Tenures, Estates and Native Title Legal and Equitable Interests in Land Old System Title Torrens Title

1. Tenures, Estates and Native Title Legal and Equitable Interests in LandOld System TitleTorrens Title Assoc Prof Cameron Stewart

2. The Anglo-Saxon Invasions c500AD

3. The Battle of Hastings 1066

4. Sovereignty Absolute beneficial title Reception of laws Conquering Settling; Cession Complete Feudalism Norman Reorganisation

5. Feudalism • The hierarchy of property • Homage fealty • Subinfeudation • Lords and villeins – unfree servitude (labour) • Growth of manorial customary law – enforceable in the manor courts – unfree tenure - copyhold

6. Types of tenures • Knight service - military • Serjeanty – personal services to the King – onerous to the comical • Frankalmoin– religious • Socage - residual – money or quit rents • Incidents – Homage and fealty, • primer seisin - king's right to take land until homage paid • relief - right to claim amount when heir took tenancy • aids - levies for particular occasions eg ransom • wardships - when heir took inheritance before majority lord would take wardship and be able to claim fees for administering estate- control marriage - traffic • escheat - right of feudal overlord to take back estate if tenant was convicted of serious offence, fled jurisdiction or died without heirs • BLOUNT S FRAGMENTA ANTIQUITATIS

7. Types of tenures ASTON-CAMLOU, COUNTY OF WARWICK. The manor of Aston-Cantlou (so called from the family of Cantilupe) was by inquisition after the death of Laurence Hastings, Earl of Pembroke, returned to be held in this form, viz. That that manor is held by itself of our lord the King in capite, by the service of finding a foot soldier, with a bow without a string, with a helmet, or cap, for forty days, at the proper charges of the lord of that manor, as often as there should be war in Wales

8. Types of tenures MIDELINTON, COUNTY OF OXFORD. Henry FitzWilliam holds of our lord the King one piece of land in Midelinton, by the serjeanty of finding one towel to wipe the hands of our lord the King, when he shall hunt in the forest of Witchwood, in the parts of Lankeleg, and that land was worth forty shillings.

9. Types of tenures Rowland le Sarcere held one hundred and ten acres of land in Hemingston, in the county of Suffolk, by serjeanty; for which, on Christmas-day, every year,, before our sovereign lord the King of England, he should perform, altogether, and at once a leap, a puff, and a fart; and, because it was an indecent service, therefore it was rented, says the record, at 26 s, 8 d a year, at the King's exchequer. One Baldwin, also, formerly held those lands by the same service; and was called by the nickname of Baldwin le Pettour, or Baldwin the Farter

10. Types of tenures BOCKHAMPTON, COUNTY OF BERKS. William Hoppeshort holds half a yard-land, in that town, of our lord the King, by the service of keeping for the King six damsels, to wit, whores, at the cost of the King. This was called pimp tenure

11. Curia Regis General Eyre and Assizes Assize of Clarendon 1166 – 12 freemen from the hundred and 4 from the town Henry, Richard Coeur-de-Lion and John Lackland Henry II – the Father of the Common law

12. Parliament begins 1275 The use of statute as opposed to ordinance Edward Longshanks Hammer of the Scots

13. Curia Regis – embryonic courts • Court of Exchequer – revenue • Court of Common Pleas – civil actions • Court of King’s bench – crime • Remaining Council functions split into King’s Council later Concilium Regis and then Privy Council

14. Land Reforms under Longshanks • Statutes of Westminster (1285) – De donis conditionalibus – fee tails • Quia Emptores (1290)– end to frankalmoin and end to subinfeudation

15. The Writ System • Bureacracy • Organisation of wrongs • Remedies • Popularity • Recording • Stare Decisis • Common law • Seisin

16. Types of legal estate • Freehold estates • Fee Simple – closest to absolute ownership - rules of primogenture – escheat • 1540 Statute of Wills - later recognition that can be passed by will – “simple” meant that it could pass to any heir unlike the fee tail which must pass to particular heirs

17. Freehold • Absolute interest • Determinable interests – the occasion of some event will cause the fee simple to revert eg “to y and his heirs so long as St Paul’s Cathedral shall stand” • - a possible or latent reverter interest • - words used “while”, “during”, “so long as”, “ until”

18. Freehold • Conditional – a subsequent condition on the devise which states that the occurrence of some event will allow the grantor to take back the interest eg “to Y and his heirs on the condition that the property is not used to sell liquor” – only exercised by right of entry • words used “on the condition” , “but if”, “provided that”

