Lamer CJ’s decision in Delgamuukw) addresses this problem in the context of established common law principles: positing an external and internal dimension of the title, the external dimension (which defines the titleholders rights vis-a-vis the post-sovereignty legal system) is based on the legal effect given to exclusive occupation by the common law. The external dimension is, however, subject to the same criticism as the Supreme Court’s approach vis-a-vis civilian principles. Because Aboriginal customary title is accommodated within the legal system imposed as a consequence of Crown sovereignty by concepts known to that legal system – whether based on the common law or civil law – it acknowledges the reality of the consequences of conquest/cession in a bipartite colonial context. Similarly, it appears that LeBel J’s reference to the distinction between civil and common law systems in the context of recognising Aboriginal title acknowledges this reality in the context of Aboriginal property rights in Quebec.

IV CONCLUSION

An alternative to the conventional reading of the pre-Delgamuukw Canadian Aboriginal title jurisprudence is open which supports the proposition that Aboriginal title is not based simply on occupation of land at the date the Crown asserted sovereignty. Rather, the jurisprudence establishes six key principles regarding the interrelated issues of the source and proof of Aboriginal title and the legal nature of the Crown’s radical title. First, establishing Aboriginal title requires proof of pre-sovereignty occupation of land pursuant to a system of Aboriginal laws/customs by which land was used in a meaningful way from the Aboriginal perspective (Guerin, Baker Lake, Calder). Secondly, evid­ ence – even if only meagre or admitted – of the existence of Aboriginal laws/customs by which land was used in a meaningful way is the threshold question (Baker Lake, Calder). Thirdly, there is a presumption that the title to land Aboriginal people had by virtue of their own systems of laws/customs before Crown sovereignty continued post-­sovereignty (Roberts, Guerin, Re Paulette, Hall J in Calder). Fourthly, where sovereignty is acquired over an inhabited settled colony the legal nature of the Crown’s title to land (its radical title) is different from the Crown’s title to land under feudal theory: it is a mere notional title, a bare legal title supporting the right to acquire and confer title, but not title itself (Roberts, Guerin, Baker Lake, Re Paulette, Calder). Fifthly, the doctrine of tenure that applies in Canadian colonies which were inhabited but classified as settled for reception purposes is different from the feudal doctrine (Guerin, Baker Lake, Calder). Sixthly, the source of Aboriginal title is the relationship between pre-existing systems of Aboriginal laws/customs and the common law (Roberts, Guerin, Baker Lake, Hall J in Calder). While Lamer CJ’s majority judgment in Van der Peet concerned Aboriginal rights, rather than Aboriginal title, it is consistent with the principles which emerge from the pre-Delgamuukw Aboriginal title jurisprudence. It also clarified the relationship between the common law and pre-existing Aboriginal laws/customs as the source of Aboriginal title. Aboriginal rights are based in traditional laws/customs, the same basis adopted for Aboriginal (native) title in Mabo. The relationship, identified in Mabo, between the

436  Canada Crown’s radical title (its common law title to land upon settlement of an inhabited colony) and the basis for Aboriginal title (pre-existing Aboriginal laws/customs) was endorsed by Lamer CJ. A fortiori, the rationale underlying the existence of the relationship was accepted. This addressed the reality of the consequences of the acquisition of sovereignty over an inhabited colony classified as settled for the body of law that applied in the colony. Because the conventional ‘settled colony’ classification regarded an inhabited colony as legally uninhabited for reception purposes, the feudal doctrine of tenure and dual-fiction of original Crown ownership and original Crown grant was received: there was no room for any concept of pre-existing laws/customs or pre-sovereignty occupation of land (whether in the context of Aboriginal rights or title). However, by recognising a new class of settled colony, an inhabited settled colony, a modified doctrine of reception applied pursuant to which the Crown acquired a radical title to land – a bare legal title – and pre-existing property rights were accommodated within the post-sovereignty property regime via the interrelated doctrines of tenure ad veritatem and continuity pro-tempore. The constitutional status of a settled inhabited colony and concomitant restated common law is also supported by Macfarlane JA’s leading judgment in DelgamuukwCA. And because the doctrine of reception was only modified in its application to land law in the context of an inhabited settled colony, the distinction – consistent with Wallace JA’s judgment in DelgamuukwCA – between settled and conquered/ceded colonies for the purpose of ascertaining the general law that is to govern a new colony was preserved. Crucially, the key principles which emerge from the pre-Delgamuukw Aboriginal title case law are ad idem with those underlying the doctrine of Aboriginal customary title. Despite the weight of pre-Delgamuukw authority supporting the relationship between pre-existing Aboriginal laws/customs and the common law as the source of Aboriginal title, the Supreme Court of Canada in Delgamuukw declared that the source of Aboriginal title is the prior occupation of Canada by Aboriginal peoples. The test for proof of Aboriginal title was, however, specified as occupation of land at the time the Crown asserted sovereignty: a test fundamentally and logically inconsistent with a title pre-dating Crown sovereignty. The Supreme Court decisions in Guerin and Roberts, which affirmed that Aboriginal title pre-dated colonisation and survived Crown sovereignty, were distinguished as suggesting a second source for Aboriginal title – ‘the relationship between common law and pre-existing systems of aboriginal law’. Nevertheless, Lamer CJ conflated the two sources in the context of proof of occupancy, concluding that both the common law and Aboriginal perspective on land should be taken into account. However, despite confirming that the ‘integral to the distinctive culture’ requirement (a crucial part of the test for Aboriginal rights) operated in the determination of proof of Aboriginal title, he subsumed this requirement under the occupancy requirement. Thus, the major distinction between the tests for identifying Aboriginal rights and Aboriginal title was that occupancy as determined by the common law was the decisive factor in establishing title. Focusing on the common law (rather than the Aboriginal) perspective on occupation of land ensured there was room for the established doctrine of Aboriginal rights. It also explained the significance of the requirement for proof of occupation at the date of sovereignty, not pre-sovereignty. Because proof of occupation at sovereignty is incongruous with a title pre-dating sovereignty, it emphasised post-sovereignty common law, rather than the pre-sovereignty Aboriginal, requirements for establishing



Conclusion 437

occupation. Paradoxically, however, when developing an inherent limit on the content of Aboriginal title which prevents the land from being used in ways that are incompatible with the Aboriginal relationship to the land on which the title is based, Lamer CJ relied solely on the Aboriginal perspective under the ‘integral to the distinctive culture’ test. By conflating the two sources of Aboriginal title for the purpose of proof of occupancy, Lamer CJ’s judgment represents a retreat from pre-Delgamuukw jurisprudence regarding proof of title based on Aboriginal laws/customs. Lamer CJ’s judgment also represents a retreat from pre-Delgamuukw acknowledgment of the reality of the body of law that applied when sovereignty was acquired over inhabited territory classified as settled for the purpose of the doctrine of reception. Despite pre-Delgamuukw jurisprudence supporting the proposition that the Crown’s radical title to land is a bare legal title – including Lamer CJ’s own judgment in Van der Peet – the feudal assumption that along with sovereignty the Crown in Canada acquired ownership of all lands re-emerged in his judgment. Apart from stating that Aboriginal title was a burden on the Crown’s radical title, Lamer CJ also offered no explanation as to how Aboriginal title was reconciled with the doctrine of tenure and accommodated within Canadian land law. He purported to simply add Aboriginal title as a qualification to accepted theory. However, pre-Delgamuukw case law had shown that this so-called qualification requires reconsideration of concepts at the heart of Canadian theory of landholding. By not challenging (or even referring to) the classification of an inhabited colony as settled for reception purposes, Lamer CJ avoided confronting the reality of the issue of the body of law that applied in such a colony. Moreover, Lamer CJ’s judgment signalled a return to the redundant ‘scale of social organisation’ mind-set by indicating that the feudal doctrine of tenure was received under the conventional doctrine of reception on the basis that the traditional ‘settled’ classification applied to a colony which, despite being factually inhabited, was regarded as legally uninhabited. Failure to clarify the law that applied when sovereignty was acquired over legally inhabited territory classified as settled prevented Lamer CJ from explaining in any coherent manner the source, content and proof of Aboriginal title. It also resulted in him prescribing legal principles which offend the common law, including the inherent limit on the content of Aboriginal title. Notwithstanding the problems with Lamer CJ’s judgment in Delgamuukw, by recognising a second source of Aboriginal title – the relationship between the common law and pre-existing Aboriginal laws/customs – and acknowledging that the laws of evid­ ence must be adapted to accommodate oral history evidence, his judgment supports application of the doctrine of Aboriginal customary title in Canada: a coherent trans­ national doctrine pursuant to which the interrelationship between the source, content and proof of Aboriginal title is organic. Lamer CJ’s statement of general principle that ‘the common law should develop to recognize aboriginal rights (and title, when necessary) as they were recognized by either de facto practice or by the aboriginal system of governance’616 not only provides further support for Aboriginal customary title, it is also consistent with the application of the first limb of the doctrine of common law Aboriginal customary title in Canada – pursuant to which Aboriginal customary rights acquired post-sovereignty and analogous to incorporeal hereditaments become the local common   Delgamuukw (n 2) [59].

616

438  Canada law. This has significant implications for Métis people in Canada whose existence not only post-dated the arrival of Europeans but (in some cases at least) also European sovereignty by providing an independent basis for common law rights to land, including title, based upon their customary rights to land acquired post-sovereignty. Because postsovereignty customary rights can only support ‘title’ (as opposed to rights less than title) to land which is not subject to other property rights when the customary rights are acquired, the acquisition of such rights is most important in the context of land before it has been granted by the Crown or appropriated to the Crown. Lamer CJ maintained a different rights/title distinction in Delgamuukw: the common law perspective on occupation of land distinguishing Aboriginal title from Aboriginal rights. Because the test for proof of Aboriginal customary title is based on pre-sovereignty Aboriginal laws/customs pursuant to which occupation of land was part of a system that utilised land in a meaningful way from the Aboriginal perspective, the rights/title distinction is dissolved. While this is the antithesis of McLachlin CJ’s leading judgment in Marshall/Bernard which (like Lamer CJ) preserved the rights/title distinction, McLachlin CJ’s judgment highlighted the fundamental problems inherent in adopting prior occupation as the source of Aboriginal title but specifying the test for proof as occupation at the time the Crown asserted sovereignty. Although acknowledging and emphasising that Aboriginal title ‘is based on pre-­ sovereignty aboriginal practices’, McLachlin CJ applied the prior occupation source of Aboriginal title based on occupancy at the time of sovereignty. On the question of the standard for determining occupation, she accepted the principle from Delgamuukw that the Court must consider both the Aboriginal and common law perspective. However, the fact that Lamer CJ’s test for proof of Aboriginal title subsumed the ‘integral to the distinctive culture’ test under the occupancy requirement was crucial. It meant that the common law concept of title was the appropriate translation for Aboriginal title; and it followed that the common law standard of occupation was appropriate to establish Aboriginal title. Pre-sovereignty Aboriginal practices had to amount to the kind of exclusive occupation that grounds title at common law. Because McLachlin CJ did not make any reference to Lamer CJ’s second source of Aboriginal title which acknow­ledged the pre-sovereignty Aboriginal perspective on occupation, by specifying the common law standard of occupation as the appropriate test for establishing Aboriginal title despite its pre-sovereignty origins, she denied the Aboriginal perspective in all cases. McLachlin CJ admitted that to confer title in the absence of evidence to satisfy the common law occupancy standard would ‘obliterate’ the distinction between Aboriginal title and Aboriginal rights. However, disregarding the Aboriginal perspective on pre-sovereignty occupation and title also effectively applies the concept of terra nullius to Aboriginal title claims.617 Indeed, LeBel J’s judgment in Marshall/Bernard recognised this and signalled the need to dissolve the distinction between Aboriginal title and rights. Because the consequence of rejecting the classification of an inhabited territory as terra nullius was acceptance of the validity of the prior possession and title of Aboriginal people, LeBel J was concerned that given the nature of land use by Aboriginal peoples, McLachlin CJ’s approach was too narrowly focused on common law concepts relating to property which would be 617  Although the doctrine of terra nullius is relevant at international law in deciding whether a state has acquired sovereignty by purported occupation, its common law counterpart, the ‘desert and uncultivated’ doctrine, is relevant at common law in determining the law which is to govern a settled colony: see above text to nn 11–13.



Conclusion 439

incompatible with the nomadic or semi-nomadic lifestyle of many First Nations. LeBel J’s judgment is important because it directly considered the source of Aboriginal customary title – the relationship between pre-existing Aboriginal laws/customs and the common law. While LeBel J regarded the two sources of Aboriginal title identified in Delgamuukw not as alternatives but as concurrent, by subsuming the prior occupation source under the common law/pre-existing Aboriginal laws/customs relationship source, the latter source prevailed. Accordingly, LeBel J’s decision has the most precedential value in the context of Aboriginal customary title. Crucially, by subsuming the prior occupation source under the common law/pre-­ existing Aboriginal laws/customs source, LeBel J effectively reversed Lamer CJ/McLachlin CJ’s test for proof of occupancy (which subsumed the ‘integral to the distinctive culture’ test under the occupancy requirement) so that Aboriginal conceptions of occupation (including territoriality) represent the appropriate occupancy standard. Proof of occupation is determined, not by physical occupation as understood by the common law, but by de facto and de jure pre-sovereignty use and occupation. Aboriginal laws/customs relating to use and occupation of land are, therefore, evidence of occupation for the purpose of establishing Aboriginal title. And, because Aboriginal law involves the exercise of jurisdiction, Aboriginal title has a jurisdictional component. Furthermore, while there are diverse Aboriginal patterns of land use, Aboriginal title gives rise to a generic title conferring ‘absolute use and enjoyment’ of the land – consistent with the external dimension of Aboriginal customary title conferring an inalienable fee simple or allodial title. Indeed, LeBel J’s explanation that ‘Aboriginal title has been recognized by the common law and is in part defined by the common law, but it is grounded in aboriginal customary laws relating to land’618 indicates that, like Aboriginal customary title, the title has an external generic dimension defined by the common law and an internal dynamic dimension defined by specific Aboriginal laws/customs which can be changed through exercise of the decision-making authority vested in the Aboriginal group. And LeBel J also made it clear that the body of law that applied upon acquisition of a legally inhabited colony is necessarily different than previously understood. The fundamental tenets of LeBel J’s analysis are, like the pre-Delgamuukw authorities, consistent with Aboriginal customary title. The point of his divergence relates to the burden of proving title. While he dismissed the Aboriginal title claims on the basis that the record in the courts below lacked the necessary evidentiary foundation, the fact that the record provided evidence of de facto pre-sovereignty Aboriginal occupation of the claimed land would have raised a presumption of Aboriginal customary title. When LeBel J’s judgment is (re)considered in light of the evidentiary principles from Delgamuukw – which support reliance on oral history evidence as well as the application of common law presumptions in proving Aboriginal title – its divergence from the doctrine of Aboriginal customary title is perceived rather than real. While LeBel J’s decision is most authoritative in the context of the common law/preexisting Aboriginal law relationship source of Aboriginal title, in Tsilhqot’in Nation Vickers J considered himself bound by the principles enunciated by McLachlin CJ – which were regarded as having signalled the end of large-scale Aboriginal title claims because the common law occupancy standard required effective control over definite tracts of land such as villages and small areas within their vicinity: referred to as the   Marshall/Bernard (n 6) [128].

