(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

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1 Native Title History! Despite the international recognition of Indigenous or native people in other sovereign countries! Australia s common law system did not formally recognise native right like it does now! Section 10 recognises and protects Native Title! Section 11- only extinguished under Native Title Act! The doctrine of terra nullius no longer holds Objectives of Native Title Act! Immediately after the Mabo decision the Native Title Act 1993 (Cth)! Amendments were made in 1996 after Wik! Section 4 states that it recognises and protects native title, title cannot be extinguished contrary to Act! Section 3 Sets out main objectives " The recognition and protection of native title " The establishment of ways in which future dealings that affect native title may proceed " The establishment of a mechanism for determining claims to native title " Provisions for validating past and intermediate acts! Section 223(2) hunting, gathering and fishing is also a native title right! Section 225 A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a nonexclusive agricultural lease or a non-exclusive pastoral lease--whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

2 ! Section 226(1) defines acts as those that affect native title! Section 226(2) provides examples " The making of legislation " The granting of licences, permits or authorities " The creation of any legal or equitable right " The exercise of any executive power of the Crown " Or an act that has any effect at common law or equity! Section 238 establishes a non-extinguishment principle! Section 238(2) states that if an Act affects Native Title, the Native title is not wholly or partly extinguished! Section 238(3) if act is inconsistent with native title rights and interests, native title continues to exist, though the rights and interests are considered to have no effect in relation to the act Definition of Native Title! Definition is set out in s 223(1)! Section 223(1) Usage of words traditional laws and customs Traditional means in practice before 1788! Ward, stated test of persistence and connection! Ward and Yorta stated that once connection has been broken, cannot be restored! Therefore indicates that common law native title still underpins native title in Australia! Since the interest must be recognised by the common law as based on traditional laws and customs of the people, who must show a connection with the land in question Native title Common law rights and interests (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia.

3 Native title tribunal! Section 107 established the National Native Title Tribunal! Section 169 appeals on matters of law to the Federal Court being allowed! The NNNT has two primary roles The mediation of Native Title Compensation and the administration of the futures act regime Extinguishment of Native Title! At common law, native title can be extinguished by legislation, by an inconsistent grant of interest over land where native title exists inconsistent with other rights, and by the acquisition of the Crown Gaudron and Deane JJ in Mabo (No 2) at 60! Native title can be extinguished in 3 ways 1. By the enactment of laws which themselves extinguished native title 2. Through the creation, by laws or executive acts, of rights in third parties which were inconsistent with the continued existence of native title 3. Through laws or acts by which the Crown acquired the complete beneficial interest in the land, such as by resumption or use of public works! Acts of extinguishment must be clear and unambiguous Mabo (No 2)! There may also be situations where there is no inconsistency between the statute and the existence of native title rights In which case there will be no extinguishment of rights! If inconsistency of rights granted, then native title rights will be extinguished to extent of an inconsistency Mabo (No 2) at 69! The question of how native title applies to other interests in land has also been considered by the HCA Native title may exist on rural leasehold land " Wik Peoples v Queensland Native title is extinguished by a grant of fee simple " Fejo v Cth Native title may exist in the sea and in the seabed beyond the low-water mark " Cth v Yarmirr Native title is extinguished by exclusive possession pastrol lease

4 Protection of interest in land History of protection of leaseholds! Originally real actions, became too complicated to seek justice! 16 th and 17 th century development of personal action, writ of trespass In the form of trespass! Later the English Common Law Procedure Act 1852 removed the technicalities of ejectment Retaining the action itself! More recently this action of ejectment has been abolished and replaced by an action for possession of land! Section 20 and 92 Civil Procedure Act 2005 (NSW) s 20 right to bring claim s 92 judgment Real actions! Real action for ejectment can remove person from property by operation of Civil Procedure Act 2005 (NSW)! s 20 right to bring a claim! s 92 judgement Trespass! Requires direct interference with land without lawful excuse E.g. Digging into land, flying over land, walking through land! Implied licence is when for e.g. gate is open! Implied licence extends to the driveway of the dwelling Halliday! Remaining on property after the withdrawal of implied licence is a trespasser Davis v Lisle

5 Remedies for other actions! Either damages or injunction Usually injunction in the default remedy for trespass or nuisance " LPJ Investments v Howard Chia Investments (1989) NSWLR! the plaintiff is prima facie entitled to an injunction Kelsen v Imperial Tobacco Co Ltd Remedies i. Injunction LPJ Investments Is the default remedy Usually the remedy in relation to land for trespass/nuisance ii. Damages If injunction fails, damages can be awarded Possession as an interest! English law has distinguished between ownership and possession of property! Common law has long recognised that there is no absolute ownership of land! In a dispute between two parties the courts were concerned with who had the better right to possession Not who was absolute owner! Thus title to land is relative! Initially title to land is called seisin! Now ownership is regarded as the largest possible bundle of rights in relation to both land and personal property! Possession itself is an interest, and can give rise to title Asher v Whitlock (1865) " Had a paper title in land but was dispossessed by B " Held by B s sucessor-in-title had sufficient proprietary interest in the land to recover the land from C who had in turn occupied the land! As a possessor you have the better interest than anyone except the true owner! jus tertii third party has interest in land! jus tertii doesn t exist anymore

6 Indefeasibility! Indefeasibility describes the protection which registration confers! Indefeasibility described as protection of registered proprietor of any estate or interest in land! Proprietor is defined in section 3(1)(a) RPA! any person seised or possessed of any freehold or other estate or interest in land! Section 42(1) RPA bestows indefeasibility of title not only on the registered holder of the fee simple, but also on the registered holder of any lesser or derivative interest in land! Such as mortgagee, charge, lessee etc! Section 118 RPA prohibits the recovery of land from the person registered as proprietor, except in certain situations Equitable interests! Common law provides strict precedents! Equity provides maxims, discretionary, flexible! Legal interest in torren s system is a registered interest! Equitable interest in torren s system is an unregistered interest! Types of equitable interest i. Contracts for sale of land " How: Gives power to the buyer to force the seller to complete the contract " Why: Arise to prevent inequitable or unconscionable dealing, equity holds one person to be trustee for another ii. iii. iv. Agreement to lease " How: Rather than giving lease, giving contract to create lease " Why: Unconscionability, unfair if someone promises lease and doesn t give Mortgagers equity and redemption " How: If payment was late, bank would keep house " Equity allowed party to pay within reasonable time Agreement to grant mortgage " Can I enforce the mortgage? o Can I get injuction or specific performance o Money has to be handed over