19. Fee tail • Fee tail- a disposition that would last only while the heirs of that person would last – if they died out the interest would revert back to the heir of the original owner – way of keeping land in the family and restraining any disposition • Tail male – male descendents specified • Tail female – female descendents • Special tail – the descendants of a particular wife

20. Fee Tail • Made possible in De Donis Conditionalibus – lords wanted control over who would get estate – so that despite any attempt to alienate the interest the interest would past to the designated heir on death • Barring the entail - Common recovery/fine = collusive court actions • Now abolished Cact 19

21. Life estate • Life estate – granted to a person for life – • Pur autre vie – for the life of another – “to A for the life of B” or where A has a life interest (“to A for life”) and A alienates that interest during his life time • In either case when the life tenant died the interest terminated

22. Future interests • Already apparent that estates allow in to be granted for the future eg “to A for life and then to B in fee simple” • B’s estate is a future estate – it doesn’t come into being until the death of A • Reversions – a grant of an estate in possession which returns to the grantor eg X grants and life estate to Z hence X is the reversioner

23. Future interests • Remainders - a grant of a future interest to some one who did not have a previous interest – eg to W for life and then to Y in fee simple – Y is the “remainderman” or “remainder”

24. Vested and Contingent Remainders • the rules concerning future interests require the interest to vest or “fructify” by a certain time – if it does not then the interest will fail • An interest vests when the identity of the interest holder is ascertained and when there is no condition precedent other than the normal determination of prior estates • “to A for life and then to B in fee simple” - Vested • To A for life remainder to B in fee simple if B attains 25 years - Not vested

25. Vested and Contingent Remainders • To A for life remainder to B in fee simple if B attains 25 years - Not vested • Why? B’s interest is contingent unless he has already achieved the age of 25 when the clause was written – that is the fact that he must be 25 is a contingency which must be satisfied for the property to vest in him

26. Interests in Land that are less than freehold • Leases • Easements • Profits a Prendre • Restrictive Covenants • Mortgages

27. Old System Title • Feoffment with livery of seisin • Charter of feoffment • Deeds – Lord Westbury “disgusting” • Chain of title

28. 17th Century changes • Tenures Abolition Act 1660 – socage tenure • An Act for Prevention of Frauds and Perjuries 1677 – now in the Conveyancing Act 1919

29. The requirements for writing 23BAssurances of land to be by deed • No assurance of land shall be valid to pass an interest at law unless made by deed. 23CInstruments required to be in writing • Subject to the provisions of this Act with respect to the creation of interests in land by parol: (a)  no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent thereunto lawfully authorised in writing, or by will, or by operation of law, ….

30. The requirements for writing • 23DCreation of interests in land by parol • (1)  All interests in land created by parol and not put in writing and signed by the person so creating the same, or by the person’s agent thereunto lawfully authorised in writing, shall have, notwithstanding any consideration having been given for the same, the force and effect of interests at will only. • (2)  Nothing in this section or in sections 23B or 23C shall affect the creation by parol of a lease at the best rent which can reasonably be obtained without taking a fine taking effect in possession for a term not exceeding three years, with or without a right for the lessee to extend the term at the best rent which can reasonably be obtained without taking a fine for any period which with the term would not exceed three years.

31. The requirements for writing 54AContracts for sale etc of land to be in writing • No action or proceedings may be brought upon any contract for the sale or other disposition of land or any interest in land, unless the agreement upon which such action or proceedings is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto lawfully authorised by the party to be charged…

32. The requirements for writing • 23ESavings in regard to secs 23B, 23C, 23D • Nothing in section 23B, 23C, or 23D shall: (a)  invalidate any disposition by will, or (b)  affect any interest validly created before the commencement of the Conveyancing (Amendment) Act 1930, or (c)  affect the right to acquire an interest in land by virtue of taking possession, or (d)  affect the operation of the law relating to part performance.

33. The status of the local laws of a colony depended upon whether it was: a conquered colony; or a settled colony (terra nullius- an empty land) Colonial Australia

34. Colonial Australia • Australia was treated as being settled as it was considered to be unoccupied, that is, as terra nullius – or was it? • No recognition of Aboriginal laws or customs? • Aboriginal land rights not recognised?