618

440  Canada ‘postage stamp approach to Aboriginal title’ by the claimants in Tsilhqot’in Nation. Nevertheless, Vickers J concluded that evidence of seasonal semi-nomadic use of a broad land base was sufficient to establish Aboriginal title. The difference between Vickers J and McLachlin CJ’s judgments lies in what constitutes evidence of the required occupancy standard. By equating ‘exclusionary rights of control’ over land as understood at common law with land that provided ‘security and continuity’ for Tsilhquot’in people under the ‘integral to the distinctive culture’ test, Vickers J’s application of the common law occupancy test allowed him to consider the Aboriginal perspective on occupation of land. Despite this approach, Vickers J made it clear that the decision in Marshall/ Bernard stood ‘for the proposition that Aboriginal title is not co-extensive with any particular Aboriginal group’s traditional territory’.619 He also emphasised that ‘reconciliation cannot be achieved by the current process of translating an historical right into one that corresponds with a modern common law right’.620 The British Columbia Court of Appeal in William disagreed with Vickers J’s analysis of Aboriginal title and his views on reconciliation. By introducing the distinction between ‘site-specific’ and ‘territorial’ claims, the Court cemented the postage stamp approach to Aboriginal title. Aboriginal title must be proven on a site-specific basis; a territorial claim for Aboriginal title does not meet the tests in Delgamuukw and Marshall/Bernard. This meant that even if there was evidence showing that an Aboriginal group was the only group in a region or that it attempted to exclude outsiders from what it considered to be its traditional territory, Aboriginal title could not be proven on a territorial basis. It also meant that the Tsilhqot’in claim was characterised as territorial. The Court’s conclusions on what constitutes evidence of occupation pursuant to the common law standard re(interpreted) the Marshall/Bernard test to further disadvantage Aboriginal claimants by subjecting them to a more stringent common law standard of occupation than non-Aboriginal people. Application of the common law occupancy standard already denied the Aboriginal perspective on occupation of land, now it also prevented Aboriginal people from demonstrating the common law occupancy standard by well-established common law principles. The Court attempted to justify its conclusion that only ‘site-specific’ as distinct from ‘territorial’ claims can support Aboriginal title by minimising the importance of Aboriginal title as distinct from Aboriginal rights in protecting traditional culture and lifestyles. However, identification of ‘site-specific’ claims and the ‘postage stamp’ approach are (semantics aside) clearly correlatives and entirely inconsistent with the Aboriginal perspective on land. Moreover, it ensured that the rights of the Crown and Canadians claiming title through the Crown trumped the rights of Aboriginal people: the Court admitted that ‘[t]here is a need to search out a practical compromise that can protect Aboriginal traditions without unnecessarily interfering with Crown sovereignty and with the well-being of all Canadians’ (emphasis added).621 The Court also claimed that its view of Aboriginal title and Aboriginal rights is ‘consistent with broader goals of reconciliation’ on the ground that ‘an overly-broad recognition of Aboriginal title is not conducive to these goals’.622 This is the antithesis of the principles of reconciliation governing the legal effect of recognising Aboriginal customary title.   Tsilhqot’in Nation (n 284) [554].   ibid [1365]. 621   William (n 539) [239]. 622  ibid. 619 620



Conclusion 441

By relying on McLachlin CJ’s majority judgment in Marshall/Bernard and Lamer CJ’s majority judgment in Delgamuukw – which both applied the prior occupation source of Aboriginal title – the Court of Appeal’s decision in William did not directly consider the pre-existing Aboriginal laws/customs and common law relationship source of Aboriginal customary title. The pre-Delgamuukw jurisprudence and LeBel J’s judgment in Marshall/ Bernard are most authoritative on this source and support the application of the doctrine of Aboriginal customary title in Canada. Indeed, in accord with this doctrine, LeBel J not only recognised a new class of settled colony at common law for reception purposes – an inhabited settled colony – he also signalled the significance of the bipartite history of a conquered/ceded colony for how Aboriginal title is recognised within the post-sovereignty legal system: distinguishing between ‘civil law and common law systems’. While many Canadian provinces and territories were conquered/ceded colonies with bipartite histories, Quebec is the only such colony which has a legal system based on the (French) civil law rather than the common law. The reality of the consequences of conquest/cession in a bipartite colonial context where the post-sovereignty property regime is based on civil law is acknowledged by the external dimension of Aboriginal customary title: it provides a normative structure which accommodates the title within the post-sovereignty civil system by concepts known to that system. While both branches of the external dimension (folkland and ancient demesne) are known to the common law (per se or its evolution) and confer allodial and inalienable fee simple title respectively, since allodial ownership has its origins in civilian principles, the folkland branch of the external dimension applies upon conquest/cession of a colony where the former system of law which is retained is a civil system. In contradistinction, the Supreme Court of Canada in Côté and Adams held that conventional Aboriginal title did not depend on whether a territory was first colonised by Britain or France, and thus whether the common law or civil law applied, because the applicable law is the common law of Canada. The content of Aboriginal title – the right to exclusive use and occupation of land subject to an inherent limit on use – is, however, inconsistent with both established common law and civilian concepts of ownership. Moreover, in Côté, Lamer CJ relied upon the Supreme Court’s decision in Roberts to support his conclusion that the law of Aboriginal title represents federal common law. Because Roberts involved a dispute over land in British Columbia – a settled colony – the Court did not have to and did not clarify the effect of the application of Aboriginal title as federal common law in the province of Quebec where civil law operates. The Roberts Court did, however, endorse the decision in Guerin which recognised that the source of Aboriginal title is the relationship between common law and pre-existing systems of Aboriginal laws/customs – the source of Aboriginal customary title. Aboriginal customary title provides a coherent and structured approach to explaining the nature, content and proof of Aboriginal title to land. Rather than necessitating the invention of new and inherently inconsistent legal principles, it explains the interaction between established common law principles and Aboriginal laws/customs and confers a title which is congruent with Aboriginal laws/customs, the common law and civil law. And it applies in Canada, including Quebec.

Conclusions

B

Y REJECTING THE view that sovereignty conferred absolute beneficial ownership of all land on the Crown and holding that the Crown acquired only a radical title to all land, the High Court in Mabo1 undermined the basic assumption that had guided all Australian real property law since colonisation. Consequently, although the High Court confirmed that the doctrine of tenure is an essential principle of Australian land law, six members of the Court made it clear that the grundnorm of Australian land law is no longer the English, and thus feudal, doctrine of tenure; instead, it is the Australian doctrine of tenure – the doctrine of tenure ad veritatem – with radical title as its postulate.2 By acknowledging the Crown’s radical title, the Crown no longer represented the only source of title to land: native title, a title not derived from Crown grant, was accommodated within Australian land law. The legal nature of the Crown’s title to land in a settled colony, as it had previously been understood, was altered. Parliament’s acceptance of the High Court’s ruling in Mabo and the codification of the Mabo definition of native title in the Native Title Act 1993 (Cth) provides statutory recognition of a new source of title in Australian land law.3 Crucially, the Crown’s radical title provides the basis of the new system of land tenure in post-Mabo Australia which, in addition to native title, can accommodate Aboriginal customary law as a source of common law title to land: the doctrine of common law Aboriginal customary title. Under this doctrine, Aboriginal customary law can be a valid source of non-Crown derived common law title to land whether the existence of such title arose before or after Crown sovereignty. The doctrine has two limbs. Under the first, Aboriginal customary rights to land acquired after Crown sovereignty give rise to a common law title on the basis that Aboriginal customary rights analogous to incorporeal hereditaments become the local common law. Under the second limb, which is potentially most important, title to land acquired before Crown sovereignty pursuant to Aboriginal laws/customs continues post-sovereignty and is given the force of law by the common law: Aboriginal customary title. Aboriginal customary title is a distinctive body of common law which applies automatically upon acquisition of an inhabited settled colony, including Australia and the settled regions of Canada. It also applies where the British Crown was not the first colonising power to acquire a colony – a conquest and/or cession in a bipartite colonial context – including South Africa and the Canadian Province of Quebec.

  Mabo v Queensland (No 2) (1992) 175 CLR 1 (HCA).   See generally chs 1 and 3. 3   See ch 3 text to nn 361–66. 1 2



Conclusions 443 The key conclusions of this book can be summarised:

1. The Mabo High Court acknowledged that Australia was inhabited at the time of colonisation and rejected the common law classification of inhabited land as ‘desert and uncultivated’ (legally uninhabited) for the purpose of determining the system of law applicable upon settlement; it did not re-classify Australia as ‘conquered’ or ‘ceded’ rather than ‘settled’. Proceeding within a framework of general principles of municipal law, the Court rejected the concept of terra nullius in its application to questions of property at common law; it did not reject the international law doctrine of terra nullius in any sense of denying Australian sovereignty.4 Crucially, while accepting that Australia was settled, the High Court recognised a new class of settled colony – an ‘inhabited settled’ colony – and modified the doctrine of reception in its application to such a colony.5 2. The modified doctrine of reception replaced the three formerly distinct doctrines of reception, continuity and recognition. Contrary to the conventional doctrine of reception, the modified doctrine of reception includes the test for determining whether pre-existing land rights survive a change in sovereignty; a test which is itself a merged version of the conventional continuity and recognition doctrines: the doctrine of continuity pro-tempore. The doctrine of continuity pro-tempore has two limbs: under the continuity limb, there is a presumption that pre-existing property rights survive a change in sovereignty; under the recognition limb, the sovereign has power to validly extinguish the surviving rights.6 3. The distinction between settled colonies and conquered/ceded colonies for the purpose of ascertaining the general law that is to govern a new colony was preserved; the doctrine of reception was only modified in its application to land law in the context of an inhabited settled colony. Thus, like other settled territories, the common law of England applied as far as applicable; but unlike other settlements, the legal structure governing English land law did not apply. Rather than acquiring absolute beneficial ownership of all land, the Crown acquired only a radical title.7 The Crown’s radical title has two limbs: it is the ‘postulate of the doctrine of tenure’ and ‘a concomitant of sovereignty’. And the former limb allowed the Mabo Court to redefine the foundational doctrine of tenure; to define the Australian doctrine of tenure ad veritatem. 4. As the postulate of the doctrine of tenure ad veritatem, radical title enables the common law regime governing the doctrine of tenure to apply ‘to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant’.8 The doctrine of tenure has a limited role in Australian land law: only when the Crown exercises its power to grant an estate in land is such land brought within the tenurial regime. This represents the essential point of divergence between the Australian and English doctrines: under the doctrine of tenure ad veritatem the two-fold feudal fiction of original Crown ownership and original Crown grant does not apply.9 The fiction of original Crown grant has been rendered otiose   See ch 3 text to n 103ff. See also ch 1 text to nn 198–214.   See ch 3 text to n 264ff. 6   See ch 3 text to n 191ff. See also ch 3 text to nn 144, 313. 7   See ch 3 text to n 23ff. 8   Mabo (n 1) 48–49 (Brennan J); ch 3 text to n 27. 9   The two-fold fiction accompanying the English (feudal) doctrine of tenure is discussed in ch 1 text to nn 101–23. The post-Mabo position is considered in ch 3 text to n 19ff. 4 5

444  Conclusions and the fiction of original Crown ownership is no longer of universal application, having been replaced with the ‘fiction of original Crown ownership of land which has actually been granted by the Crown’.10 The crucial point is that the legal consequences that flow from the feudal character of the English doctrine of tenure no longer apply ipso jure in Australia: although the ‘postulate of the doctrine of tenure’ limb of radical title continues to assure the Crown of its paramount lordship over tenures created by Crown grant, it does so in new limited circumstances. Title to land is no longer exclusively derivative; all titles to land can no longer, theoretically, be traced back to a Crown grant. 5. It is in the context of the ‘postulate of the doctrine of tenure’ limb of radical title that Kent McNeil’s original common law Aboriginal title theory can no longer apply in the Australian land law context without appropriate qualification: McNeil suggested that the two-fold fiction accompanying the feudal doctrine of tenure could explain the Crown’s paramount lordship and the tenurial relationship between the Crown and the Aboriginal occupiers. If McNeil’s theory is qualified so as to no longer rely on the effect of the feudal doctrine of tenure, it could apply in inhabited settled colonies where the doctrine of tenure ad veritatem applies: Aboriginal title would arise from the common law consequences of occupation per se; the doctrine of tenure ad veritatem (which only applies to every Crown grant of an interest in land) would not be invoked.11 6. Pursuant to the modified doctrine of reception in the inhabited settled colony of Australia, settlement conferred a radical title on the Crown and pre-existing property rights were recognised as a result of the doctrine of tenure ad veritatem and the ‘continuity’ limb of the doctrine of continuity pro-tempore. Crucially, however, the Mabo Court limited its recognition of pre-existing land rights to native title. 7. The recognised pre-existing property rights of the inhabitants of a settled colony were not afforded the same protection as the pre-existing property rights of the inhabitants of conquered/ceded colonies: the Mabo Court held that native title was vulnerable to unilateral extinguishment by inconsistent Crown grant per se. This was due to two interrelated incidents of radical title as a ‘concomitant of sovereignty’. First, the ‘recognition’ limb of the doctrine of continuity pro-tempore applied immediately upon acquisition of sovereignty ensuring that the Crown had power to validly extinguish pre-existing rights. Secondly, the scope of the Crown’s prerogative power of extinguishment was held to depend upon the constitutional status of a colony. And, in contradistinction to conquered/ceded colonies (post-act of State) where pre-existing property rights are protected from the Crown’s prerogative irrespective of their source, the restraints on the Crown’s prerogative to grant land in inhabited settled colonies were held to apply only to interests deriving from Crown grant or otherwise secured by the common law.12 Thus, native title’s vulnerability to extinguishment by Crown grant flows from the fact that it is not a common law right. 8. The Mabo Court’s position on extinguishment in inhabited settled colonies perpetuates the discriminatory treatment Aboriginal inhabitants of settled colonies received   See ch 3 text to n 29.   See ch 3 text to n 326ff. 12   See ch 3 text to nn 275–81, 285–89. cf the objections to this aspect of the High Court’s decision: ch 3 text to nn 283–95; ch 8 n 7. 10 11



Conclusions 445

under the ‘desert and uncultivated’ doctrine. It is not supported by pre-Mabo authority or legal principle. Indeed, by acknowledging that the settled colony of Australia was inhabited, the High Court had the opportunity to reconcile the effect of colo­ nisation on pre-existing property rights in all inhabited colonies (irrespective of their colonial classification): to adopt the preferable rule which fully equates the Aboriginal inhabitants of a settled colony with the inhabitants of a conquered/ceded colony post-act of State in respect of their pre-exiting rights to land. Under the preferable rule, whether by the laws which the Crown allowed or established, all pre-existing property rights are protected from the Crown’s prerogative. McNeil’s original common law Aboriginal title theory is also directly relevant where English land law was introduced in toto in an inhabited colony: the holders of pre-existing rights obtaining good title according to the rules of the introduced common law.13 9. The High Court denied the preferable rule and maintained the distinction between ‘settled’ and ‘conquered/ceded’ colonies in terms of the legal status of pre-existing land rights: perpetuating the discriminatory treatment of inhabitants of settled colonies. Brennan J’s claim that the decision in Mabo equated ‘the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land’ is misleading; the purported equation only applying to presumptive recognition of the inhabitants’ land rights, not to extinguishment of those rights.14 Crucially, the Mabo Court’s position on extinguishment in the inhabited settled colony of Australia effectively accords the Crown permanent act of State power vis-a-vis native title.15 10. The Crown’s power to validly grant land in every part of Australia, including land subject to native title, confirms that the power to grant beneficial ownership is an incident of radical title (as a concomitant of sovereignty) rather than an incident of beneficial title. This distinction is crucial: it explains why the Court’s reason for rejecting defence counsel’s argument in A-G v Brown16 – that the Crown did not have any property in the waste lands of the colony of New South Wales – is distinguished post-Mabo. Although defence counsel argued that sovereignty was unquestionably in the Crown, beneficial ownership and the right to grant the same was denied. The assumption underpinning this argument was that if the Crown did not have beneficial ownership of land, the Crown could not grant the land: a view which has been unequivocally rejected by the High Court.17 11. Both authority and legal principle support the proposition that the requirement for the Crown to exercise its sovereign power before its underlying radical title converts to full beneficial ownership is not limited to land in respect of which pre-existing native title exists. Investiture of radical title creates no beneficial entitlement to the land to which it relates; it is no more than political or governmental power that enables the sovereign to grant interests in land or to appropriate ownership of land to itself. When the Crown acquired sovereignty over land in Australia it did not hold the land in demesne. Rather than acquiring a present proprietary title, the   See ch 3 text to n 228.   See ch 3 text to n 305. 15   Ch 3 text to n 279–81. cf the objections to this aspect of the High Court’s decision: ch 3 text to nn 283–95; ch 8 n 7. 16   Attorney-General (NSW) v Brown (1847) 1 Legge 312 (NSWSC). 17   See ch 4 text to nn 26, 60–67. 13 14

