The doctrine of tenure was the foundation of Australia’s land law upon British settlement, although it is believed it has lost relevance and applicability after the symbolic ruling of the High Court in Mabo v Queensland (No 2). Similarly, the doctrine of estates has formed part of the fragmentation of property rights in land until now. This paper will analyse the historical connection between the doctrines of tenure and estates and It will also discuss the relevance of these doctrines in today’s society.
How are the doctrines of tenure and estates connected?
The doctrine of tenure consists of a pyramidal structure with the notion of the Crown as the owner of all land and its occupiers taken as mere tenants of the King without enjoying
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In fact, some tenurial incidents are still actively embedded in Australia’s land law. For example, the reversion of land title to the crown when a person dies intestate, also known as escheat, or the land escheats to the Crown when a trustee in bankruptcy or a liquidator of a landowner disclaims the land under statutory powers.
Nonetheless, some academic authors demand the discontinuation of the tenure system as it permitted the Crown to take possession of all land, ignoring the interest of previous indigenous occupants. It has also been argued that in Australia the relationship between the Crown and its citizens has always been non-tenurial due to the abolition of most of the tenure system in England by the time of Australia’s colonisation. In conclusion, the doctrine of tenure continue to be part of the Australian law and its controversial application is yet to be settled.
Doctrine of
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Importantly, estates allow the division of property interest and the use of land by people other than the original owner, for instance in cases of leasehold or life estates. Further, estates also provide a simple and a certain framework for the alienation, by will or trade, of property interests. Interestingly, it has been argued that estates would continue to exist despite a possible abolition of the doctrine of tenure, in other words, the fragmentation of land rights on the basis of time would remain unchanged in the absence of the tenure
Jeff Lambert also explains the European attitudes towards Aboriginal and Torres islander sovereignty. Jeff Lambert states Europeans perceived Torres Islanders and Aboriginals as ‘inferior’ (Lambert 2012. pg.12). Lambert (2012. pg13) suggests that “There were some who asserted that terra nullius implied that unoccupied land was not the only meaning of the phrase and that it could also be interpreted as an absence of civilised society.”. The principle of terra nullius means no-man’s land, therefore after the Governor Bourke Proclamation Aboriginals had no legal ownership of land.
The milestone judicial decision in Cole v Whitfield pronounced a pivotal moment in Australian jurisprudence in relation to the interpretation of s92 of the Australian constitution. This essay will critically analyse the constitutional interpretation approach utilised in Cole v Whitfield. This method will be compared with the interpretational methods exemplified in Commonwealth v Australian Capital Territory. Although within these two cases there appears to be a preference towards a particular interpretational method, each mode has both strengths and weaknesses. Accordingly, the merit of each should be employed in conjunction with one another, where the court deems fit, complementing each other. This may provide a holistic approach to interpreting the constitution.
The importance of social context in Land Law and the reforms which have occurred as a result cannot be ignored or their significance understated. In particular is the impact of the shift in the twentieth century to ‘emergence of a property owning, particularly a real-property-mortgaged-to-a-building-society-owning-democracy’. Such growth could hardly have been anticipated when the LPA 1925 was drafted and subsequently became statute. As a consequence of this growth the doctrine of the resulting trust and to a greater extent, the constructive trust became a robust mechanism by which non legal owners could establish beneficial interests in the home. Swadling comments on the ‘complete change in attitude’ between the emphasis on security of ownership of the home in Boland and the free marketability of land which we see in Flegg. He states ‘one wonders what has happened to the demands of social justice which justified their Lordships decision in 1980 (in Boland) over such a brief passage of time’. Did the House of Lords fail to resolve the very practical issue with which they were presented that had evolved over the passage of social change since the drafting of the 1925 legislation?
This essay is about the land rights of of Australia and how Eddie Marbo was not happy about his land been taken away from him. In May 1982 Eddie Marbo and four other people of the Murray Islands began to take action in the high court of Australia and confirming their land rights. Eddie Marbo was a torres islander who thought that the Australian laws were wrong and who went to fight and try and change them. He was born in 1936 on Mer which is known as Murray Island. The British Crown in the form of the colony of Queensland became of the sovereign of the islands when they were annexed in1978. They claimed continued enjoyment of there land rights and that had not been validly extinguished by the sovereign. (Australian Bureau of Statistics 2012)
Indigenous People. In evaluating the Legal System’s response to Indigenous People and it’s achieving of justice, an outline of the history of Indigenous Australians - before and during settlement - as well as their status in Australian society today must be made. The dispossession of their land and culture has deprived Indigenous People of economic revenue that the land would have provided if not colonised, as well as their ... ... middle of paper ... ...
