Smoke, curtains and mirrors: the production of race through time and title registration

This article analyses the temporal effects of title registration and their relationship to race. It traces the move away from the retrospection of pre-registry common law conveyancing and toward the dynamic, future-oriented Torrens title registration system. The Torrens system, developed in early colonial Australia, enabled the production of ‘clean’, fresh titles that were independent of their predecessors. Through a process praised by legal commentators for ‘curing’ titles of their pasts, this system produces indefeasible titles behind its distinctive ‘curtain’ and ‘mirror’, which function similarly to magicians’ smoke and mirrors by blocking particular realities from view. In the case of title registries, those realities are particular histories of and relationships with land, which will not be protected by property law and are thus made precarious. Building on interdisciplinary work which theorises time as a social tool, I argue that Torrens title registration produces a temporal order which enables land market coordination by rendering some relationships with land temporary and making others indefeasible. This ordering of relationships with land in turn has consequences for the human subjects who have those relationships, cutting futures short for some and guaranteeing permanence to others. Engaging with Renisa Mawani and other critical race theorists, I argue that the categories produced by Torrens title registration systems materialise as race

The Mabo decision - preserving the distinction between 'settled' and 'conquered or ceded' territories

In Mabo and Others v State of Queensland (No.2), Brennan J concluded that the preferable rule, namely, that a ‘mere change in sovereignty does not extinguish native title to land,’ ‘equates the indigenous inhabitants of a settled colony with the inhabitants of a conquered colony in respect of their rights and interests in land.’ As a result of this conclusion, some commentators have assumed that the High Court has rendered the distinction between settled and conquered or ceded territories otiose. Consequently, it has been argued that, at common law, recognition of Aboriginal land rights entails recognition of other aspects of Aboriginal customary law. Crucially, however, this argument overlooks the High Court’s rationale for the conclusion in Mabo. Indeed, this article explains that the decision in Mabo in fact highlights the distinction between settled territories and conquered or ceded territories; the analogy which Brennan J refers to being expressly limited to one particular aspect of the rights of the inhabitants of a conquered colony: their rights and interests in land. Thus, although Aboriginal customary law can be a valid source of legal rights if it satisfies a number of requirements, recognition of Aboriginal customary laws, beyond those relating to land, cannot be based upon the Mabo rationale. Indeed, the recent Queensland Court of Appeal decision in Jones v Public Trustee of Queensland and Another highlights this dichotomy: the Court observing that the appellant’s Aboriginal customary law submission ‘appears to be based on a misconception of what was decided by the High Court in [Mabo].’ The Court did not however, go further and identify the rationale underlying the High Court’s recognition of native title: thus, the purpose of this article. It will be seen that, although the Mabo High Court accepted that Australia was a settled territory, the new element introduced by the Court was the recognition of a new class of settled colony at common law: a settled, yet legally inhabited, colony. Consequently, the High Court was free to prescribe (and indeed had to prescribe because there was no law on point) a doctrine relating to the law that applied in the colony. It will be seen that this modified doctrine of reception included the interrelated doctrines of tenure (as redefined by the High Court) and continuity pro tempore (a merged version of the continuity and recognition doctrines)

The concept of 'operational inconsistency' in Australia: implications for native title - the common law and statutory positions. Part II - the development of 'operational inconsistency' in Australian jurisprudence: the Ward High Court decision and beyond

Part 1 considered the potential legal implications for affected native title of the different judicial approaches adopted by the courts vis á vis the existence, effect and scope of 'operational inconsistency' before the High Court's decision in Ward. It was seen that during the pre-Ward stage of the development of the concept, its existence as part of the common law of Australia appeared certain and its scope was defined by its application to specific fact situations: the concept of 'operational inconsistency' was a qualification on the 'inconsistency of incidents' test. Part II addresses the Ward High Court decision and beyond as well as the interrelationship between the common law and statutory concepts of 'operational inconsistency'. Although the High Court in Ward questioned the concept of 'operational inconsistency', the court did not reject the theory and suggested that, at least in some circumstances, the effect of 'operational inconsistency' would result in suspension rather than extinguishment of native title. The High Court did not, however, clarify the principles that should guide this area of the law. The High Court's dicta on the effect of 'operational inconsistency' has, therefore, been subject to different interpretations by the Federal Court in Daniel v Western Australia and in De Rose v South Australia. Since the NTA presupposes the existence of the concept of 'operational inconsistency' at common law, the effect of the statutory concept of 'operational inconsistency' on affected native title rights depends upon the effect of its common law counterpart. Although post-Ward judicial consideration of the concept has further delineated its scope, the legal effect of the common law concept of 'operational inconsistency' must be resolved as is evidenced by the procedural issues highlighted in Turrbal People v Queensland

A common law doctrine of suspension of native title?: judicial interpretations of the 'reversion expectant argument' and the concept of 'operational inconsistency' - Part 2