446  Conclusions Crown merely acquired a right to acquire and grant title, a right to acquire a present proprietary title and to hold in demesne. As a legal concept, radical title connotes a bare legal title sufficient merely to support the doctrine of tenure and the Crown’s right to acquire and confer title, but not title itself.18 12. A close analysis of the leading pre-Mabo Privy Council decisions on the nature of the Crown’s title to land subject to pre-existing Aboriginal title (St Catherine’s,19 Amodu,20 Southern Rhodesia,21 Nireaha Tamaki22) has shown that they are open to an interpretation which, contrary to the conventional view, supports the proposition that the Crown does not have a present proprietary estate underlying Aboriginal title. An alternative reading of the cases is also consistent with the proposition that radical title does not automatically confer absolute beneficial ownership of any land, irrespective of the presence of pre-existing rights, in a newly acquired terri­ tory.23 Indeed, in Southern Rhodesia, the Privy Council concluded that where sovereignty is acquired over territory where there is no issue of pre-existing title, there is no legal presumption in favour of the Crown’s title to the unalienated lands. Since the radical title of a former sovereign was not in issue in this case, it is particularly relevant in the context of the Crown’s title to an inhabited settled colony where the Crown’s radical title is not acquired from a former sovereign (like Australia).24 The inchoate nature of the Crown’s proprietary rights was also understood by members of the New Zealand Bench in Symonds.25 And it has been shown, by reference to formative American authority (Johnson,26 Cherokee,27 Worcester28), that the past confusion of international law and municipal law, sovereignty and property, has been the reason for concluding that the Crown holds the unalienated lands of an inhabited settled colony in demesne.29 13. In Australian native title jurisprudence, radical title as ‘the postulate of the doctrine of tenure’ is merely a bare legal title sufficient to support that doctrine when the Crown has exercised its sovereign power to grant an interest in land. As ‘a concomitant of sovereignty’, radical title is merely the Crown’s power of alienation over the whole of the national territory: the right to acquire and confer beneficial title. Until the Crown validly exercises its sovereign power to create interests in land in itself or others, neither the Crown nor any person claiming a derivative title from the Crown has any beneficial interest in the land. The Mabo High Court’s obiter suggestion of a more generous interpretation of radical title – as conferring full and unfettered beneficial rights except to the extent of native title – was justified on the basis of two new legal fictions which the High Court created to replace the feudal fiction of ‘original Crown ownership’: the ‘no other proprietor’ and ‘reversion expectant’ fictions. There are a number of objections to these new legal fictions including that the   See chs 2, 3, 4 and 5.   St Catherine’s Milling and Lumber Co v R (1888) 14 App Cas 46 (PC). 20   Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 (PC). 21   Re Southern Rhodesia [1919] AC 211 (PC). 22   Nireaha Tamaki v Baker [1901] AC 561 (PC). 23   See generally ch 2. 24   See ch 2 text to nn 82–124. 25   R v Symonds (1847) [1840–1932] NZPCC 387 (NZSC). See ch 2 text to nn 200–44. 26   Johnson v M’Intosh 21 US 543 (1823) (USSC). 27   Cherokee Nation v Georgia 30 US 1 (1831) (USSC). 28   Worcester v Georgia 31 US 515 (1832) (USSC). 29   See ch 2 text to n 127ff. 18 19



Conclusions 447

former is incorrect in law and contradicts the legal origins and purpose of radical title and that the latter is inconsistent with fundamental principles of post-Mabo native title jurisprudence.30 14. Radical title is only one aspect of the Crown’s sovereign powers, which are not limited to land. Australian courts (High Court and Federal) have drawn a four-fold distinction between the Crown’s title to: land; the intertidal zone; the territorial sea; and the Exclusive Economic Zone (EEZ) and continental shelf beyond the territorial sea. In respect of land, the Crown has a radical title;31 in respect of the intertidal zone, including the foreshore, there is a statutory extension of radical title32 and the Crown also has a radical title at common law,33 in respect of the territorial sea, the Crown has common law sovereign rights;34 and in respect of the continental shelf and EEZ, the Crown has ‘statutory sovereign rights’.35 The Crown’s title is, therefore, described in one of three ways depending on the area of land/sea: namely, ‘radical title’ or a statutory extension thereof; ‘common law sovereign rights’; or ‘statutory sovereign rights’. Nevertheless, the weight of authority confirms that, notwithstanding the classification of the Crown’s title to particular areas of sea/ land, the legal nature of the title is the same: a bare legal title.36 15. Although the above propositions reflect the common law position, the alienation of land in Australia is now governed by a statutory regime. The Crown’s radical title may, therefore, no longer be central to its powers to grant rights and interests in land; however, it remains central to characterising the nature of the Crown’s title to land. Crucially, the post-Mabo High Court’s treatment of the statutory definition of ‘Crown land’, being land over which the Crown has radical title, supports the common law interpretation of radical title as a bare legal title rather than beneficial ownership except to the extent of native title.37 The common law position is also supported by the High Court’s analysis of the policy and purpose of legislation relating to Crown land,38 and in particular statutory trespass provisions,39 as well as by the legislative provisions dealing with the constitutional power to legislate regarding Crown land.40 Whether at common law or pursuant to statute, the title which the Crown acquired to land in Australia upon assumption of sovereignty – radical title – did not, of itself, confer beneficial ownership of any land. Crown land will only become Crown property, when the Crown has taken appropriate steps to formally entitle itself to the land. 16. The conclusion that no present proprietary right vests in the Crown by operation of law in an inhabited settled colony has the practical consequence that the Crown’s title to any particular piece of land is a question of fact. Accordingly, Stephens CJ’s conclusion in A-G v Brown that the idea that ‘[the Crown] cannot acquire lands in   See ch 4.   Mabo (n 1); Wik Peoples v Queensland (1996) 187 CLR 1 (HCA). 32   Commonwealth v Yarmirr [1999] FCA 1668, (1999) 101 FCR 171 (FCAFC). 33   Gumana v Northern Territory [2005] FCA 50, (2005) 141 FCR 457; YarmirrFC (n 32). 34   Commonwealth v Yarmirr [2001] HCA 56, (2001) 208 CLR 1. 35   Commonwealth v WMC Resources Ltd [1998] HCA 8, (1998) 194 CLR 1; Akiba v Queensland (No 2) [2010] FCA 643, (2010) 270 ALR 564. 36   See ch 5 (sea); chs 3 and 4 (land). 37   Wik (n 31); Western Australia v Ward [2002] HCA 28, (2002) 213 CLR 1. 38   Mabo (n 1); Wik (n 31); Western Australia v The Commonwealth (1995) 183 CLR 373 (HCA). 39   Mabo (n 1); Wik (n 31); Ward (n 37). 40   See ch 4 text to nn 140, 149, 202, 236; ch 6 text to n 195ff. 30 31

448  Conclusions a newly settled country, by discovery, and the settlement of his subjects therein . . ., but must resort to the form of an “office” to give him title . . . scarcely [admits] of serious refutation’,41 no longer represents an accurate statement of the law.42 While the Crown can convert its radical title into beneficial ownership by a valid exercise of sovereign power (including acquiring title by occupancy), unless the Crown’s possession and title are original (as in the case of land acquired by occupancy) for the Crown to be in possession in the first place, it must have a recorded title. It is clear that the Crown has acquired title to some land in Australia by occupancy upon settlement and subsequently, but it is also clear that there remains land in respect of which the Crown has not acquired title to in this way. Acknowledgment of the Crown’s radical title has increased the circumstances in which a subject can be in possession before the Crown’s beneficial title accrues and thus the potential operation of the rule that where a subject is in possession when the Crown’s title accrues, the Crown’s title should appear of record. Where a subject disputing the Crown’s title is in possession of land before the Crown, the Crown’s title is not to be presumed; the Crown cannot be said to have a present proprietary estate or plenum dominium in land unless it can be shown that the Crown has appropriated the land to its own demesne by record. Historically, it was the function of the office of entitlement to give the Crown possession whenever lands were in the possession of a subject when the Crown’s title accrued.43    Native title is, however, in a particularly vulnerable position because, not being an institution of the common law, the rule that the Crown’s title should appear of record where a subject is in possession when the Crown’s title accrues does not apply to it – the Crown’s prerogative power to appropriate land from native titleholders and to unilaterally extinguish native title by inconsistent grant was exercisable without the necessity of an office of entitlement. Where, however, the party disputing the Crown’s title is in possession and has acquired a valid common law title when the Crown’s beneficial title accrues, that party is entitled to demand an inquest of office to show whether the Crown is entitled; the Crown’s title against them should appear of record. 17. The new system of land tenure in post-Mabo Australia recognises and accommodates rights to land pre-dating Crown sovereignty. Although the Australia High Court limited its recognition of such rights to native title, the modified body of law applying in the inhabited settled colony of Australia can also accommodate the doctrine of common law Aboriginal customary title. Under this doctrine, which has two limbs, Aboriginal customary law can be a valid source of non-Crown derived common law title to land whether the existence of such title arose before or after sovereignty. Importantly, while the jurisprudential underpinnings for this doctrine are consistent with the Crown’s radical title connoting a bare legal title to land, the doctrine of tenure ad veritatem and (in the context of the second limb) the doctrine of continuity pro-tempore, they are also consistent with the conventional views of the Crown’s radical title, the doctrine of tenure and the doctrine of continuity.44   A-G v Brown (n 16) 320.   See ch 6 text before n 195. 43   See especially ch 6 text to n 140ff. See also ch 6 text to n 120ff. 44   See ch 7 text to n 342–43. 41 42



Conclusions 449

   Under the first limb, Aboriginal customary rights to land acquired after Crown sovereignty give rise to a common law title on the basis that Aboriginal customary rights analogous to incorporeal hereditaments become the local common law. An examination of the relevant legal doctrine has shown that the High Court’s decision in Fejo45 is not authority for rights which have their origins in custom independently of Crown grant and amount to a local variation of the common law.46 And the High Court’s decision in Yorta Yorta47 is distinguished in the context of the first limb: Aboriginal customary rights to land created after sovereignty under this limb owe their origin and continued existence to the common law.48 While such customary rights can be acquired in respect of land whether or not it is subject to other property rights, due to the reasonableness requirement for a valid custom at common law, the content of such rights will necessarily be less than full ‘title’ in the context of land subject to other property rights. Aboriginal customary rights acquired in respect of unalienated land – land which has neither been granted by the Crown (and thus not been brought within the doctrine of tenure ad veritatem by post-­ sovereignty Crown grant) nor appropriated to the Crown – are, therefore, more important. Because substantial and novel rights would not be unreasonable where no other rights of property are affected, Aboriginal customs recognising an entitlement amounting to ownership of land can be acquired. Once customary rights have been acquired, they cannot be lost by disuse or abandonment and they can only be extinguished in the same way as any other common law rights.49   The second limb gives rise to the doctrine of Aboriginal customary title: title to land acquired before Crown sovereignty pursuant to Aboriginal laws/customs continues post-sovereignty and is given the force of law by the common law. Aboriginal customary title is a distinctive body of common law which applies automatically upon acquisition of an inhabited settled colony. The title is part of the colonial law determining the law which is to govern the new colony and becomes the common law. Because the title has its origins in pre-sovereignty Aboriginal legal/customary systems but is accommodated within the legal system imposed as a consequence of Crown sovereignty by concepts known to that legal system, its source is the relationship between pre-existing Aboriginal laws/customs and the common law. It also means that there is an internal and external dimension to the content of the title.50   Within the internal dimension, Aboriginal laws/customs continue to operate to define the rights and obligations of the titleholders inter se. The title is not fixed at the time of Crown sovereignty: the legal/customary systems of Aboriginal groups continue to evolve and adapt so that post-sovereignty Aboriginal land rights and the decision-making authority of Aboriginal groups are recognised. The external dimension defines and protects the title vis-a-vis the Crown and third parties by providing the normative structure which accommodates the title within the postsovereignty legal system. The common law applies at the time of Crown sovereignty to confer a generic title which does not differ from one Aboriginal group to another   Fejo v Northern Territory [1998] HCA 58, (1998) 195 CLR 96.   See ch 7 text to nn 64–85, 113. 47   Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58, (2002) 214 CLR 422. 48   See ch 7 text to n 116ff. 49   See ch 7 text to nn 79, 80, 123. See also ch 7 nn 272, 281–283 and text. 50   See ch 7 text to nn 247–48. 45 46

450  Conclusions regardless of the customary laws of each group. The external dimension has two branches: Aboriginal customary title can be accommodated post-sovereignty on the basis that the law relating to tenure in ancient demesne (a traditional exception to the feudal doctrine of tenure equivalent to an inalienable fee simple) or folkland (an allodial system of pre-feudal landholding) applies to land which is subject to preexisting title at sovereignty. By conferring a generic allodial or inalienable fee simple title, both branches of the external dimension confer absolute ownership of land for any purpose whatsoever subject to the qualification that it is inalienable other than to the Crown.51   Under the test for proof of Aboriginal customary title, pre-sovereignty Aboriginal occupation of land need only have been part of a system of laws/customs by which land was used in a meaningful way from the Aboriginal perspective: purposive occupation. The Aboriginal perspective is appropriate for determining what constitutes meaningful use of land because before the Crown asserted sovereignty there was no other perspective. Proof of the existence of pre-sovereignty laws/customs upon which purposive occupation is based is the threshold question and raises a presumption of Aboriginal customary title. There is no requirement to identify every element of the laws/customs or to identify the rights regarding land which are possessed under those laws/customs. There is also no requirement to prove con­ tinuity and/or constancy of laws/customs since sovereignty. The onus of proving title to particular land can be met by relying on oral evidence of the existence of presovereignty laws/customs pursuant to which land was purposively occupied and the common law presumptions and rules relating to proof of customs – whether or not the titleholders currently are, or continued post-sovereignty to be, in physical occupation of the land. Although a native title claim to certain land may not be supported on the basis of particular laws/customs, an Aboriginal customary title claim to the same land may be.52   Crucially, because Aboriginal customary title is a common law title, it can only be extinguished in the same way as any other validly acquired common law title; it is protected from interference by exercise of the Crown’s prerogative. Thus, while native title may be extinguished permanently by inconsistent Crown grant, the laws/ customs upon which the (extinguished) native title was based are capable of supporting an Aboriginal customary title claim. Moreover, because attempts by the Crown to grant third-party interests on land subject to Aboriginal customary title are invalid, principles of reconciliation govern the legal effect of recognising Aboriginal customary title to ensure that ‘one grave injustice is not remedied by committing another’.53 Aboriginal titleholders should ‘receive replacement lands, or compensation for the loss of their Aboriginal title lands’ from the real wrongdoers – the governments.54

  See ch 7 text to nn 133ff, 232–42.   See ch 7 text to n 249ff. 53   B Slattery, ‘The Metamorphosis of Aboriginal Title’ (2006) The Canadian Bar Review 255, 282; ch 7 text to n 322. 54   K McNeil, ‘Reconciliation and Third-Party Interests: Tsilhqot’in Nation v British Columbia’ (2010) 8 Indigenous law Journal 7, 23; ch 7 text to nn 339–40. 51 52



