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Judicial Approach to the Principles of Property Law

Milirrpum v Nabalco Pty Ltd (1971)

The idea of Aboriginal title was rejected in the ruling, which was found against the Yolngu claimants on a variety of legal and factual concerns. The decision in Milirrpum v. Nabalco Pty Ltd acknowledged that there was a distinction between conquered or surrendered colonies and inhabited colonies under British law at the period of Australia's colonisation when the land was claimed by right of occupation despite being "desert and uncultivated." The court's ruling also said that, if the native title did exist, it might be revoked by the Crown. Because it involved land in the Gove Peninsula in the Northern Territory, Milirrpum v. Nabalco Pty Ltd, also known as the Gove land ownership case, was the first native title lawsuit in Australia and the first substantial judicial process for Aboriginal land rights in Australia. It was decided on April 27, 1971.

Mabo v Queensland (No 2) (1992)

A review of the definitions of native title over the years following the Mabo v. Queensland decision shows that there has been somewhat of a pendular shift in the courts' stance. Native title was first envisioned in Mabo as a unitary property right. It may have been composed of several separate rights, but it was still a title—a special kind of land right. It included a variety of rights to use and enjoy the property, much like the common law fee simple estate, but as a composite interest. Although there was a broad agreement, there were notable disparities between the majority judges in Mabo in how they elaborated on the factors.

Although there was a widespread agreement on the contents of that title, there were notable disparities among the majority judges in Mabo. Native title was proprietary, being held by a community, a group, or an individual over property that might be backed by whatever legal or equitable remedies were required to safeguard it, according to Brennan J (with whom Mason CJ and McHugh J concurred). Deane and Gaudron JJ, on the other hand, described it as a "usufructuary" or "merely a personal right." According to this result, it was not at all proprietary in terms of common law. Finally, Toohey J. compared what he called "Aboriginal title" to the variety of common law land interests and came to the conclusion that it was, in some ways, a right similar to a possessory interest. Because the native title is a title to land, not an ambiguous or wholly contingent right or combination of rights over land, these seemingly disparate views have something in common at their core.

Fejo v Northern Territory (1998)

Although Justice Kirby provided different justifications, the High Court unanimously decided in Fejo that native title was destroyed by a transfer in fee simple. Native title is extinguished by a grant in fee simple, according to the chief justice Gleeson and the justices Gaudron, McHugh, Gummow, Hayne, and Callinan in a joint judgement. This is because "the rights that are given by a grant in fee simple are rights that are inconsistent with the native titleholders continuing to hold any of the rights or interests which together make up the native title."

The Court expressly rejected attempts to compare native tide to other tenures that have long been acknowledged as compatible with a fee simple interest. Their Honours argued that native title rights may be differentiated from those deriving from these less significant tenures and that it is inappropriate to speak to those rights (those arising from tenure) in the current context. They are common law animals that trace their lineage to actual or alleged grants. However, when there is a conflict between rights that have their roots in two separate bodies of law and traditions, completely different factors come into play. The Fejo rulings provide legal support for the previous interpretation of the native title. For instance, "the rights which collectively comprise native tide" were mentioned in the joint judgement. Justice Kirby used the phrase "the bundle of interests we now term native title" in a similar manner. The native title rights were then included in the joint judgement. These concerning land usage "may include a right to hum, collect, or fish, a right to do rituals on the property, a right to keep the land in a specific state, or other such rights and interests."

The Judicial Approach to Principles of Property Law

Comparing the Court’s precedents set in Mabo, Milirrpum and Fejo judgments

The ruling in Mabo v. Queenslandestablished the legal theory of native title and opened the door for other First Nations’ land rights action. The decision's acceptance of native title raised several important legal issues. These included queries about the legality of titles issued that were covered by the Racial Discrimination Act of 1975, the legality of upcoming construction on the native title-affected property, and the methods for figuring out if native title existed in a piece of land. The Keating Administration passed the Native Title Act 1993 in reaction to the ruling, which established the National Native Title Tribunal as the initial arbiter of native title. For Aboriginal and Torres Strait Islander Australians, Mabo is extremely significant in terms of law, history, and politics. It invalidated the "terra nullius" theory, which colonial courts had previously used to deny the claims of First Nations people in Australia.