35. Terra nullius • International law of conquest, cessation or settlement • Effect of law of inhabitants • Imperial authorities assumed settlement theory • Respect for native inhabitants • Ambiguous position

36. R v Ballard or Barrett [1829] NSWSupC 26; sub nom. R v Dirty Dick (1828) NSW SelCas (Dowling) 2 • Charge of Murder of one native by another • Forbes CJ - I believe it has been the practice of the Courts of this country, since the Colony was settled, never to interfere with or enter into the quarrels that have taken place between or amongst the natives themselves.  This I look to as matter of history, for I believe no instance is to be found on record in which the acts of conduct of the aborigines amongst themselves have been submitted to the consideration of our Courts of Justice.  It has been the policy of the Judges, & I assume of the Government, in like manner with other Colonies, not to enter into or interfere with any cause of dispute or quarrel between the aboriginal natives.  In all transactions between the British Settlers & the natives, the laws of the mother country have been carried into execution.  Aggressions by British subjects, upon the natives, as well as those committed by the latter upon the former, have been punished by the laws of England where the execution of those laws have been found practicable.  This has been found expedient for the mutual protection of both sorts of people; but I am not aware that British laws have been applied to the aboriginal natives in transactions solely between themselves, whether of contract, tort, or crime.  Indeed it appears to me that it is a wise principle to abstain in this Colony • The accused was released

37. R v Boatman or Jackass and Bulleye (1832) NSW Sel Cas (Dowling) 6; [1832] NSWSupC 4 • Sheep stealing • The first question for consideration is whether the aboriginal natives of this Colony are subject to the jurisdiction of this court by the law of England.  The general principle acted upon, I believe, with respect to these people since the foundation of this as a British Colony, is to regard them as being entirely under the protection of the law of England for offences committed against them by the white settlers & subjects of the Crown, & on the other hand to render them liable for any infraction of the British Law which may be injurious to the persons or properties of His Majesty's white subjects.  We interfere not with their own habits, customs or domestic regulations,[4]but leave them to adjust their own disputes & differences amongst themselves.  Dirty Dick's case.[5]Vol. 22 p. 98.  But before a person of this description can be tried in this court it must be made to appear that he understands what is passing & is sensible of the liability he incurs; for if he does not understand what is passing he must be regarded as a person deaf & dumb, or a lunatic.  In other words he must be a reasonable & responsible being.  Rex vBinge Mhulto[6]Vol. 9. P. 100; but if he be a reasonable being, & understand the nature of his present responsibility [p. 12] then, I hold, as at present advised, that he is liable to the Britis [sic] law.  His anomalous position as a savage native of a country which has become the territory of the British Crown, disentitles him[7] to the privileges of a foreigner, of being tried by a jury half English & half foreigners, even if the Act for the administration of justice in this country would authorize us in adopting a course of trial for which we have no machinery.  Where should we find the materials for such a jury? • Found guilty but released becuase they didn’t understand their wrongdoing

38. R v Jackey [1834] NSWSupC 94 • Forbes CJ – white murdered by black • If in a newly inhabited country, there be no municipal law, then the law of nature comes into operation; for if it were not so, the law of retaliation or self-defence would be acted upon.  It was then as much for the benefit of the black as the white portion of the community, that the protection of the law should be equally afforded them; it was a reciprocal protection, founded on the dictates of policy, justice and humanity.  • Jury found accused guilty of manslaughter - transportation

39. R v Murrell and Bummaree (1836) 1 Legge 72; [1836] NSWSupC 35 • Jack Congo Murrell was charged with murdering Jabbingee at Windsor – Richard Windeyer argued that Murrell was not subject as he received no protection from the Crown • Burton J (Forbes CJ and Dowling J) and – no aboriginal law – ‘lewd superstitions’ • NSW was unoccupied by a nation • 1st although it be granted that the aboriginal natives of New Holland are entitled to be regarded by Civilized nations as a free and independent people, and are entitled to the possession of those rights which as such are valuable to them, yet the various tribes had not attained at the first settlement of the English people amongst them to such a position in point of numbers and civilization, and to such a form of Government and laws, as to be entitled to be recognized as so many sovereign states governed by laws of their own • English law applied

40. R v Bonjon (1998) 3 Australian Indigenous Law Reporter 410-425; [1841] NSWSupC 92 • Bon Jon charged with murdering Yammowing at Geelong • Willis J -The Report further states, "It might be presumed that the native inhabitants of any land, have an incontrovertible right to their own soil; it is a plain and sacred right which seems not to have been understood.  Europeans have entered their borders uninvited, and when there, have not only acted as if they were the undoubted lords of the soil, but have punished the natives as aggressors if they have evinced a disposition to live in their own country.  If they have been found upon their own property (and this is said with reference to the Australian Aborigines) they have been hunted as theives and robbers – they have been driven back into the interior as if they were dogs or kangaroos."  To elucidate so far as I am able the point for decision, I will first briefly trace the history of this colony and of the settlement of this district, at the same time remarking on the character which has been given of the Aborigines; and in the second place, state so much of the acknowledged law of nations and the manner it has been acted upon with regard to Aborigines, as seems to me to bear on the subject, adding a few notices of the manner in which uncivilized tribes have been treated with in other British Colonies, and the steps taken in Colonies where English law was in force.  I will premise that the policy, or impolicy of an existing system can avail nothing in the present instance.  I am here as a Judge to declare the right, and not to have recourse to the expedient.  I can never permit the end to justify any undue means for its accomplishment.  This may be policy and wisdom in a statesman, but it is little less than treason in a Judge.