Conclusions 451

18. The doctrine of Aboriginal customary title is not limited to inhabited settled colonies; it also applies in conquered/ceded colonies with bipartite histories: where the British Crown was not the first colonising power to acquire a colony irrespective of whether the legal regime applying post-British colonisation is based upon the common law or civil law. Where a colony is initially acquired by conquest/cession, the doctrine of continuity pro-tempore applies post-act of State not only to pre-existing land rights but to all pre-existing legal rights and the ‘recognition’ limb of the doctrine means that, legislative expropriation apart, the acquiring sovereign has no power to extinguish pre-existing land rights.55 Where the British Crown acquires a colony that has previously been colonised by another nation – a subsequent conquest/cession – the doctrine of continuity pro-tempore is qualified by the bipartite colonial history of the territory to ensure that Aboriginal customary title, as a distinctive body of common law, applies automatically upon conquest/cession to protect the original Aboriginal inhabitants’ property rights.56   The doctrine of Aboriginal customary title recognises the reality of the consequences of conquest/cession in a bipartite colonial context when accommodating Aboriginal property rights within the post-sovereignty legal regime. Where a civil law system applied in a colony both before and after its acquisition by Britain – as in the case of civil Roman-Dutch law in South Africa – because allodial ownership has its origins in civil law, the folkland branch of the external dimension of Aboriginal customary title applies to confer a generic allodial title which does not differ from one Aboriginal group to another as the normative structure governing the specific Aboriginal laws/customs of each group which remain dynamic. The doctrine of Aboriginal customary title is consistent with both common law and civil law principles.57 19. The development of South African law to recognise Aboriginal customary title which is accommodated within the post-sovereignty legal regime as a generic allodial title which arises at sovereignty to provide a normative structure governing continuing Indigenous customary ownership – and which can be established by judicial application of presumptions relating to proof of customs – is not inconsistent with the South African Constitutional Court’s decision in Richtersveld.58 20. The doctrine of Aboriginal customary title applies in Canada, including Quebec – the only Canadian province/territory with a bipartite colonial history which has a legal system based on the (French) civil law rather than the common law. A close examination of the pre-Delgamuukw59 Canadian Aboriginal title jurisprudence has shown that the jurisprudence is open to an interpretation which, contrary to the conventional view, supports that proposition that Aboriginal title is not based simply on occupation of land at the date the Crown asserted sovereignty. Crucially, the key principles which emerge from the pre-Delgamuukw jurisprudence are ad idem with those underlying the doctrine of Aboriginal customary title:60 including that the doctrine of tenure which applies in Canadian colonies that were inhabited but   See ch 3 text to n 212, 245–46.   See ch 7 text to n 448ff; ch 8 text to n 597ff. 57   See ch 7 text in para accompanying nn 458–60. 58   Alexkor Ltd v The Richtersveld Community [2003] ZACC 18, 2004 (5) SA 460. See ch 7 text in para accompanying n 408ff. 59   Delgamuukw v British Columbia [1997] 3 SCR 1010 (SCC). 60   See ch 8 text to nn 257–61. See also ch 8 text to n 63ff. 55 56

452  Conclusions classified as settled for reception purposes is different from the feudal doctrine;61 that the legal nature of the Crown’s title to land upon acquisition of sovereignty of an inhabited settled colony (its radical title) is different from the Crown’s title to land under feudal theory – it is a mere notional title, a bare legal title supporting the right to acquire and confer title, but not title itself;62 that establishing Aboriginal title requires proof of pre-sovereignty occupation of land pursuant to a system of Aboriginal laws/customs by which land was used in a meaningful way from the Aboriginal perspective;63 and that the source of Aboriginal title is the relationship between pre-existing systems of Aboriginal laws/customs and the common law.64 While the Supreme Court’s judgment in Van der Peet65 concerned Aboriginal rights, not Aboriginal title, it clarified the relationship between the common law and preexisting Aboriginal laws/customs as the source of Aboriginal title by endorsing the relationship identified in Mabo between the Crown’s radical title (its common law title to land upon settlement of an inhabited colony) and the basis for Aboriginal title (pre-existing Aboriginal laws/customs) as well as the rationale underlying the relationship. The constitutional status of an inhabited settled colony and concomitant restated common law pursuant to a modified doctrine of reception is also supported by the majority of the British Columbia Court of Appeal in DelgamuukwCA.66 When the Supreme Court of Canada in Delgamuukw declared that the source of Aboriginal title is the prior occupation of Canada by Aboriginal peoples, pre-­ Delgamuukw authority supporting the relationship between pre-existing Aboriginal laws/customs and the common law as the source of Aboriginal title was distinguished as suggesting a second source for Aboriginal title. The Delgamuukw Court’s specification of the test for proof of Aboriginal title as occupation of land at the time the Crown asserted sovereignty is also fundamentally and logically inconsistent with a title pre-dating Crown sovereignty. And although the Court conflated the two sources of Aboriginal title in the context of proof of occupancy – concluding that both the common law and Aboriginal perspective on land should be taken into account – it subsumed the (Aboriginal) ‘integral to the distinctive culture’ test under the (common law) occupancy requirement so that the major distinction between the tests for identifying Aboriginal rights and Aboriginal title was that occupancy as determined by the common law was decisive in establishing title.67 Delgamuukw represents a retreat from the pre-Delgamuukw jurisprudence regarding proof of title based on Aboriginal laws/customs and from the preDelgamuukw acknowledgment of the reality of the body of law that applied when sovereignty was acquired over inhabited territory classified as settled for reception purposes. It purported to simply add Aboriginal title as a qualification to accepted theory despite pre-Delgamuukw case law showing that this so-called qualification required reconsideration of concepts at the heart of Canadian theory of landhold61   Guerin v R [1984] 2 SCR 335 (SCC); Baker Lake v Minister of Indian Affairs and Northern Development [1980] 1 FC 518 (Can FC); Calder v Attorney-General of British Columbia [1973] SCR 313 (SCC). 62   Roberts v Canada [1989] SCR 322 (SCC); Guerin (n 61); Baker Lake (n 61); Re Paulette (1973) 42 DLR (3d) 8 (NWTSC); Calder (n 61). 63   Guerin (n 61); Baker Lake (n 61); Calder (n 61). 64   Roberts (n 62); Guerin (n 61); Baker Lake (n 61); Hall J in Calder (n 61). 65   R v Van der Peet [1996] 2 SCR 507 (SCC). 66   Delgamuukw v British Columbia (1993) 104 DLR (4th) 470 (BCCA). See ch 8 text to nn 339–68. 67   See ch 8 text to nn 290–333.



Conclusions 453 ing. The Court’s failure to confront and/or clarify the law that applied when sovereignty was acquired over legally inhabited territory classified as settled prevented it from explaining in any coherent manner the source, content and proof of Aboriginal title and resulted in the prescription of legal principles which offend the common law.68 Notwithstanding the problems in Delgamuukw, the decision supports application of the doctrine of Aboriginal customary title in Canada in two ways: first, by recognising the source of Aboriginal customary title – the relationship between the common law and pre-existing Aboriginal laws/customs – and acknowledging that the laws of evidence must be adapted to accommodate oral history evidence. Secondly, by recognising the general principle that ‘the common law should develop to recognize aboriginal rights (and title, when necessary) as they were recognized by either de facto practice or by the aboriginal system of governance’.69 The latter is also consistent with the application of the first limb of the doctrine of common law Aboriginal customary title in Canada which has significant implications for Metis people by providing an independent basis for common law rights to land, including title, based upon customary rights to land acquired post-sovereignty.70 Nevertheless, the post-Delgamuukw Aboriginal title jurisprudence which endorsed the prior occupation source of Aboriginal title has exacerbated the fundamental problems inherent in Delgamuukw. In Marshall/Bernard,71 although McLachlin CJ’s leading judgment applied the prior occupation source based on occupancy at the time of sovereignty, it stressed that Aboriginal title ‘is based on pre-sovereignty aboriginal practices’ and interpreted the fact that the Delgamuukw test for proof subsumed the ‘integral to the distinctive culture’ test under the occupancy requirement to mean that the common law concept of title was the appropriate translation for Aboriginal title. It followed that the common law standard of occupation was required to establish Aboriginal title: pre-sovereignty Aboriginal practices had to amount to the kind of exclusive occupation that grounds title at common law. While this approach was justified to prevent ‘obliterating’ the distinction between Aboriginal title and Aboriginal rights, disregarding the Aboriginal perspective on pre-sovereignty occupation and title is tantamount to applying the ‘desert and uncultivated’ doctrine (the concept of terra nullius) to Aboriginal title claims. Moreover, by specifying the common law occupancy standard as the appropriate test for establishing Aboriginal title despite its pre-sovereignty origins and without making any reference to the second source of Aboriginal title identified in Delgamuukw – which acknowledged the pre-sovereignty Aboriginal perspective on occupation – the Aboriginal perspective was denied in all cases.72 In Tsilhqot’in Nation,73 Vickers J considered himself bound by McLachlin CJ’s common law occupancy test – referred to as the ‘postage stamp approach to Aboriginal title’ by Aboriginal claimants. And despite his application of the test allowing him to consider the Aboriginal perspective on occupation of land by   See ch 8 text to nn 334–36 and paras following n 368.   Delgamuukw (n 59) [59] (Lamer CJ for the majority). 70   See ch 8 text to nn 396–406. 71   R v Marshall; R v Bernard 2005 SCC 43, [2005] 2 SCR 220. 72   See ch 8 text to nn 409–53. 73   Tsilhqot’in Nation v British Columbia 2007 BCSC 1700, [2008] 1 CNLR 112. 68 69

454  Conclusions equating incidents of common law occupation with incidents of Aboriginal occupation, he emphasised that the decision in Marshall/Bernard stood ‘for the proposition that Aboriginal title is not co-extensive with any particular Aboriginal group’s traditional territory’74 and that ‘reconciliation cannot be achieved by the current process of translating an historical right into one that corresponds with a modern common law right’.75 The new element introduced by the British Columbia Court of Appeal in William,76 the distinction between ‘site-specific’ and ‘territorial’ claims, cemented the postage stamp approach to Aboriginal title.77 Aboriginal title must be proven on a site-specific basis; a territorial claim for Aboriginal title can never meet the tests in Delgamuukw and Marshall/Bernard irrespective of the evidence. The Court’s conclusion that a territorial claim will never constitute evidence of occupation re(interpreted) the Marshall/Bernard test to further disadvantage Aboriginal claimants by subjecting them to a more stringent common law standard of occupation than non-Aboriginal people: in addition to denying the Aboriginal perspective on occupation of land, the test also prevents Aboriginal people from demonstrating the common law occupancy standard by well-established common law principles. While the Court attempted to justify its conclusion by minimising the importance of Aboriginal title as distinct from Aboriginal rights in protecting Aboriginal lifestyles, the identification of ‘site-specific’ claims and the ‘postage stamp’ approach are clearly synonymous and entirely inconsistent with the Aboriginal perspective on land. Moreover, the Court’s approach ensured that the rights of the Crown and Canadians claiming title through the Crown trumped the rights of Aboriginal people claiming non-derivative title. While the Court claimed that its view of Aboriginal title and rights is ‘consistent with broader goals of reconciliation’ because ‘an overly-broad recognition of Aboriginal title is not conducive to these goals’,78 this is the antithesis of the principles of reconciliation governing the legal effect of recognising Aboriginal customary title. Because the William Court relied on McLachlin CJ’s leading judgment in Marshall/Bernard and Delgamuukw, it is not authoritative on the source of Aboriginal customary title. The pre-Delgamuukw jurisprudence and LeBel J’s judgment in Marshall/Bernard are authoritative on this source and support the application of the doctrine of Aboriginal customary title in Canada. LeBel J’s judgment is crucial: by directly considering the ‘relationship between pre-existing Aboriginal laws/customs and the common law’ source of Aboriginal title it has the most precedential value in the context of Aboriginal customary title. While the two sources of Aboriginal title identified in Delgamuukw were regarded as concurrent, rather than alternatives, by subsuming the prior occupation source under the common law/ pre-existing Aboriginal laws/customs relationship source, the latter source prevailed. The subsumption also effectively reversed the Delgamuukw/McLachlin CJ test for proof of occupancy so that Aboriginal conceptions of occupation (including territoriality) represent the appropriate occupancy standard. This signalled the need   Tsilhqot’in Nation (n 73) [554] (Vickers J).   ibid [1365]. See also ch 8 text to nn 526–38. 76   William v British Columbia 2012 BCCA 285, [2012] 3 CNLR 333. 77   See ch 8 text to nn 540–76. 78   William (n 76) [239] (Groberman J). See also ch 8 text to nn 577–82. 74 75



Conclusions 455 to dissolve the distinction between Aboriginal title and rights: given the nature of land use by Aboriginal peoples, an approach focused on common law property concepts is incompatible with the nomadic or semi-nomadic lifestyle of many First Nations.79 Not only are the fundamental tenets of LeBel J’s analysis consistent with the doctrine of Aboriginal customary title, but because the point of its divergence relates to the burden of proving title, when (re)considered in light of the evidentiary principles from Delgamuukw its divergence is perceived. And, in accord with this doctrine, LeBel J not only recognised a new class of settled colony at common law for reception purposes – an inhabited settled colony – he also signalled the significance of the bipartite history of a conquered/ceded colony for how Aboriginal title is recognised within the post-­sovereignty legal system: distinguishing between ‘civil law and common law systems’.80 A number of Canadian provinces and territories were conquered/ceded colonies with bipartite histories, but Quebec is the only such colony with a legal system based on the (French) civil law rather than the common law. Although the Supreme Court of Canada in Côté81�and Adams82 held that conventional Aboriginal title did not depend on whether a territory was first colonised by Britain or France (and thus whether the common law or civil law applied) because the applicable law is the common law of Canada, in Côté the Supreme Court’s decision in Roberts was relied upon to support the conclusion that the law of Aboriginal title represents federal common law. Because Roberts involved a dispute over land in British Columbia – a settled colony – the Court did not have to, and did not, clarify the effect of the application of Aboriginal title as federal common law in the Province of Quebec where civil law operates. The Roberts Court did, however, endorse the decision in Guerin which, like LeBel J, recognised that the source of Aboriginal title is the relationship between pre-existing systems of Aboriginal laws/ customs and the common law – the source of Aboriginal customary title. And the reality of the consequences of conquest/cession in a bipartite colonial context is acknowledged by the external dimension of Aboriginal customary title which provides a normative structure that accommodates the title within the post-sovereignty system by concepts known to that system: since the folkland branch of the external dimension confers a generic allodial title and allodial ownership has its origins in civilian principles, it applies upon British conquest/cession of a colony where the former system of law which is retained is a civil system, such as Quebec.83

The doctrine of Aboriginal customary title provides a coherent and structured approach to explaining the source, content and proof of Aboriginal title to land in inhabited settled colonies and conquered/ceded colonies with bipartite histories. Rather than necessitating the invention of new and inherently inconsistent legal principles, it explains the interaction between established common law principles and Aboriginal laws/customs and confers a title which is congruent with Aboriginal laws/customs, the common law and civil law.   See ch 8 text to nn 459–94.   See ch 8 text to nn 515, 589–96. 81   R v Côté [1996] 3 SCR 139 (SCC). 82   R v Adams [1996] 3 SCR 101 (SCC). 83   See ch 8 text to n 597ff. 79 80

456  Conclusions Any ‘retrospective’ test for Aboriginal title developed more than two centuries after Crown sovereignty to remedy the injustices caused by the fact that since sovereignty (and until the development of the retrospective test) Aboriginal claims to land were disregarded or denied must recognise that the title to land Aboriginal people had by virtue of their own laws/customs pre-Crown sovereignty continued post-sovereignty as substantive law without imposing additional non-Aboriginal requirements for its recognition. A requirement that Aboriginal title must translate into the common law conception of title and/or a requirement for continuity since sovereignty of Aboriginal occupation or laws/customs giving rise to Aboriginal title is not only discordant with remedying injustices caused by the acquisition of sovereignty, it commits another grave injustice: it ignores the tenacious persistence of Aboriginal people, despite dispossession and subjection to invasive and strong non-Aboriginal cultural influences, to retain their self-­identity and observe their laws/customs for decades, even a century, after sovereignty. In this context, it was properly conceded on the evidence in the Darug case84 that: [N]ative title did exist throughout much of the Sydney basin in 1788 . . . that there were elabor­ ate laws and customs which underpinned that native title, and that native title was most tenacious. It did not disappear in the immediate onslaughts in the 1790s or the early [nineteenth] century. It took 50 or 60 years at least before the tenacious group of Aboriginal law and native title lost sway . . . [It] lost sway because of the enormous loss of life brought about, largely through disease, but also through massacre and the like . . . [probably coupled with] the policies, even at that early stage, of trying to assimilate part Aboriginal people into the broader non-Aboriginal society.85

The Darug people clearly had title to the claimed land pursuant to their own laws/customs pre-Crown sovereignty. Nevertheless, in 2004 their native title claim was denied because they had ceased (because of the adverse effects of colonisation) to observe the laws/ customs which would otherwise have provided a basis for their claim. The imposition of post-sovereignty non-Aboriginal requirements in order to establish Aboriginal title which pre-dates Crown sovereignty is simply another way of disregarding Aboriginal claims to land. The facts of the Darug case would (and should) support an Aboriginal customary title claim. The time is overdue to redress the wrongs committed by colonisers of new territories and legitimised by the colonisers’ legal systems: for the former colonising powers to become pioneers in a new era of authentic justice.

