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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