Their main vision is to empower the idea of a shared country and encourage opportunities for growth. With the perplexed requirements set out by the Native Title Act, this tribunal has helped claimants by providing legal aid to increase the chances of regaining lost land. For example, the Wik Peoples v Queensland (1996) 187 CLR 1 case was successful in recognising the lost land of the Wik people of Cape York. “They claimed native title over land that had previously been leased by the State Government to farmers for pastoral use” (Woodgate, Black, Biggs & Owens, 2011, p.354). The court then decided by a 4:3 majority that pastoral leases did not necessarily extinguish native title. This means that, in some cases, native title rights will co-exist with the rights of the pastoralists. Therefore, through progression and more native title cases heard, the laws surrounding the Native Title Act will adapt to further assist the Indigenous Australians in reclaiming their land. For instance, the processes surrounding Native Title issues are constantly being refined. As more and more people and political parties become aware of this process, the easier court litigation will become (Dow, 2002)
Of the 8 successful, the 1967 referendum which proposed the removal of the words in section 51 (xxvi) ‘… other than the aboriginal people in any State’ (National Archives of Australia ND), and the deletion of section 127, both, which were discriminative in their nature toward the Aboriginal race, recorded a 90.77% nationwide vote in favour of change (National Archives of Australia, 2014). As a result, the Constitution was altered; highlighting what was believed to be significant positive political change within Indigenous affairs at the time (National Archives of Australia, 2014). Approaching 50 years on, discussion has resurfa...
Property rights can be found in the oldest laws written, and equate the expectation of use or profit to some payment from the very beginning. Modern property rights can be said to begin with the transition from ownership by entities as being the primary form of property right, to the theory that property rights are to promote th... ... middle of paper ... ... operty’ in the case of Goldberg v. Kelly to be protected. This shows the state evolving in order to protect the citizen’s rights.
An issue facing society is whether the Native Title Act 1993 (Cth), is sufficient in balancing the rights of Indigenous Australians and the rights of current land owners. To determine whether legislation is sufficient and fair, an investigation into the current societal view points needs to be considered by legislators, with an evaluation into the ways in which other societies cater to the needs of Indigenous land owners should be made. This information then allows recommendations and changes to be debated, to therefore to ensure more equitable legislation on land rights within Australia.
The rights and freedoms achieved in Australia in the 20th and 21st century can be described as discriminating, dehumanising and unfair against the Indigenous Australians. Indigenous Australians have achieved rights and freedoms in their country since the invasion of the English Monarch in 1788 through the exploration and development of laws, referendums and processes. Firstly, this essay will discuss the effects of the Universal Declaration of Human Rights on the Indigenous Australians through dehumanising and discriminating against them. Secondly, this essay will discuss how Indigenous Australians gained citizenship and voting
Land rights now referred to the continual legal exertion to reclaim ownership of the land and waters that was called home prior to British colonisation (Creative Spirits, 2011). Australian Museum (2015) and Creative Spirits (2011) acknowledge the struggle to gain legal recognition and ownership of Indigenous land is difficult and expensive. Furthermore, the history behind the struggle in earlier years often resulted in violence as Indigenous Australians were dispossessed of their land (Australian Museum, 2015). Subsequently, the struggle for land rights continued through the legal and political systems; as demonstrated in 1982 when Eddie (Koiki) Mabo and four other Meriam people decided to pursue declaration of their customary land rights in the High Court of Australia (Hill, 1995). Based on the findings of Creative Spirits (2011) Indigenous Australian land rights appeared promising in 1983 when the Hawke Government promised legislation to ensure that Aboriginal and Torres Strait Islander people’s land rights are protected throughout Australia. The legislation was said to permit Indigenous Australians to exercise the right of control over mining on Indigenous Australian land to ensure sacred sites are protected (Creative Spirits, 2011). However, in 1984 the mining companies fought back to repossess control over land. Mining and pastoral industries were considered too powerful and
Foner, Eric, and John A. Garraty. "Homestead Act." The Reader's Companion to American History. Dec. 1 1991: n.p. SIRS Issues Researcher. Web. 06 Feb. 2014.
However, the system proved unworkable and an entirely new system was established by the Land Transfer Acts of 1875 and 1897[4]. While it is true that the aims of the Royal Commission have never been fully met by the Land Registration Act (1925), the Act (and subsequent Acts) do go someway towards establishing a purposeful system for the regulation of transactions with land. The purpose of registration is to make the transfer of land simpler, quicker, cheaper and safer; it is the aim of t... ... middle of paper ... ... 7 [40] (1988) AC 54 [41] I.e. that the transfer of land was safer, simpler and economical, legal title was guaranteed, the risk of fraud was reduced and there was no need to trace good root of title [42] Central London Commercial Estates Ltd v Kato Kagaku Co Ltd (1998) Sedley J: 'The [LRA] has not had good press'.
With Australia being announced Terra Nullius (‘land without owners’) the Indigenous people were referred to as squatters – even through this was their own tribal land. In many cases when land was to be developed for farming, the Aboriginal’s were moved away and sent to settlements. The history of forced resettlement on reserves, the placing of many thousands of children in institutions, and the loss of land and culture were evident disadvantages. Even without forcible removal, the people still had little but no choice but to go to the ‘big cities’, rural centers or pastoral stations.
One of the special concepts in land law is of overriding interests. The standard practice in the English land law is all the interest and rights affecting or is binding over particular a land should be registered in the Register. However, the concept of overriding interest denotes that there are interests which are binding on the owner (the registered proprietor) regardless of not being formally registered. It was introduced because in that era it was though that it would be unreasonable and unjust to overlook such rights and interest enjoyed. Overriding interests need not be registration to bind the legal owner of the land. Therefore, if the land is sold to another person the interests and rights would not be lost. It can be said that overriding by nature are unregistered if they are registered they will cease to be an overriding interest.