  Gale v Minister for Land & Water Conservation for New South Wales [2004] FCA 374 (Darug case).   Darug case (n 84) [34]. See also ch 7 text to n 299.

84 85

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Index Aboriginal customary law/Aboriginal laws and customs see laws and customs Aboriginal customary title see common law Aboriginal customary title, limb two Aboriginal rights see rights/title distinction Aboriginal title:    alternative to see common law Aboriginal customary title   Australia see native title   Canada:     see also Calder; Canada; Constitution; Delgamuukw; Marshall/Bernard     Aboriginal perspective see occupation      common law right, 288, 316, 366, 388, 395      compensation, 110 n 207, 382 n 203, 385 n 232      content, 399, 407, 420, 434–5     continuity/constancy requirements see continuity/constancy requirements       see also occupation     Constitution Act 1982 see Constitution     evolution:       Calder and pre-Delgamuukw jurisprudence, 369–92, 433–4       Delgamuukw and beyond (modern jurisprudence), 393–432       pre-Calder jurisprudence, 368–9     exclusivity see occupation; proof     extinguishment see extinguishment      fiduciary duties, 385, 387 n 251, 387 n 255      inalienability, 313, 369, 378, 389 n 262      infringement and justification, 359, 359–60 n 7      inherent limit, 398, 399, 406–7, 434–5      integral to distinctive culture test, 390, 397–99, 407, 410, 411, 412 n 422, 419, 424–5     laws and customs see laws and customs     occupation see occupation      oral history, treatment as evidence see oral history, treatment as evidence      ‘postage stamp’ approach to, 423, 425, 426–30, 439–40, 453–4     pre-Delgamuukw jurisprudence reinterpreted, 368–92      private property and, 331–3, 351, 385 n 232, 429–30, 440, 454     proof, test for see proof     Quebec and, 432–5       see also bipartite colonial context/history; civil law     reconciliation and see reconciliation     rights/title distinction see rights/title distinction     Royal Proclamation (1763) see Royal Proclamation (1763)      scale of social organisation, 396, 405, 415, 437      self-government, 314 n 197, 393

     ‘site specific’ versus ‘territorial’ claims, 426–30       see also occupation      society, 383, 384, 396, 397, 405, 408, 412     source:       modern jurisprudence:         pre-Delgamuukw source distinguished, 394, 452         prior occupation, 366, 393, 394, 396, 405, 410, 411, 413–14, 416, 417, 419, 420, 423, 430, 436, 438, 441, 452, 453       pre-Delgamuukw, 386–8, 389, 394, 434, 436, 441, 452, 455     sui generis, 313, 387, 389, 394, 407, 413, 414      translation theory and, 359, 411–13, 426, 429–30, 438       see also Aboriginal title, conceptions of    common law doctrine, 366, 388, 395    conceptions of:     see also McNeil, Kent; Slattery, Brian      common law right defined internally by Aboriginal law, 313–14      common law right/translated right, 312–15      customary right rooted in Aboriginal law and customs, 311–12     sui generis right, 315–16       generic right, 99 n 113, 316       historical right, 99 n 113    defined, 288, 359, 390   New Zealand:     see also New Zealand     compensation, 110 n 207      divergent judicial opinion about recognition, 60–75     recognition, 60–7, 72–5      relationship with Treaty of Waitangi, 59    South Africa:     see also Constitution, South Africa; Richtersveld      similarities between Indigenous law ownership recognised in Richtersveld and, 344–46      whether part of South African law, 338–46, 347    United States:     compensation, 110 n 207      discovery, 52, 53–8, 371–2, 374       see also dominative code; pre-emptive code; sovereignty     early case law:       Marshall Court approach to, 52–8     recognition, 53, 374 absolute Crown ownership, feudal doctrine of see Crown; fiction, legal; feudalism; tenure, doctrine of

482  Index act of State:   see also sovereignty    acquisition of sovereignty and, 111, 111–12 n 204, 348 n 450    conquered and ceded colonies:      pre-existing rights can be abrogated by, 110 n 204, 111      can involve land and chattels, 110 n 204, 113 n 225     continuity pro-tempore, doctrine of, applies post-, 111, 122 n 265, 128–9, 140, 337, 347–8, 444, 451       see also continuity pro-tempore, doctrine of; prerogative, royal    defined, 111–12 n 214, 348 n 450    inhabited settled colonies, 92, 100     continuity pro-tempore, doctrine of, applies irrespective of, 122 n 265, 129, 337, 444       see also continuity pro-tempore, doctrine of; prerogative, royal      permanent act of State power vis-a-vis native title, 127, 141, 445        common law rights to land distinguished see prerogative, royal    not justiciable before municipal courts, 100, 110 n 204, 112 n 214    prerogative legislation distinguished, 111–12 actions see ejectment, action of; information of intrusion; monstraverunt, writ of; novel disseisin, assize of; right, little writ of; scire facias adverse possession see tenure, doctrine of, exceptions to Africa:   see also radical title    Privy Council decisions, 42–50, 101, 108, 114 n 229 Allen, John, 10–11, 14, 15, 309–10 allodial title:   see also folkland; tenure, doctrine of, exceptions to    civil law and, 349, 355, 367, 432, 433, 441, 451, 455    common law Aboriginal customary title and see common law Aboriginal customary title, limb two    defined, 12–13 n 43, 318    feudal title distinguished, 19 n 108, 20–1, 26, 32, 34, 66 n 233, 81, 134, 157, 181 n 232, 199 n 13, 318, 400    native title and, 93, 181 n 232, 310 n 155 Amankwah, HA, 290 n 33, 295, 295 n 59, 325 ancient demesne manors, 21–2, 308   see also tenure in ancient demesne Anglo-Saxon:   Kings:      Aethelbert, 13 n 49, 13 n 50, 15      Edward the Confessor, 22, 23 n 156, 308, 309      Edward the Elder, 10 n 15, 11, 14   landholding:     bookland (bocland) see bookland     folkland (folcland) see folkland     laenland see laenland

Aquitaine, Duchy of, 21 Australia:    common law Aboriginal customary title see common law Aboriginal customary title     see also continuity pro-tempore, doctrine of; modified doctrine of reception; radical title; tenure ad veritatem, doctrine of    constitutional status of:     before Mabo:        settled colony, 2, 30–1, 31 n 218, 34, 81     Mabo:       inhabited settled colony, re-classified as see inhabited settled colonies    ‘desert and uncultivated’ doctrine, applicability of see ‘desert and uncultivated’ doctrine    history of Aboriginal land rights before Mabo, 32–3   Mabo case see Mabo    native title doctrine see native title    reception of land law in the Australian colonies see reception of English law Australian Aboriginals:    nomadic, 30 n 212    scale of social organisation and see native title Bartlett, Richard, 38, 273 n 252, 322 n 259 Bennett, TW, 341, 346 n 442, 347 n 445 bipartite colonial context/history:   see also conquered and ceded colonies    Canada, 358–9, 362, 366, 431–2, 441, 455      Quebec, 358–9, 366–7, 432–5, 441, 451, 455    common law Aboriginal customary title and see common law Aboriginal customary title    defined, 5, 348, 432, 451    South Africa, 336 n 351, 337–8 Blackstone, William, 3, 23, 29 n 206, 51 n 131, 105, 107, 113 n 219, 245, 257, 293 n 48, 294, 308–9, 360 n 11 bona vacantia, 73, 162 n 102, 260 n 169 Bonyhady, T, 222 bookland, 10, 11–13, 14–8, 25, 309 borough English, 24 n 158, 302 Borrows, J, 320 n 248, 418 n 479 Bracton, Henry of, 22, 23 n 155, 308 n 135 British South Africa Company, 46, 64, 254 bundle of rights see native title Butt, P, 10 n 12, 16 n 80, 19 n 106 Cabot, John, 56, 57, 58 Calder:   see also Aboriginal title, Canada; Canada; Royal Proclamation (1763)   decision, 369–8   significance of:      Canadian Aboriginal land rights, 366, 370      common law Aboriginal customary title, 373–8 Canada:    Aboriginal title see Aboriginal title, Canada    common law Aboriginal customary title see common law Aboriginal customary title

    see also continuity pro-tempore, doctrine of; inhabited settled colonies; radical title; tenure, doctrine of; tenure ad veritatem, doctrine of    Constitution Act 1982 see Constitution    constitutional status of Canadian provinces and territories, 361–4     French colonies, 361–2       Quebec, 362         see also bipartite colonial context/history     settled regions, 361–2, 363–4   Delgamuukw case see Delgamuukw    history of Aboriginal land rights:     see also royal charters; Royal Proclamation (1763)     before Calder, 368–9     Calder and pre-Delgamuukw, 369–92     Delgamuukw and post-Delgamuukw, 393–432   Marshall/Bernard case see Marshall/Bernard    reception of land law in the Canadian provinces and territories see reception of English law     see also ‘desert and uncultivated’ doctrine Cape Colony, 336 n 356, 346 n 435, 347 n 445, 348, 349, 351 Carlisle, case of, 254 n 124 Case of Tanistry, 113 n 227, 113 n 228, 118–21, 290 n 33   importance of, 118, 121 cession see conquered and ceded colonies cestui que vie, 24, 157, 172 Ceylon, 115 n 230 Chalmers, G, 153 Charles II, 363–4 Chitty, J, 112–13, 124, 256, 257 n 147, 258 n 153, 258 n 154, 258 n 156 civil law:    Aboriginal title and, 342, 434–5, 441, 455    common law Aboriginal customary title and, 349, 350, 352–3, 355, 362, 367, 432–3, 434–5, 441, 451, 455     see also common law Aboriginal customary title    Quebec, 338 n 365, 359, 362–3, 366–7, 432–3, 441, 451, 455    South Africa, 288, 317, 337–8, 342, 349, 352–3, 355, 451 Coke, Edward, 298 n 74, 323 colonial charters see royal charters colonies, common law classification of:   see also conquered and ceded colonies; inhabited settled colonies; Mabo, settled colonies   conventional:     conquered and ceded, 29–30     settled, 29–30       ‘desert and uncultivated’ doctrine and see ‘desert and uncultivated’ doctrine       terra nullius, doctrine of, distinguished see terra nullius, doctrine of    determines law governing newly acquired colony, 29–30      acquisition of sovereignty distinguished see sovereignty

Index 483    inhabited settled colony as new class of settled colony see inhabited settled colonies   prerogative powers of Crown and see prerogative, royal common law Aboriginal customary title:    Aboriginal title distinguished, 322, 359–60, 410, 432, 434–5    applicability of, general:     see also bipartite colonial context/history; common law Aboriginal customary title, doctrinal underpinnings; conquered and ceded colonies; continuity, doctrine of; continuity pro-tempore, doctrine of; Crown; inhabited settled colonies; modified doctrine of reception; prerogative, royal; radical title; reception, doctrine of; tenure, doctrine of; tenure ad veritatem, doctrine of     conquered and ceded colonies:       bipartite colonial contexts, 336–8, 347–9, 354–5, 358, 432–3, 434, 435, 442, 451, 455         see also bipartite colonial context/history       British Crown as first colonising power distinguished, 336–7, 357 n 485     settled colonies:        inhabited settled colonies, 289, 306, 318, 319, 334–5, 353, 354, 358, 365–6, 442, 448–9, 455    applicability of, specific:     Australia:       limb one, 303–5, 442, 448–9       limb two, 306–10, 442, 448–9     Canada:        limb one, 409–10, 437–8, 442, 453        limb two, 388–92, 400–4, 407–9, 420–2, 423, 430, 431–7, 439, 441, 442, 451–2, 453, 454–5     South Africa:       limb one, 352–3, 442        limb two, 336–8, 347–52, 355, 442, 451    common law doctrine, 287–8, 289, 326, 353–4, 442, 449, 450    continuity, doctrine of and see common law Aboriginal customary title, doctrinal underpinnings   continuity pro-tempore, doctrine of, and see common law Aboriginal customary title, doctrinal underpinnings    doctrinal underpinnings, 306 n 125, 334–5, 354, 360, 378 n 163, 404 n 368    first limb of see common law Aboriginal customary title, limb one   limb one:      Aboriginal customary law rights analogous to incorporeal hereditaments, basis of, 289, 303–5, 319 n 244, 334 n 342, 353, 443, 449       as common law, 303, 305         see also custom in England       customary rights in the nature of incorporeal hereditaments generally see custom in England

484  Index common law Aboriginal customary title (cont):    limb one (cont):      Aboriginal customary law rights analogous to incorporeal hereditaments, basis of (cont):       Fejo distinguished, 292, 299, 303, 449       laws and customs see laws and customs     Aboriginal perspective, 305      common law right, 289, 291, 292, 304, 305, 353, 442, 449      content, 304, 305, 353, 449       see also rights/title distinction     continuity/constancy requirements, absence of/reduced see continuity/constancy requirements      defined, 289, 292, 303–4, 319 n 244, 353, 449      disuse or abandonment, 305, 353, 409, 449     extinguishment see extinguishment      Métis, importance of to see Métis (Canada)      private property and, 304, 305, 353, 449     proof see proof      protection, 305, 353, 409, 449      recognition of post-sovereignty Aboriginal rights to land, 289, 291, 292, 303, 304, 319 n 244, 334 n 342, 352, 353, 409–10, 449        pre-sovereignty rights not excluded, 304 n 121       Yorta Yorta distinguished, 292, 303, 449   limb two:      Aboriginal customary title, 306–352, 354–357      Aboriginal perspective, 307, 321, 326, 330, 355, 450      alienability and, 318, 319, 320, 326, 349, 354, 407, 433, 441, 450      common law right, 289, 324, 326, 330–1, 354, 442, 449, 450     compensation, 333–4      continuity/constancy requirements, absence of see continuity/constancy requirements     content:       conquered and ceded colonies with bipartite colonial histories and:         Quebec, 433, 435, 455         South Africa, 349–50, 451       external dimension, 307, 317–20, 326, 349, 354, 407, 433, 435, 441, 449–50, 451, 455         ancient demesne branch, 307, 317, 319, 326, 349, 354, 407, 433, 450           see also tenure in ancient demesne         folkland branch, 307, 317–18, 326, 349, 350, 354, 407, 433, 441, 450, 451, 455           see also folkland       internal dimension, 307, 319–20, 326, 349–50, 354, 356, 407, 433, 449      defined, 306–7, 320, 326, 354–5, 442, 449–50, 451      disuse or abandonment, 325, 355–6     exclusivity see occupation     extinguishment see extinguishment      identifiable group, 320, 321, 326–7     laws and customs see laws and customs      native title distinguished, 321–2, 324–31     occupation see occupation

     oral history, treatment as evidence see oral history, treatment as evidence      presumptive title, 321, 322, 329–30, 355, 356, 408, 423, 450       see also title, presumed from possession     private property and, 129 n 306, 307, 320, 331–4, 354, 356, 430, 449, 450     proof, test for see proof     purposive occupation see occupation      recognition of post-sovereignty rights, 156, 289, 291, 307, 319–20, 326, 334 n 342, 349–50, 353, 354, 360, 433, 442, 448, 449      recognition of pre-sovereignty rights, 156, 289, 291, 304 n 121, 306–7, 318, 319, 320–7, 329–30, 334, 353, 354, 355–6, 360, 442, 448, 449–50     reconciliation and see reconciliation      scale of social organisation and, 321 n 251     self-determination, 357     similarities to pre-Delgamuukw Canadian Aboriginal title jurisprudence, 329, 366, 388–90, 392, 396, 436, 451–2      source, 129, 142, 275 n 271, 285, 287–8, 290, 306, 318, 319, 320, 324, 334, 353, 354, 407, 420, 439, 441, 442, 448, 449, 453, 454, 455       see also laws and customs     sui generis, 324 n 277     system, 306–7, 319, 320–1, 354, 449    radical title and see common law Aboriginal customary title, doctrinal underpinnings     see also radical title   rights/title distinction see rights/title distinction     see also common law Aboriginal customary title, limb two, content, external dimension    second limb of see common law Aboriginal customary title, limb two    tenure, doctrine of, and see common law Aboriginal customary title, doctrinal underpinnings   tenure ad veritatem, doctrine of, and see common law Aboriginal customary title, doctrinal underpinnings common law classification of colonies see colonies, common law classification of compensation:    Australia (native title) see native title    Canada (Aboriginal title) see Aboriginal title, Canada    common law Aboriginal customary title see common law Aboriginal customary title, limb two    New Zealand, 110 n 207 conquered and ceded colonies:   see also act of State; Case of Tanistry; colonies, common law classification of    bipartite colonial context and see continuity protempore, doctrine of     see also bipartite colonial context/history    continuity, doctrine of, and see continuity, doctrine of