The judiciary in Millirpum v. Nabalco Pty Ltd has regarded the classification of territory as a matter of law rather than fact. Blackburn J found that the Aboriginal people of the Gove peninsula area were governed by their subtle system of law that was "highly adapted to the country in which led their lives, which provided a stable order of society," so the case was decided based on a legal principle that, once established, he found could not be overturned by re-examining historical evidence. Because they were Australian Aborigines and had maintained customary tenure, they did not, at common law, have any identifiable claim to the property. According to the ruling, in this case, Aboriginal Land Rights in Australia would need to be established by legislation.

References to extinguishment rather than suspension of native title rights were ruled to not be interpreted as any careless or incorrect use of language when describing the effects of a freehold title in the joint FeJo verdict. Native title rights are not affected by a gramme in fee simple in a way that is merely transitory or that depends on the land not eventually being owned by the Crown.

Courts’ application of ‘Settler-Colonial’ key property principle

The judges in the above-mentioned cases questioned the applicability of international precedents cited by the appellants to support their claims. The High Court contrasted the status of Indigenous peoples in Australia from those in other common law nations in light of different legal and political histories, breaking with the pattern in native title issues. The High Court thought about how injunctions may help applicants for native tide preserve their rights while they wait for a decision. especially the importance injunctions play in defending the freedom to bargain.

While the existence of Indigenous law is necessary to establish a claim for native title, it is not sufficient in and of itself to attract recognition under the common law in this opinion, which acknowledges that native tide may have its roots in Indigenous law. The High Court made a distinction between a native title that exists and a native title that exists in law as a result. As a result, it becomes more and more challenging to reconcile the notion that Indigenous law and custom serve as the foundation for native title. That is to say, an injunction could only be granted to a registered native title claimant if it could be demonstrated that the Act's requirements on the right to negotiate or other processes were in question. Whether or whether an "injunction should be granted will depend on the facts and circumstances of each unique case, with the type of threatening activity playing a significant role”.

Conclusion

The extinguishment of the native title looked to be much simpler for the legislature and administration to accomplish after the leading judgement of Ward more than ten years ago when the native title was characterised as a "bundle of rights." If the native tide is understood as a bundle of rights and interests under an Australian law or whether its core character is viewed to lay in the acknowledgement of Indigenous systems of law and culture is the key point of contention that emerges in cases and discussions on the nature of native tide. This quartet of High Court rulings in the aforementioned cases will hopefully have positive effects on native title.

By giving extinguishment a deeper meaning, the ruling in the aforementioned instances emphasises the relationship between freehold title and native title. The prospect of coexistence of Indigenous and non-Indigenous title to land was not considered. Regardless of any rights that may exist under Indigenous law, the judgement further established that native title does not reappear after being declared void by the common law and will not be reinstated. The matter of suspension regarding smaller interests, however, remains unsettled.

Bibliography:

Milirrpum v Nabalco (“Gove Land Rights Case”) (1971) 17 FLR 141
Mabo v Queensland (No 2) (1992) 175CLR 1.
Fryo 0- Mills V The Northern Territory 0- Oilnet (NT) Pry Itd (, Froyo)
Strelein, L. M. (1999). Fiction over fact: extinguishing native title in the Larrakia case: Jim Fejo and David Mills on behalf of the Larrakia People v The Northern Territory and Oilnet (NT) Pty Ltd.Indigenous Law Bulletin,4(18), 18-21.
Strelein, L. (2009).Compromised jurisprudence: Native title cases since Mabo. Aboriginal Studies Press.
Edgeworth, B. (2016). Extinguishment of native title: Recent high court decisions.Indigenous Law Bulletin,8(22), 28-34.

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