Although the majority of the High Court in Western Australia v Ward rejected any question of common law suspension of native title rights, the court's treatment of this issue is not only obiter but based upon circular reasoning. Indeed, this article shows that sound principles and authority\ud support a concept of suspension of native title rights at common law. Moreover, aspects of the Ward High Court's decision are consistent with this result. Crucially, it will be seen that support for a common law concept of\ud suspension has two possible doctrinal underpinnings. The first is based upon the Wik High Court's treatment and rejection of the reversion expectant theory espoused by Brennan J in Mabo. That is, since the Crown does not acquire a beneficial reversionary interest on the grant of a lease,\ud the Crown's title does not, at the expiration of the lease, stand in the way of the existence of any native title. The second is based upon the effect of the concept of 'operational inconsistency'. That is, a mining or pastoral lessee might exercise their rights under the lease in a way that would prevent the exercise of some relevant native title right or interest for so long as the lessee carries on that activity. The article is divided into two parts: Part I\ud considers the pre-Ward High Court position and Part II addresses the Ward High Court decision and beyond

The legal nature of the Crown's title on the Grant of a Common Law Lease Post Mabo: implications of the High Court's treatment of the 'Reversion Expectant' argument: part 1

It is trite law that, upon the grant of a pastoral lease which is indistinguishable from the pastoral leases examined in Wik, the Crown does not acquire a beneficial reversionary interest, with the result that the underlying title of the Crown continues to be mere radical title. This does not, however, resolve the legal position with respect to other leases: in particular, the Wik High Court made it clear that the pastoral leases in question were not leases in the common law sense. This two-part article, therefore,\ud examines the legal implications of the High Court’s treatment of the reversion expectant argument for common law leases. Although the High Court’s decision in Ward has confirmed that, as a result of the Native Title Act 1993 (Cth), the grant of such leases extinguish native title, does this necessarily mean that any residuary rights to the land in respect of which the lease was granted automatically lie with the Crown? Part I begins by examining whether, on general principles, the High Court’s identification of radical title as both a postulate of the doctrine of tenure and a concomitant of sovereignty support or undermine Brennan J’s reversion expectant dictum. The relevance of traditional English interpretations in determining the meaning of radical title and reversion expectant, in light of Brennan J’s dictum, is also analysed.\ud In Part II it will be seen that the rationales underlying the majority judgments in Wik indicate how the legal implications, for the Crown’s title, of the statutory grant of interests in land other than pastoral leases, including the grant of a true common law lease, might be resolved. The question examined in Part II is twofold: does the Crown grant of a common law lease based upon its radical title mean that the Crown acquires the reversion expectant on the expiry of the term? And, if it does, is such reversion\ud expectant sufficient to convert the Crown’s radical title into beneficial ownership of the land? Put another way, is the traditional common law definition of ‘reversion’ relevant when a lease is granted out of land in respect of which the Crown has mere radical title? Further light is thrown on this question by examining the common law doctrine of extinguishment by freehold grant and the common law concepts of partial extinguishment and suspension

Implications of the Crown's radical title for statutory regimes regulating the alienation of Land: 'Crown Land' v 'Property of the Crown' Post-Mabo'

It is clear from the High Court's decisions in Wik and Ward that, for the purpose of the statutory regimes regulating the alienation of land in Australia, 'Crown land' means land in respect of which the Crown has 'radical title'. Although the concept of radical title had emerged in Mabo, it was not unequivocally clear whether it denoted a bare legal title sufficient to support the Crown's right to acquire and confer title or a full beneficial interest except to the extent of native title. This article argues that, because both legal authority and principle support the former interpretation of radical title in the context of general schemes of land regulation, the pre-Mabo view that statutory definitions of 'Crown land' refer to land which is the 'property' of the Crown no longer reflects the law in Australia. It will he seen that this conclusion is consistent with the High Court's treatment of residuary rights to, and resumptions of, Crown land in Wik and Ward respectively, as well as the policy and purpose of the legislation relating to Crown land and the post-Mabo High Court's analysis of it generally and, in particular, the statutory trespass provisions. It is also consistent with the constitutional settlement of the mid-19th century, by which the Crown's prerogatives to grant interests in land and to appropriate land to itself were displaced by statutory powers: although this effected a transfer of political power and not title, the statutory definition of 'Crown land', like the common law definition of 'waste lands', presupposed, rather than conferred, the Crown's title to unalienated land. Further support for the proposition that, irrespective of the presence of native title, the Crown must exercise its sovereign power before its radical title converts to full beneficial ownership, before 'Crown land' becomes 'Crown property', is provided by the Crown's power of eminent domain: a power which compliments the Crown '.'I radical title and shares the same underlying rationale

A common law doctrine of suspension of native title?: judicial interpretations of the 'reversion expectant argument' and the concept of 'operational inconsistency' - Part 2