  continuity pro-tempore, doctrine of, and see continuity pro-tempore, doctrine of    Crown had legislative power, 111, 112    local laws continue until altered, 29–30, 108 n 191, 111, 130    prerogative powers of Crown      no power to extinguish pre-existing property rights see prerogative, royal       see also Case of Tanistry    recognition doctrine and, 99–100, 101–2 conquest see conquered and ceded colonies   see also Norman Conquest Constitution:   Canada:      Constitution Act 1982, 314 n 197, 359 n 4, 382 n 202, 385 n 232, 399, 429, 433–4 n 606       Métis and, 409 n 402   South Africa:      Constitution, 335 n 346, 343–4, 345–6, 347, 349, 359 continental shelf see sea areas   sea also radical title, meaning, as bare legal title continuity, doctrine of, 98–100, 101, 108    common law Aboriginal customary title and see common law Aboriginal customary title, doctrinal underpinnings     see also continuity pro-tempore, doctrine of continuity pro-tempore, doctrine of:   see also bipartite colonial context/history; conquered and ceded colonies; inhabited settled colonies; modified doctrine of reception; radical title; tenure ad veritatem, doctrine of    Australia, 107– 8, 121–2, 140, 255, 287, 343, 353, 443, 444, 448   Canada:      judicial support for, 388 n 257, 392, 401–4, 431, 435–6    common law Aboriginal customary title and see common law Aboriginal customary title    conquered and ceded colonies, 107 n 191, 108, 111, 117, 122, 129, 140, 335, 337, 343, 355, 451      applies to all pre-existing rights, 111, 113 n 225, 122, 140, 347–8, 451      bipartite colonial context and, 338, 348–9, 355, 432–3, 451       see also bipartite colonial context/history; civil law; common law Aboriginal customary title      British Crown as first colonising power, 337, 347–8, 355, 357 n 485, 451      same effect as conventional doctrine of continuity, 117, 337, 343, 402 n 353       see also prerogative, royal    defined, 107–8, 122, 140      continuity limb, 108, 117, 129, 131, 140, 287, 325, 355, 388 n 257, 392, 401, 431, 443, 444      recognition limb, 108, 109, 117, 129, 131, 140, 287, 401–2, 443, 444, 451       see also prerogative, royal

Index 485       extinguishment of native title and, 109–10, 131, 140, 287, 444    emergence of (Mabo), 107–8, 343      subsequent judicial citation/approval of, 216 n 150, 335 n 343, 386 n 244    inhabited settled colonies, 107–8, 121–2, 129, 140, 255, 287, 306, 337, 353, 443, 444      applies only to land rights, 122       see also inhabited settled colonies; modified doctrine of reception; radical title; tenure ad veritatem, doctrine of   South Africa:      judicial support for, 343, 345, 347 continuity/constancy requirements:    Australia (native title), 322, 324–5, 325–6, 327– 9, 330    Canada (Aboriginal title), 322 n 265, 359, 397–8, 406, 411    common law Aboriginal customary title:      limb one, absence of/reduced, 305, 325 n 282      limb two, absence of, 325, 326–7, 329, 330, 355–6, 360, 450 copyhold, 22, 23, 24, 27 n 186, 28, 308, 323 Crown:   see also act of State; Crown grants; Crown land; Crown proceedings; fiction, legal; information of intrusion; inquest of office; occupancy; prerogative, royal; sovereignty; tenure, doctrine of; tenure ad veritatem, doctrine of    cannot be dispossessed:     see also fiction, legal     England and pre-Mabo Australia, 278     post-Mabo Australia, 278    as lord paramount:     see also fiction, legal     England and pre-Mabo Australia, 19–20, 26, 33, 34, 158, 161–2, 249     post-Mabo Australia, 85–6, 90, 95, 102 n 145, 137, 140, 142–3, 157–8, 162, 166, 259, 260, 266, 269, 444    must prove its title, 259, 264     see also Crown, record requirement; entitlement, office of; information of intrusion; inquest of office; instruction, office of    original title to land:     see also sea areas     Australia before Mabo, 31–2, 34, 96       see also fiction, legal       occupancy versus feudal fiction, 31, 241–3         see also occupancy; tenure, doctrine of     Australia post-Mabo:        feudal fiction basis, 87, 157, 239, 283          see also radical title       occupancy basis, 152–3, 243–9     England, 18–20, 34, 96       see also fiction, legal    record requirement, 253–64, 447–8     see also Case of Tanistry; entitlement, office of; information of intrusion; inquest of office; instruction, office of

486  Index Crown (cont):    as universal occupant:     see also fiction, legal      England and pre-Mabo Australia, 26, 152, 243, 247, 249 n 78     post-Mabo Australia, 152, 243 Crown grants:    fiction of see fiction, legal    power to grant interests in land not dependent on ownership of land:     see also radical title      Australian authority, 155, 266 n 207, 284, 445      confusion of sovereignty and property distinguished, 39, 51–8, 60–7, 78      Privy Council authority, 49–50, 50 n 118, 73 n 280, 75, 78 Crown land:   see also radical title; Wik   Australia before Mabo:     Crown property distinguished, 273       see also demesne, Crown      statutory definition presupposed rather than conferred title, 265, 284   Australia post-Mabo:      statutory definition synonymous with radical title see radical title, meaning, as bare legal title   Canada before Delgamuukw:      Crown lands legislation, 271 n 235, 272, 372–6     Crown property distinguished, 379   Canada post-Delgamuukw:      synonymous with radical title, 415–6 Crown proceedings see information of intrusion; inquest of office; scire facias custom in England:    customary rights in the nature of incorporeal hereditaments:      development of common law by custom, 295–9       general custom and local custom distinguished, 294–5       legal requirements, 296–9        ‘time immemorial’, 293 n 51, 296, 302         presumptions relating to, 296      effect of disuse or abandonment, 298     extinguishment, 299      first limb of common law Aboriginal customary title and see common law Aboriginal customary title, limb one     generally, 292–5      incorporeal hereditaments proper and, 292–4      local common law, 293–5, 302, 303      prescription distinguished, 294 n 52, 299, 302     public rights distinguished, 299–302 customary law see laws and customs customary rights in the nature of incorporeal hereditaments see custom in England Delgamuukw:   Aboriginal title and see Aboriginal title, Canada    British Columbia Court of Appeal decision, 400–4    Canadian Supreme Court decision, 393–400, 404–10

   common law Aboriginal customary title and see common law Aboriginal customary title, applicability of, specific, Canada demesne:    Crown, 87, 120, 121, 157, 159, 162, 163, 164, 261    defined, 3 n 9 ‘desert and uncultivated’ doctrine:   see also colonies, common law classification of; Mabo; inhabited settled colonies; settled colonies   applicability of, historical:      reception of law in territories acquired by settlement, 29–30, 96, 244, 360–1, 438 n 617       see also reception, doctrine of; reception of English law       Australia pre-Mabo, 30, 34, 328       Canada, 361    common law doctrine, 29, 30, 96, 106 n 180, 124, 128, 138, 244, 360, 361, 415 n 453, 438 n 617, 443     terra nullius, doctrine of, distinguished see terra nullius, doctrine of   concept of terra nullius and, 30, 97, 105, 139, 352, 357, 443, 453    criteria for classifying land as uninhabited:      original (uninhabited in fact), 30, 360–1      extended (legally uninhabited), 30, 34, 360–1    international law counterpart see terra nullius, doctrine of   rejection of:      in Australia, an ‘inhabited settled’ colony, 30 n 214, 95, 98, 106, 124, 127, 128, 138–9, 158 n 83, 244, 352, 443       see also inhabited settled colonies; modified doctrine of reception     justiciable before municipal courts, 98, 112 n 214, 352 ‘desert and uninhabited’ see ‘desert and uncultivated’ doctrine discovery, acquisition of sovereignty by, 52–3   see also dominative code; pre-emptive code; Marshall Court approach to Aboriginal land rights doctrine of common law Aboriginal customary title see common law Aboriginal customary title doctrine of continuity see continuity, doctrine of doctrine of continuity pro-tempore see continuity pro-tempore, doctrine of doctrine of reception see reception, doctrine of doctrine of tenure see tenure, doctrine of doctrine of tenure ad veritatem see tenure ad veritatem, doctrine of Domesday book, 13 n 43, 19 n 106, 21–2, 308 dominative code, 52–3, 58, 247 n 69 dominium:    see also imperium/dominium distinction   directum, 151 n 27, 400 n 338   minus plenum, 163, 260

  plenum, 39, 40, 42, 51, 58, 150, 159, 161, 167, 169, 170, 177 n 213, 180, 190 n 289, 195, 210 n 103, 268, 368, 448 drenage, 21 Dutch East India Company, 336 n 352 easements see incorporeal hereditaments ecclesiastical tenures see tenure, doctrine of, exceptions to Edgeworth, Brendan, 142, 143 n 389 Edward IV, 294 ejection, action of, 24 n 159, 47 n 98, 278   see also fiction, legal eminent domain, 37 entitlement, office of, 253, 255, 256, 259, 262, 263, 264, 278, 285, 448   see also Crown, record requirement; inquest of office escheat, 20 n 119, 21, 26 n 178, 73, 74, 92, 142 n 383, 156 n 70, 162 n 102, 162 n 103, 172, 257, 258 n 153, 260, 308, 406 n 373    abolition of, 264 n 192 estates, doctrine of, 92, 161, 167    native title and, 161, 181, 185 Evatt, HV, 112 n 216 Exclusive Economic Zone see sea areas   see also radical title, meaning, as bare legal title extinguishment:    Australia (native title):     Crown grant, by:        common law lease, 170, 177, 177 n 213, 183, 184, 210 n 103       freehold or fee simple, 185–6, 216       leases in perpetuity, 175–7       mining leases, 190, 248 n 75        pastoral leases, 136, 148, 166–7, 170, 182, 265     Crown’s prerogative power and:       see also inhabited settled colonies; Mabo; prerogative, royal       limitation of non-derogation rule, 124         objections to limitation, 124–7, 360 n 7         permanent act of State power, 127, 141, 445       native title distinguished from rights derived from Crown grant, 123–4      ‘inconsistency of incidents’ test, 176, 177 n 213, 182, 183–4, 189 n 281, 192, 194       introduction of ‘double’ inconsistency test for sea, 198, 214–16     legislation, by:       resumption and vesting legislation, 267–9      Native Title Act 1993 (Cth), under see Native Title Act 1993 (Cth)      non-common law status of native title and, 1, 38, 127, 141, 147 n 3, 186, 234–5, 255, 285, 287, 330–1, 444, 448       see also native title     partial, 186–8     regulation distinguished, 135 n 338, 154 n 57, 229–30, 232, 248, 273 n 252    Canada (Aboriginal title), 372, 380–1, 382, 384, 389, 391, 401–2, 403, 433–4 n 606

Index 487    common law Aboriginal customary title:      limb one, 305, 353, 449      limb two, 331, 348–9, 356, 432–3, 450–1    fealty, 13, 26, 162 n 98 fee simple estate:   see also freehold estates    presumed from possession, 133     see also title, presumed from possession    tenure in ancient demesne and, 308–9, 319, 326, 349, 354, 407, 433, 441, 450     see also common law Aboriginal customary title, limb two feoffment, 22, 23 n 150, 308 feudal services, 19, 259,   see also fealty; tenure, doctrine of feudalism:   see also Crown, as lord paramount; tenure, doctrine of   Australia:     before Mabo, 28, 31     post-Mabo, 95       see also tenure ad veritatem, doctrine of; radical title, meaning, as bare legal title    England, 10, 13, 19–20, 27–8 fiction, legal:    of Crown grants:     England and pre-Mabo Australia, 1, 9–10, 19–20, 31, 33, 34, 86, 139–40, 443     post-Mabo Australia, 1, 82, 86, 94, 133, 139, 142, 246, 259, 266, 278, 304, 309, 401, 443       see also tenure ad veritatem, doctrine of    defined, 90, 266    in ejectment, 278    of original Crown ownership:     England and pre-Mabo Australia, 1, 9–10, 19–20, 31, 33, 34, 86, 139–40, 259 n 162, 443     post-Mabo Australia, 1, 82, 86, 89 n 50, 94, 133, 139–40, 142, 152, 158, 162–3, 173, 178, 194, 246–7, 249, 252, 259, 260, 265–6, 278, 283, 286, 304, 401, 443–4      replaced by new legal fictions (Australia), 3, 156, 194, 446–7       reversion expectant argument, 158–93, 194, 446–7        ‘no other proprietor’, 150–8, 194, 254, 446–7 fiduciary duties:    Aboriginal title and see Aboriginal title, Canada first limb of common law Aboriginal customary title see common law Aboriginal customary title, limb one fishing see native title   see also public rights (common law) Fitzroy, Governor Robert, 60 folkland, 10–11, 12, 14–18, 21, 34, 309–10   see also allodial title    common law Aboriginal customary title and see common law Aboriginal customary title foreshore and territorial seabed:    England and pre-Mabo Australia, 199

488  Index foreshore and territorial seabed (cont):   post-Mabo Australia see sea areas     see also radical title forfeiture, 20 n 119, 21, 73, 74, 92, 142 n 383, 162 n 102, 169, 176, 257, 260, 264 n 192, 308 Frankalmoign, 25–6, 27 n 184 freehold estates, 319 n 240   see also fee simple estate; seisin French law, 42, 316, 350 n 470, 362, 368, 433   see also bipartite colonial context/history; civil law gavelkind, 24 n 158, 118, 119, 302 Goebel, Julius, 245, 247 grants of land see Crown grants   see also radical title; royal charters Grey, Governor George, 60 Henry IV, 294 Henry VII, 57 Holdsworth, WS, 23, 24 n 158, 116, 257 n 144 Hudson’s Bay Company, 363–4, 380–1 inalienability see Aboriginal title, Canada; common law Aboriginal customary title; native title   see also folkland; tenure in ancient demesne incorporeal hereditaments, 20, 289, 291 n 38, 292–4, 300, 304    common law Aboriginal customary title and see common law Aboriginal customary title, limb one information of intrusion, 261–4, 278    proof, burden of, 262, 263 imperium/dominium distinction, 30, 37, 39, 45, 48, 50–5, 65, 76, 87, 131, 155, 157, 244, 248 n 75, 252, 341, 371, 376 n 156, 391, 446 inhabited settled colonies:   see also act of State; colonies, common law classification of; Mabo; modified doctrine of reception; prerogative, royal; tenure ad veritatem, doctrine of    Australia re-classified as, 106, 110, 128, 130, 139, 365, 392, 402, 443   Canada:      judicial support for classification, 374, 377–8, 381–2, 386, 389, 390, 391–2, 392 n 281, 401–4, 431, 435–6, 441, 455    common law Aboriginal customary title and see common law Aboriginal customary title   continuity pro-tempore, doctrine of, and see continuity pro-tempore, doctrine of    ‘desert and uncultivated’ doctrine and, 30 n 214, 95, 98, 106, 124, 127, 128, 138–9, 158 n 83, 244, 352, 443     see also ‘desert and uncultivated’ doctrine    English law and see modified doctrine of reception   native title and see native title    prerogative powers of Crown in see prerogative, royal    radical title and see radical title