41. R v Bonjon (1998) 3 Australian Indigenous Law Reporter 410-425; [1841] NSWSupC 92 • Willis J - I desire to see the state of the Aborigines of Australia improved, I desire to see them freed from the yoke of error; to see the duties of humanity amply and practically fulfilled; to see all due protection extended to this unhappy race – the protection of their rights by laws adapted to their capacity and suited to their wants – the protection of all equal and all powerful justice. • Bon Jon was ordered to stand trial but Willis J reserved the issue of jurisdiction • He was later released without trial • Dowling CJ was very critical of the decision because he believed that Murrell had decided these issues

42. Attorney General v Brown (1847) 1 Legge 312 • 1847 – challenge by coal miner of ownership in the Crown – absolute title in the Crown from 1788 and passing reference to the fact that aboriginal title would b inconsistent with the Crown’s ownership • NB –barrister Richard Windeyer was said to have called his opposition, John Darvall, a liar and he shaped up to fight him in court. They both spent Xmas in 1846 in Darlinghurst gaol for contempt.

43. Cooper v Stuart (1889) 14 App Cas 286 • 1889 – reservation of Crown right to take land for public purposes • Argued to be offensive to rule against perpetuities • PC – NSW was a “…tract of territory practically unoccupied, without settled inhabitants or settled law, at the time it was peacefully annexed to the British dominions…”

44. Mirrilpum v Nabalco • 1970 – first land rights action – restraint of mining without consent – Blackburn J – there was a system of law but the issue was one of law and not of fact – not a property holding in any sense of the common law hence not enforceable

45. Mabo No’s 1 and 2 • No 1 – interlocutory – preliminary issue concerning validity of a declaratory Act by the Queensland government to extinguish the title of the Murray islanders – held to be in breach of the RDA • No 2 – instituted 1982 decided 1992 – original jurisdiction of the High Court • Moynihan J of SC QLD for facts – found complex land ownership – plots and gardens • Decision (6:1) in favour of a concept of native title

46. Mabo No’s 1 and 2 • Terra Nullius • Found to not be a common law principle but of international law – the true common law principle is that of the law of settlements – Australia is regarded as such a territory – all judges agreed that Australia was settled, despite the fact of prior occupation of Aboriginal people – hence the real issue was the relevance of terra nullius to Australian law – settlement is not a bar itself to recognizing native title – sovereignty could not be questioned

47. Mabo No’s 1 and 2 • Sovereignty • The sovereignty of Australia was not challenged in the proceedings – indeed it could not be so challenged by an Australian municipal court • The original sovereignty of the native Australians was not discussed – there was a recognition that Aborigines had settled law (hence that aspect of terra nullius was rejected)

48. Mabo No’s 1 and 2 • What is native title? • The conquering or the settlement of as colony does not automatically extinguish the rights of the original inhabitants to land • Traditional Aboriginal occupancy of and connection with the land by a people, in accord with a system of laws and customs • Content of rights determined by those laws and customs – includes rights to fish hunt and gather (usufructory rights) – but is varied by particular laws and customs – can evolve over time • Inalienable (except in accordance with the traditional laws and customs)– can be surrendered to Crown

49. Mabo No’s 1 and 2 • How do you prove native title? • Existence of identifiable group • Traditional connection with or occupation of land under laws and customs – spiritual more than occupation – special and exclusive ( 4 judges) – Toohey various interests • Substantial maintenance of connection - physical occupation not necessary

50. Mabo No’s 1 and 2 • How is it extinguished? • Crown did not take an absolute title but a radical title, which gave sovereignty but not ownership – native title is a burden • Radical title grants power to extinguish without consent - clear and plain intention to extinguish – freehold, leasehold extinguishes – pastoral leases? • No duty to pay compensation (3:3 split in majority and Dawson J also in favour of no compensation) – nt not accorded full respect • Constitution S 51(xxi)? – Only Deane and Gaudron JJ