The common law device adopted by the high court to

rights to land; rights which do not derive from a 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’.
2. What were the essential differences between indigenous ideas of land law and those of
the English settlers that led the court to refuse to recognise the claims of the Yolngu
people in Milirrpum v Nabalco (1971) 17 FLR 141 (The Gove land rights case)?
 The aboriginals have a connection to the land, but not proprietary one:
a. A proprietary relationship implied ‘the right to use or enjoy, the right to
exclude others, and the right to alienate’.
b. This was not demonstrated by the Plaintiffs, who only had a ‘religious
relationship’ with the land.
 The court did recognise the existence of Aboriginal laws, which challenges the second
criterion for terra nullius.
c. Though no sovereign government existed, laws which regulated the lives of
Indigenous Australians did exist.
d. However, the court was not willing to overturn terra nullius .
Indigenous  Community, Not commodified  cannot be sold
Blackstonian  Can be sold, property
3. Discuss the nature of native title that was recognised in Mabo v Queensland (No 2)
(1992) 175 CLR 1. Does the decision in this case indicate the introduction of legal
pluralism in Australian property law?
 Refers to the existence or recognition of indigenous customs and laws, otherwise
known as customary law, within the common law system. The Mabo case rejected the
notion of Terra Nullius (land owned by no-one), and recognised the existence of a

traditional system of customs and laws in Australia, prior to settlement by non-
indigenous people and the start of the common law system
 Legal pluralism
4. What must an indigenous claimant prove in order to successfully maintain a claim
under the Native Title Act 1993 (Cth)? Discuss the requirement of ‘connection’ giving
examples from the cases.
 S223
 Connection had to be traditional, or physical
5. How is native title extinguished?
TUTORIAL 4  LECTURE 3
LAND, FIXTURES & CHATTELS
Lecture notes
All property is conceived as private and governed by private law.
INTRO

• Two classes of property : real property and personal property.
• Real property can include airspace and fixtures, and is immovable.
• Personal property is a chose (French for thing; also known as “res” in Latin).
• Chose in possession is a tangible physical type of personal property.
• Chose in action is an intangible thing and cannot be physically possessed.
LAND
General proprietary concepts
What is land?
AIRSPACE
CASES GOVERNING PROPRIETARY INTERESTS IN AIRSPACE
• Cuius est solum, eius est usque ad coelum et ad inferos is Latin for ‘whoever's is
the soil, it is theirs all the way to Heaven and all the way to Hell’. The Latin maxim is
nowadays not legally true. (due to the advent of modern technology)
Airspace (how far can a land owner claim?)
• Subject to zoning laws, owners may use their airspace to build at any height:
Victorian Park Racing and Recreation Grounds v Taylor (1937) 58 CLR 479
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