   sovereignty over, acquired by occupation, 28, 29, 97, 105, 106, 138, 139, 351–2, 443     see also sovereignty; terra nullius, doctrine of   tenure ad veritatem, doctrine of, and see tenure ad veritatem, doctrine of Innocent III, Pope, 21 inquest of office, 239–40, 254–61, 264, 278–9, 285, 447–8   see also Crown, record requirement; entitlement, office of; instruction, office of   defined, 256   necessity for:     England and pre-Mabo Australia, 239, 257–8, 261, 263, 264, 278–9, 448     post-Mabo Australia, 255–6, 258–9, 261, 264, 278–9, 285, 447–8,       increased circumstances where necessary, 259, 448         see also seisin, abeyance of       native title exception, 255, 285, 448    traverse of, 256–7 instruction, office of, 256 international law:    acquisition of sovereignty, matter of see sovereignty    confusion with municipal law (sovereignty and property), 30, 37, 39, 50–5, 62–6, 68–72, 76, 131, 252, 371, 446     see also imperium/dominium distinction; radical title, meaning, as bare legal title    dominative code see dominative code    not justiciable before municipal courts, 29 n 204, 97, 100, 110 n 204, 112 n 214, 139, 351–2    pre-emptive code see pre-emptive code   terra nullius see terra nullius, doctrine of inter-se-temporal rule:   see also reconciliation; Richtersveld    common law Aboriginal customary title and, 334, 352    common law analogue to inter-temporal rule, 351–2     see also inter-temporal rule   defined, 352    recognition by South African Constitutional Court (Richtersveld), 334, 351–2 inter-temporal rule:   see also sovereignty    application to Western Sahara, 97 n 104, 351    defined, 28 n 195, 97–8 n 106, 351, 352 intertidal zone see sea areas   see also foreshore and territorial seabed, England and pre-Mabo Australia Inuit see Canada; Aboriginal title, Canada Ireland:    acquisition by Crown, 118     see also conquered and ceded colonies    effect of acquisition by Crown on pre-existing rights, 118–21     see also Case of Tanistry; prerogative, royal John, King, 21

laenland, 10, 14 n 63, 16–17, 18, 309 laws and customs:    Australia (native title):     continuity/constancy requirements and see continuity/constancy requirements      recognition by common law but not common law right see native title      source of native title and, 91 n 70, 288, 289, 307 n 133, 313–14 n 193, 327, 391       see also occupation   Canada (Aboriginal title):     modern jurisprudence:       see also Aboriginal title, Canada, integral to distinctive culture test       proof of occupation of land and see occupation       restrictive definition, 396–7        second source of Aboriginal title and, 394, 396, 405, 407, 413, 414, 416, 417, 419, 420, 423, 430, 436, 437, 439, 452, 453     pre-Delgamuukw jurisprudence:        proof of Aboriginal title and, 374, 377–8, 384, 388, 396, 435        source of Aboriginal title and, 384, 386–8, 389, 434, 441, 455    common law Aboriginal customary title:     limb one:       defined, 290        source of common law rights and/or title to land, 289, 303, 304, 305, 352, 353, 442, 449         see also rights/title distinction     limb two:        defined, 290, 306 n 127, 418 n 476       occupation and see occupation       proof, test for, and see proof        source of non-derivative common law title to land, 287–8, 289, 306, 354, 442, 449   South Africa:      constitutional recognition of, 343–4, 345, 349, 359       see also Constitution     defined, 335 n 346     Richtersveld, 335, 340, 343, 344, 345, 349 leasehold interests:   see also reversion    native title and see extinguishment, Australia (native title)    radical title and see radical title; reversion expectant argument leases in perpetuity, 175–7   see also extinguishment, Australia (native title) Lester, Geoffrey, 37–8, 42 n 47, 42 n 49, 63 n 223, 66, 67, 99, 100, 102, 107 n 189, 108 n 197, 109, 132, 249, 254 n 124, 255 n 133 lex loci, 38, 42 n 49 Lobengula, King, 46 lord paramount see Crown McNeil, Kent, 2, 19, 26 n 178, 37 n 13, 82–3, 89 n 52, 91, 91 n 70, 100, 108 n 191, 116 n 240, 117 n 241, 117 n 245, 122 n 265, 124 n 281, 125 n 285, 126, 129, 131 n 315,

Index 489 132–4, 140, 141, 187 n 274, 254 n 128, 255 n 130, 262 n 180, 262–3, 264 n 191, 286 n 1, 288 n 17, 304 n 119, 307 n 131, 311–17, 318, 320, 321 n 253, 322, 330 n 313, 332 n 324, 333–4, 354, 359–60 n 7, 384 n 220, 394 n 294, 394 n 295, 406, 416, 421, 422, 435, 444, 445    Aboriginal title jurisprudence, contributions to:      early, 100, 132–4, 321 n 253, 322        continued significance of, 2 n 7, 82 n 3, 82–3, 108 n 191, 122 n 265, 134, 140, 141, 321 n 253, 444, 445      judicial citation/approval of, 89 n 52, 91, 311, 322 n 265, 332 n 324, 394 n 294, 394 n 295, 406, 406 n 374, 421, 422      later, 100 n 119, 100 n 120, 116 n 240, 117 n 241, 125 n 285, 126, 129, 131 n 315, 304 n 119, 311–17, 322, 332 n 324, 333–4, 359–60 n 7, 384 n 220, 406       see also Aboriginal title, conceptions of    common law Aboriginal customary title and influence of, 2 n 7, 82 n 3, 100 n 119, 126, 311–17, 320, 321 n 253, 322, 354, 416, 435 Mabo:   see also continuity pro-tempore, doctrine of; ‘desert and uncultivated’ doctrine; fiction, legal; inhabited settled colonies; modified doctrine of reception; prerogative, royal; radical title; tenure ad veritatem, doctrine of; terra nullius, doctrine of    factual and legal context, 83–5    inhabited settled colony, Australia reclassified as see inhabited settled colonies      continuity, doctrine of, and see continuity protempore, doctrine of      Crown’s initial title to land and see radical title      Crown’s prerogative powers and see prerogative, royal       missed opportunity to reconcile effect of colonisation in all inhabited colonies, 128–30, 141–2, 287, 445      reception, doctrine of, and see modified doctrine of reception     recognition doctrine and see continuity protempore, doctrine of      tenure, doctrine of, and see tenure ad veritatem, doctrine of    native title and see native title    radical title and see radical title Magna Carta, 125 n 286, 204, 215, 216, 219, 220, 222, 254 n 129, 291 n 34 Maitland, FW, 10 n 9, 11 n 21, 12 n 42, 16, 16 n 85, 17, 17 n 93, 19 n 108, 20, 27 n 183, 37, 258 n 154, 310 n 152 manor see ancient demesne manors Marshall/Bernard:    LeBel J’s judgment, 416–23, 430, 431–2      common law Aboriginal customary title, support for, 420–2, 423, 430, 431–2, 435, 438–9, 441, 454–5

490  Index Marshall/Bernard (cont):    McLachlin CJ’s leading judgment, 411–16 Marshall Court approach to Aboriginal land rights see Aboriginal title, United States Mellifont, Treaty of (1603), 118 mesne lordship, 27, 133 Métis (Canada):   see also common law Aboriginal customary title, limb one    importance of application of first limb of common law Aboriginal customary title to, 409–10 Miriam people see Mabo modified doctrine of reception:   see also continuity, doctrine of; continuity protempore, doctrine of; inhabited settled colonies; Mabo; prerogative, royal; radical title; reception, doctrine of; reception of English law; recognition doctrine; tenure ad veritatem, doctrine of   applicability of:     inhabited settled colonies:        Australia, 82, 106–7, 121–2, 129, 130–1, 134, 135, 139–42, 255, 287, 306, 353, 365–6, 392, 402–3, 443–4       Canada:         judicial support for, 358, 389, 391–2, 401– 4, 431, 435–6, 452         judicial ambiguity, 404–6, 437, 452–3    common law Aboriginal customary title and, 306, 318, 319, 334, 353, 354, 365–6    English law and:     see also reception of English law     general English law and English land law distinguished:       English land law did not immediately apply, 107, 122, 127, 129, 130–1, 139–42, 255, 287, 306, 353, 365, 392, 402–3, 443–4       general English law applied, 122, 139, 142, 353, 365, 402, 443   native title and, 130–1, 139–40 , 255, 287, 353, 365–6, 444     see also Mabo; native title   overview, 443–4   reception, doctrine of, distinguished see reception, doctrine of monstraverunt, writ of, 22, 22 n 145, 308 n 136, 308 n 137 Mostert, H, 342 Murray Islands see Mabo native title (Australia):   see also Australia; Mabo; Native Title Act 1993 (Cth)    bundle of rights, 187, 325, 391 n 271    content, 84, 288, 326 n 286, 391, 391 n 271    continuity/constancy requirements see continuity/ constancy requirements    compensation, 110, 110 n 207    defined, 84, 288   extinguishment see extinguishment

   inalienable, 131–2, 252–3    laws and customs see laws and customs    not common law right, 1, 38, 91 n 72, 127, 131, 141, 147 n 3, 181 n 232, 186, 234–5, 252, 255, 285, 287, 289, 330–1, 444, 448     see also extinguishment      recognition conditional, 290–1, 298, 404 n 363   occupation see occupation    oral history, treatment as evidence see oral history, treatment as evidence    presumptions relating to proof see proof    proof, test for see proof    rights/title distinction see rights/title distinction    rights to sea areas see sea areas      objections to non-recognition of exclusive native title rights to the sea, 215–20 , 222–3    scale of social organisation, 106, 306 n 129, 321 n 251    society, 322 n 259, 326, 327–8    source, 91 n 70, 288, 289, 307 n 133, 313–14 n 193, 327, 391     see also occupation    specific native title rights:     fishing, 224, 229–32   sui generis, 123    system, 303, 326 Native Title Act 1993 (Cth), 138–9, 191–3   see also native title    definition of native title, 138     statutory basis for tenure ad veritatem, doctrine of, 138, 139       see also tenure ad veritatem, doctrine of    extinguishment of native title under, 191–3   preamble, 138–9     see also ‘desert and uncultivated’ doctrine; terra nullius, doctrine of natural law, 24, 29 n 200, 107, 127 n 298, 244 navigation see public rights (common law) nemo dat quod non habet, 24 n 160, 128 New Zealand:   see also Waitangi, Treaty of (1840)    Aboriginal land rights see Aboriginal title, New Zealand    constitutional status, 59, 75    Crown’s title to land subject to Aboriginal title see radical title, meaning, as bare legal title Nisga’a Indians see Calder nomadic/semi-nomadic peoples, 30 n 212, 351, 411, 414, 416, 418, 419, 421, 424, 428–9, 439, 440, 455   see also Australian Aboriginals Norman Conquest:    effect of, 18–20, 34–5, 308 Normandy, Duchy of, 21 novel disseisin, assize of, 28 nuda proprietas, 163, 260 nulle terre sans seigneur, 19, 20   see also tenure, doctrine of

occupancy, common law doctrine of:    acquisition of land by, 24, 24 n 164, 26, 66 n 233, 81, 126 n 290, 156–7, 239–53, 255–6, 261, 275, 283–4, 448      acquisition of sovereignty by distinguished, 30, 96–7, 244, 361, 438 n 617       see also sovereignty; terra nullius, doctrine of   defined, 244–5   requirements, 245    Crown’s original title to land by:     see also fiction, legal     Australia:       before Mabo, 31, 241–3       post-Mabo, 152–3, 243–9    subject’s acquisition of title to land by:     Australia:       before Mabo 24 n 164, 26, 156, 249, 261, 284       post-Mabo, 156, 249–53, 255–6, 261, 275, 284, 448    general occupant, 24 n 162, 421    occupation distinguished, 133, 322, 394, 406, 406 n 374, 417–8 occupation:    Australia (native title), 288 n 13, 307 n 133, 313–14 n 193    Canada (Aboriginal title):      continuity, 322 n 265, 359, 406, 411       see also continuity/constancy requirements      exclusivity, 359, 395, 411, 413, 414, 415, 423, 424, 435, 438, 453      prior occupation, 366, 393–4, 396, 405, 407, 410, 411, 413–14 ,416, 417, 419, 420, 423, 430, 436, 438–9, 441, 452, 453, 454     proof of:       Aboriginal and common law perspective, 395, 397–8, 399, 411, 416, 436, 452       Aboriginal perspective, 396–7, 397–8, 399, 414, 415, 416, 417–20, 425, 436, 438, 439, 440, 453–4       common law perspective emphasised/decisive, 399, 410, 412–14, 426–9, 430, 436, 438, 440, 452, 453–4      ‘site specific’ versus ‘territorial’ claims, 415, 419–20, 421, 426–30, 439, 440, 454      source of Aboriginal title see Aboriginal title, Canada    common law Aboriginal customary title, limb two:      pre-sovereignty, 306–7, 320, 321, 326, 329, 330, 355, 450         no continuity required, 329, 356, 450           see also continuity/constancy requirements      purposive occupation, 306–7, 320–2, 324, 325, 326, 329, 330, 355, 356, 366, 396, 408, 423, 450       criteria for establishing:         Aboriginal perspective, 306–7, 321, 326, 330, 355, 408, 410, 450         relevance of existing jurisprudence on occupation, 321 n 253        defined, 306–7, 321, 355, 366, 396, 450

Index 491       exclusivity, 321, 330      versus laws and customs, 307 n 131, 307 n 133, 313–14 n 193 office see inquest of office office of entitlement see entitlement, office of oral history, treatment as evidence:    Australia (native title), 323–4, 329    Canada (Aboriginal title), 329, 393, 408, 422–3, 437, 439, 453    common law Aboriginal customary title, 324, 329, 356, 408, 423, 450 Papua New Guinea:    acquisition by Crown, 77    meaning of Crown’s title to land subject to Papuan land rights see radical title, meaning, as bare legal title paramount lordship see Crown Paris, Treaty of (1763), 40, 362, 362 n 19, 368, 369, 371 pastoral leases see extinguishment, Australia (native title) Pienaar, GJ, 345 Pollock, F, 10 n 12, 11 n 21, 16 n 85, 19 n 108, 310 n 152 possession:   freehold see seisin    in deed, 257, 258 n 154, 258 n 156    in law, 257–8, 258 n 154, 258 n 156    presumed from occupation, 133, 322, 394, 406, 417–18    title presumed from, 133, 322, 406 Powell, CH, 341 pre-emptive code, 52 pre-feudal landholding see Anglo-Saxon, landholding preferable rule see prerogative, royal prerogative, royal:    distinction between major prerogatives and minor prerogatives, 112, 113     colonial significance of, 112–3    prerogative power to grant land:     conquered and ceded colonies:        restraints on power apply to all property rights irrespective of source, 113–7, 128–9, 141, 287, 444         see also Case of Tanistry; continuity pro-tempore, doctrine of      inhabited settled colony of Australia:        restraints on power limited to rights derived from Crown grant/common law rights, 124, 125–6, 127–8, 129, 141, 157 n 79, 255, 287, 444         see also continuity pro-tempore, doctrine of         objections to limitation, 124–7, 360 n 7          preferable rule, 2 n 7, 82 n 3, 108 n 191, 117 n 241, 128–9, 130, 134, 141, 342 n 399, 374, 376, 386, 445   sea areas:     England and pre-Mabo Australia, 199       see also foreshore and territorial seabed     post-Mabo Australia, 213, 221        public rights to fish and navigate as restrictions on, 213–14, 222