Although the majority of the High Court in Western Australia v Ward rejected any question of common law suspension of native title rights, the court's treatment of this issue is not only obiter but based upon circular reasoning. Indeed, this article shows that sound principles and authority support a concept of suspension of native title rights at common law. Moreover, aspects of the Ward High Court's decision are consistent with this result. Crucially, it will be seen that support for a common law concept of suspension has two possible doctrinal underpinnings. The first is based upon the Wik High Court's treatment and rejection of the reversion expectant theory espoused by Brennan J in Mabo. That is, since the Crown does not acquire a beneficial reversionary interest on the grant of a lease, the Crown's title does not, at the expiration of the lease, stand in the way of the existence of any native title. The second is based upon the effect of the concept of 'operational inconsistency'. That is, a mining or pastoral lessee might exercise their rights under the lease in a way that would prevent the exercise of some relevant native title right or interest for so long as the lessee carries on that activity. The article is divided into two parts: Part I considers the pre-Ward High Court position and Part II addresses the Ward High Court decision and beyond

The High Court and recognition of Native Title: distinguishing between the doctrines of terra nullius and 'desert and uncultivated'

[Extract]\ud In a rare interview "With The Weekend Australian in February 2006,1 Sir Anthony Mason, former Grief Justice of the High Court of Australia, responded to claims by historian, Michael Connor, in his book The Invention of Terra Nullius: Historical and legal fictions on the foundation of Australia, that the doctrine of terra nullius is a new concept, introduced into legal and political debate as recently as the 1970s. Indeed, the essence of Connor's argument lies in the syllogism that the doctrine of terra nullius did not exist in 1788; Captain Cook claimed sovereignty over Australia in 1788; therefore, Captain Cook could not have claimed sovereignty as a result of the doctrine of terra nullius. Moreover, according to Connor, this syllogism provides the basis for challenging the validity of the High Court's decision in Mabo and Others v State of Queensland (No.2) ('Mabo'). In this context, Connor's contention is threefold: first, that the doctrine of terra nullius was 'invented' by historian, Henry Reynolds, in his work The Law of the Land, secondly, that the doctrine of terra 1lullius is, therefore, a modem fiction rather than the legal foundation of Australia's sovereignty; and, thirdly, because the Mabo decision was based upon Reynolds' flawed invention of the doctrine of terra nullius, the Mabo decision was itself flawed. Thus, Connor purports to discredit the doctrine of terra nullius and with it - the decision in Mabo

The reception of land law into the Australian colonies Post-Mabo: the continuity and recognition doctrines revisited and the emergence of the doctrine of 'continuity pro-tempore'

In Mabo and Others v State of Queensland (No.2), the High Court undermined the basic assumption that had guided all Australian real property law since colonisation: the legal consequences that flow from the feudal character of the English doctrine of tenure no longer apply ipso jure in Australia; title to land is no longer exclusively derivative; all titles to land can no longer, theoretically, be traced back to a Crown grant. Consequently, although the High Court confirmed that the doctrine of tenure is an essential principle of Australian land law, six members of the Court made it clear that the grundnorm of Australian real property law is no longer the English, and thus feudal, doctrine of tenure; instead, it is the Australian doctrine of tenure with radical title as its postulate. Nevertheless, since the decision in Mabo, discussion has focused on the meaning of native title and the practical implications of its judicial recognition. This paper, however, considers the effect of the Court’s decision on the reception of English land law. Indeed, it will be shown that the applicability of the Australian doctrine of tenure was only possible because the High Court clarified the doctrine of reception as it applied to Australia. Although the High Court accepted that Australia was a settled territory, the new element introduced by the Court was the recognition of a new class of settled colony at common law. By ascribing to Australia the status of a settled, yet inhabited, colony, the Court was free to prescribe a doctrine relating to the law that applied in the colony. In doing so, the Court considered the relevance of the doctrines of continuity and recognition as well as the scope of the Crown’s prerogative powers in a settled, yet inhabited, colony. It is argued that, as a result of the High Court’s restatement of the common law, there is a new doctrine prescribing the system of law that applies upon settlement of an inhabited territory: a modified doctrine of reception, which includes the doctrine of continuity pro tempore (a merged version of the continuity and recognition doctrines)

Native Title: An exception to indefeasibility and a ground for invoking the deferred indefeasibility theory

Neither the Native Title Act 1993 (Cth) nor the various State and Territory real property Acts adequately address the effect upon native title of the administrative act of registering an instrument creating or affecting ordinary (non-native title) interests in land under the Torrens system of land registration. The possibility that native title qualifies the concept of indefeasibility of title in two situations is examined in this paper. The first possible qualification relates to whether or not registration of a statutory grant of land made pursuant to land rights legislation attracts the indefeasibility provisions of the Torrens statutes vis a vis native title. The second possible qualification stems from the Federal Court decision in Hayes v Northern Territory. It relates to whether or not registration of an invalid 'previous exclusive possession act', which is relied upon to confirm the extinguishment of native title, confers an indefeasible title on the registered proprietor in relation to native title. The practical legal implications of classifying native title as an exception to indefeasibility and as a ground for invoking the deferred indefeasibility theory are considered. Two theoretical rationales underlying a native title exception to indefeasibility are also suggested