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Week 7 Native Title - Coggle Diagram

- - - - Brennan J. (the leading judgment)
        
        82…Aborigines were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement. Their dispossession underwrote the development of the nation.
        
        A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title.
  - - - Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.
        ‘43… Native title is extinguished by a grant in fee simple. And it is extinguished because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title. An estate in fee simple is, "for almost all practical purposes, the equivalent of full ownership of the land"[51]
      - It simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title.’
      - Decision
        In the end the majority judgement decided that the rights originally granted were inconsistent with native title.
  - - - In this significant case, the High Court was asked to consider if pastoral leases granted pursuant to the Land Act 1910 (Qld) and the Land Act 1962 (Qld) had the effect of extinguishing native title.
  - - - Native Title Act 1993 (Cth)
        
        4 which added in the concepts of “exclusive possession acts” and “non-exclusive possession acts”
    - - S 242(1) contains a definition of ‘lease’.
        The judgment rejected the adverse dominion test developed and applied in Delamuukw v British Columbia.
      - lease confers the right of exclusive possession on the lessee the proper order of inquiry is first to examine what are the rights granted and only then to classify the grant.
      - Pastoral leases granted under the early Land Regulations, the Land Act 1898 or the Land Act 1933 conferred no right of exclusive possession on the grantee.
      - The reservation or provision in favour of Aboriginal access cannot, then, be seen as qualifying an otherwise general right to exclude. It follows that upon the happening of the contingency of enclosure or improvement contemplated by the reservation or provision, those who would enter or use the land as native title holders could continue to do so. Those who could no longer do so were those Aboriginal persons who, although within the terms of the reservation, were not native title holders.’
- - - - There must be an identified community or group connected with the land. This connection must have been shown to have been in existence at the time of British settlement and the group making the claim must be able show links with the group who occupied the land at the time of British settlement;
        
        There must be a traditional connection with, or occupation of, the land under the laws and customs of the indigenous peoples; and
        
        There must be a substantial maintenance of the connection with, or occupation of, the land. This will be a question of fact to be determined.
- - - - Following the reform to the Land Act in 2015, State land in Queensland now includes as tenure categories:
        
        • Non-Freehold Land;
        
        • Unallocated State Land;
        
        • State leasehold; and
        
        • Freeholding Tenure.
        
        Land Act 1994 (Qld)
        
        • s 4 (wide objects)
        
        • s 5 (‘Unallocated State land’ formerly known as ‘crown land’)
        
        • s 15(1) the issue of freeholding leases
        
        • Ss 155A-B (leases can be granted for up to 100 years)
        
        • s 28 interaction with the Native Title Act 1993 (Cth)
        
        • Ch 6-Registration and Dealings especially s 275–Registers comprising land registry