492  Index prescription, 125 n 285, 293, 294 n 52, 298 n 74, 299, 300, 301 n 104, 302–3, 304 n 118, 323 presumptive title, 330, 374, 386, 406    common law Aboriginal customary title and see common law Aboriginal customary title, limb two proof:    Australia (native title), 322 n 259, 323–4, 324, 326 n 286, 327–8, 384 n 222    Canada (Aboriginal title):      test for, 366, 393, 394–5, 397–9, 410, 411, 413, 419, 424, 436, 437, 438, 452, 453       proof of occupation distinguished see occupation    common law Aboriginal customary title, limb one:     legal requirements, 305       see also continuity/constancy requirements; custom in England       ‘time immemorial’, presumptions relating to, 305    common law Aboriginal customary title, limb two:     see also common law Aboriginal customary title, limb two, identifiable group; common law Aboriginal customary title, limb two, system; continuity/constancy requirements; laws and customs; occupation     test for, 307, 320–22, 329–30, 355–6, 408, 410, 438, 450       presumptions relating to, 321, 322–4, 329–30, 355, 356, 423, 450         South Africa, judicial support for, 350, 355, 451 public rights (common law):    common law customary rights distinguished, 293 n 48, 299–300    fishing, 204, 213–16, 219, 222–3, 229, 231, 291 n 34    incorporeal hereditaments distinguished, 299–300    navigation, 204, 213–16, 219, 220, 222–3, 229, 291 n 34, 300, 301 pur autre vie estate see tenure, doctrine of, exceptions to Quebec see Aboriginal title, Canada   see also bipartite colonial context/history; Canada; civil law; reception of English law radical title:   see also Crown; Crown land; inhabited settled colonies; Mabo; modified doctrine of reception; reversion expectant argument; tenure ad veritatem, doctrine of; Wik    as bare legal title see radical title, meaning, as bare legal title    common law Aboriginal customary title and see common law Aboriginal customary title    conventional meaning see radical title, meaning, conventional    judicial consideration of:

     Australia, 85–95, 102, 127, 132, 135, 136–7, 139–40, 142–4, 147–60, 166–90, 193–8, 200–35, 265–70, 273–80, 283–5       see also radical title, meaning, as bare legal title      Canada, 373, 375– 6, 379, 380–1, 382, 385, 386–8, 389, 390, 391–2, 399–401, 402, 404, 405, 416, 431, 435–6, 437, 452       see also radical title, meaning, as bare legal title     South Africa, 340, 341–3   Mabo and two limbs of:     see also radical title, meaning, as bare legal title     concomitant of sovereignty, 85, 86, 87, 89, 91, 95, 102, 127, 132, 136, 139, 140, 143–4, 147, 148, 150–58      postulate of doctrine of tenure, 85–6, 87, 89, 90, 91, 93, 95, 102, 127, 132, 135, 136, 139–40, 142, 143, 144, 147, 148, 150, 157–8      two limbs, interaction of, 158–60, 166–80    meaning, as bare legal title:     argument defined, 36–8     before Mabo       American authority, 51, 55–8, 371–2         see also dominative code; pre-emptive code; sovereignty         confusion of international law and municipal law distinguished, 50–5, 371, 446        Canada, 380–1, 382, 385, 386–8, 389, 435, 452       New Zealand, 59–67, 72–6, 446         confusion of international law and municipal law distinguished, 67–72       Papua New Guinea:         Australian High Court decisions, 77       Privy Council authorities, 39–50, 72–6, 446     Mabo and post-Mabo Australia – land:       Brennan J’s leading judgment in Mabo:         arguments against bare legal title obiter, 88         arguments for bare legal title, 85–8       as concomitant of sovereignty (unalienated land):         ambiguity, 88–9, 147–8, 150         arguments against bare legal title see radical title, meaning, as bare legal title, Mabo and post-Mabo Australia – land, currently unalienated land and argument against bare legal title: reversion expectant argument; radical title, meaning, as bare legal title, Mabo and post-Mabo Australia – land, original unalienated land and argument against bare legal title: ‘no other proprietor’ principle         arguments for bare legal title see radical title, meaning, as bare legal title, Mabo and post-Mabo Australia – land, currently unalienated land and arguments for bare legal title; radical title, meaning, as bare legal title, Mabo

and post-Mabo Australia – land, original unalienated land and arguments for bare legal title       currently unalienated land and argument against bare legal title: reversion         expectant argument, 88, 148, 150, 158–60, 171–2, 193–4         see also fiction, legal; reversion; Wik       currently unalienated land and arguments for bare legal title:         general principles, 160–65, 194         High Court’s adoption of ‘inconsistency of incidents’ test, 180–6, 194–5, 446–7         Native Title Act concepts/principles, 191–3, 195         operational inconsistency (common law doctrine), 188–90, 195, 446–7         partial extinguishment (common law doctrine), 186–8, 195, 446–7         rejection of reversion expectant argument, 136–7, 159, 166–71, 175–84, 195, 265–7, 446–7       ‘currently’ unalienated land defined, 148, 193       original unalienated land and argument against bare legal title: ‘no other proprietor’ principle, 88, 150, 193         see also fiction, legal       original unalienated land and arguments for bare legal title, 150–8, 194, 446–7       ‘original’ unalienated land defined, 148, 193        as postulate of doctrine of tenure (alienated land):         arguments for bare legal title, 85–7, 89–95, 135, 139–40, 142, 143,144, 147, 158, 259, 266, 278, 286, 401, 443–4, 446           see also fiction, legal       statutory regime governing alienation of land and:         constitutional power to legislate regarding Crown land, 280–3, 284         statutory definition of ‘Crown land’ synonymous with radical title, 167–71, 176, 195, 196, 240, 265–7, 269–71, 284           see also Crown land         policy and purpose of legislation relating to Crown land, 270–2, 284         residuary rights to Crown land, 265–7, 284         statutory resumption and vesting of Crown land, 267–70, 284         statutory trespass provisions, 273–80, 284     post-Mabo Australia – sea areas:       see also sea areas       Crown’s title to sea and:         continental shelf beyond territorial sea and Exclusive Economic Zone, 200–3, 208–11, 225–7, 233         intertidal zone (including foreshore), 203, 211, 220, 221, 223, 233         territorial sea, 208–20, 233–4     post-Mabo Canada, 390, 391–2, 399, 400–1, 402, 404, 431, 435–6, 452    meaning, conventional, 38, 76, 334, 341, 368

Index 493     alternative interpretation see radical title, meaning, as bare legal title    native title and see native title reception, doctrine of:    classification of colonies and, 29–30, 98, 103, 104, 360     see also colonies, common law classification of, conventional   continuity, doctrine of, and, 121, 133–4   settled colonies:      conquered and ceded colonies distinguished, 30, 111, 130      English law applied, 29–30, 34, 81, 104, 360      inhabited settled colonies distinguished see modified doctrine of reception       see also inhabited settled colonies reception of English law:   Australia:     before Mabo see reception, doctrine of, settled colonies     post-Mabo see modified doctrine of reception   Canada:      colonies treated as settled for reception purposes, 360–2, 374       see also reception, doctrine of; modified doctrine of reception      colonies with statutory reception date, 363–5     Quebec distinguished, 362–3 reception of land law see reception of English law recognition doctrine, 32, 69, 98, 99–100, 101, 102, 107 n 189, 108 n 191, 109, 287 reconciliation:    Canada (Aboriginal title), 331–3, 351, 425–6, 429–30, 440, 454    common law Aboriginal customary title, 129 n 306, 331–4, 351, 356, 430, 440, 450, 454    scholarship, 99 n 113, 331, 333–4    South Africa, 334, 351–2     see also inter-se-temporal rule record of Crown’s title see Crown, record requirement res nullius, 4, 28 n 198, 239, 244–6, 248, 341, 342, 353 reversion:   see also reversion expectant argument; vested in interest    lease granted by Crown:      conventional view (England and pre-Mabo Australia), 163     post-Mabo Australia, 162–4, 165       out of Crown’s demesne, 163       based on Crown’s radical title, 163–4 reversion expectant argument:   see also Mabo; radical title, meaning, as bare legal title; Wik   Mabo and, 88, 150, 158–60, 193–4, 446   Wik and:     implications for Crown’s title on grant of a common law lease, 178–80     rejection of, 136–7, 159, 166–71, 195, 265–7, 446–7       minority judgment, 171–2

494  Index Richtersveld:   see also Aboriginal title, South Africa; common law Aboriginal customary title; South Africa    Constitutional Court decision, 343–7, 349, 350, 351–2     inter-se-temporal rule and see inter-se-temporal rule    Supreme Court of Appeal decision, 340–3, 347, 350 right, little writ of, 22, 308 n 136, 308 n 137 rights/title distinction:    Australia (native title):      absence/blurring of, 187, 314 n 197, 390–1, 391 n 271    Canada (Aboriginal title):     see also Aboriginal title, Canada     Delgamuukw, 397–9, 410, 413, 429, 436, 438, 452     post-Delgamuukw, 413, 419, 421, 427, 429, 438, 440, 453, 454–5     Van der Peet, 314 n 197, 390–1, 397, 410    common law Aboriginal customary title:      limb one, 304, 305, 353, 409–10, 438, 449      limb two, absence of, 410, 438 Roman-Dutch law in South Africa, 317, 336, 337–8, 341, 348–9, 350, 355, 451   see also bipartite colonial context/history Roman law, 28 n 198, 245, 337, 362 royal charters:    Aboriginal land rights and:     American colonies, 53, 57–8     Canada, 380–1, 384       see also Hudson’s Bay Company royal prerogative see prerogative, royal Royal Proclamation (1763):    Aboriginal land rights in Canada and:     Calder see Calder      early Privy Council authority, 39–42, 76, 368–9, 370 Salmond, J, 294 n 54, 296 n 63, 299 n 83 scire facias, 61, 68, 127–8 n 300, 257 n 144 sea areas:    England and pre-Mabo Australia see foreshore and territorial seabed   post-Mabo Australia:     see also radical title, meaning, as bare legal title      continental shelf beyond territorial sea and Exclusive Economic Zone, 200–3, 208–11, 223–32, 233      intertidal zone (including foreshore), 203, 211, 220, 221–3, 233     territorial sea, 208–20, 233–4 second limb of common law Aboriginal customary title see common law Aboriginal customary title, limb two seisin:   abeyance of:      common law abhors, 258, 259, 261

       limited application of rule in Australia postMabo, 259, 261        rationale for rule under feudal doctrine of tenure, 259   defined, 258 n 154, 259    in deed, 73–4, 258 n 154, 375 n 148    in law, 73–4, 258 n 154, 375 n 148    presumed from possession, 133 settled colonies:   see also act of State; colonies, common law classification of; reception, doctrine of    criteria for classification see ‘desert and uncultivated’ doctrine    Crown lacked legislative power, 112    English law applied see reception, doctrine of    ‘inhabited settled’ colonies distinguished see inhabited settled colonies    sovereignty over acquired by occupation see terra nullius, doctrine of     see also sovereignty Simpson, AWB, 19 n 106, 27 n 183 Slattery, Brian, 98–9, 100, 132, 311–12, 314–17, 331, 332 n 329, 333, 350 n 470, 354, 416, 425 n 531, 425 n 534, 426 n 536, 430 n 580, 433–4, 434 n 609    Aboriginal title jurisprudence, contributions to:     early, 98–9, 100, 132        continued significance of, 433–4, 434 n 609      judicial citation/approval of, 311, 331, 333 n 337, 425 n 531, 426 n 536, 430 n 580, 433–4, 434 n 609      later, 99 n 113, 100, 311–12, 314–17, 331, 332 n 329, 333, 350 n 470, 425 n 531    common law Aboriginal customary title and influence of, 99 n 113, 100, 317, 331, 333, 354, 416 socage tenure, 22 n 140, 23 n 146, 23 n 152, 27, 242, 271 n 232, 308 n 138, 309 n 144 South Africa:    Aboriginal title and see Aboriginal title, South Africa    bipartite colonial history see bipartite colonial context/history    common law Aboriginal customary title see common law Aboriginal customary title   Constitution see Constitution    Restitution of Land Rights Act 1994, 335–6, 339 n 371, 339 n 372, 340, 341, 343, 346, 347 n 445 Richtersveld case see Richtersveld sovereignty:   see also act of State; conquered and ceded colonies; imperium/dominium distinction; inhabited settled colonies; settled colonies    acquisition by Crown:      matter of international law, 28, 96, 105 n 163       law governing newly acquired territory distinguished, 29–30, 96–97         see also colonies, common law classification of     methods of, 28, 360 n 12

      occupation of terra nullius see terra nullius, doctrine of         ‘desert and uncultivated’ doctrine distinguished see ‘desert and uncultivated’ doctrine    inter-temporal rule see inter-temporal rule    title to land/property distinguished see imperium/ dominium distinction     see also international law; radical title Staunford, William, 257 n 145, 257 n 147, 258 Stevenson, SR, 408 n 393 Stokes, A, 153 subinfeudation, 27, 133 sui generis see Aboriginal title, Canada; common law Aboriginal customary title, limb two; native title   see also Aboriginal title, conceptions of tanisrty, custom of, 118–9, 290 n 33   see also Case of Tanistry tenure, doctrine of:   see also Crown, as lord paramount; feudalism; fiction, legal; reception, doctrine of   Australia:     before Mabo, 28, 31–5     Mabo:       redefined by High Court see tenure ad veritatem, doctrine of   Canada:      judicial support for redefinition of, 371, 377–8, 381–2, 389, 389 n 260, 392, 400–4, 431, 436       see also tenure ad veritatem, doctrine of, Canada     received as basis of land law (except Quebec), 358, 365       see also reception of English law, Canada    common law Aboriginal customary title and see common law Aboriginal customary title, doctrinal underpinnings    England, 18–20, 34    exceptions to, 20–6, 309     see also allodial title; tenure in ancient demesne    origin of, 9–20, 34   tenure ad veritatem, doctrine of, distinguished see tenure ad veritatem, doctrine of tenure ad veritatem, doctrine of:   see also inhabited settled colonies; modified doctrine of reception; continuity protempore, doctrine of; radical title   Australia:     emergence of (Mabo), 85–7, 89–95, 442, 443       ‘desert and uncultivated’ doctrine rejected, 95, 158 n 83         see also ‘desert and uncultivated’ doctrine       new class of settled colony recognised: ‘inhabited settled’ colony, 82, 133         see also inhabited settled colonies     statutory basis for, 138–9      subsequent judicial support for, 135

Index 495   Canada:      judicial support for, 377–8, 381–2, 389, 389 n 260, 392, 400–4, 431, 436    common law Aboriginal customary title and see common law Aboriginal customary title, doctrinal underpinnings       see also tenure, doctrine of    limited role of, 86, 89, 90, 133, 139, 147, 152, 158, 173, 193, 234, 246, 255, 266, 278, 283, 307, 309, 401, 443–4    native title and, 85–7, 91, 102, 122, 133, 140, 143, 144, 147 n 3, 234, 353, 442, 444    radical title as postulate of, 38, 82, 85–7, 89–91, 95, 102, 127, 135, 136, 139, 140, 142, 144, 147, 157–8, 160–5, 166–7, 169, 178, 194, 234, 239, 259, 278, 286, 306, 365, 392, 400–1, 442, 443–4, 446    tenure, doctrine of, distinguished, 85–6, 94, 139– 40, 259 n 162, 443–4     see also tenure, doctrine of    two-fold feudal fiction, inapplicability of:     see also fiction, legal      fiction of Crown grant otiose, 82, 86, 94, 133, 139, 142, 246, 259, 266, 278, 304, 309, 401, 443      fiction of original Crown ownership not ubiquitous, 82, 86, 89 n 50, 94, 133, 139–40, 142, 152, 158, 162–3, 173, 178, 194, 246–7, 249, 252, 259, 260, 265–6, 278, 283, 286, 304, 401, 443–4         see also reversion; reversion expectant argument tenure in ancient demesne, 21–4, 26, 81, 126 n 191, 289, 307–9, 317, 319, 335, 354, 407, 433, 450   see also ancient demesne manors; fee simple estate    common law Aboriginal customary title and see common law Aboriginal customary title, limb two    tenure, doctrine of:      exception to, 21–4, 26, 81, 126 n 291, 289, 307, 309, 317, 335, 354, 407, 450 terra nullius see terra nullius, doctrine of terra nullius, doctrine of:   see also Mabo; sovereignty   applicability of:      acquisition of sovereignty over territory by occupation, 30, 96, 244, 361, 438 n 617        Australia, 28, 29, 34, 97, 105, 106, 138, 139, 351–2, 443       British Columbia, 361       South Africa distinguished, 347    common law counterpart see ‘desert and uncultivated’ doctrine   concept of terra nullius versus, 30, 97, 105, 139, 352, 357, 438, 443, 453     see also ‘desert and uncultivated’ doctrine    criteria for classification of territories:      original (uninhabited in fact), 28–9, 360–1      extended (legally uninhabited), 29, 70, 360–1    international law doctrine, 29, 30, 34, 96, 138, 139, 244, 360–1, 415 n 453, 438 n 617, 443