UTS DAB Property Rights and Landlord Tenant Law Report

This report addresses the legal issue of whether native title rights exist over a farm owned by Anna, focusing on 200 acres of fee simple and 100 acres covered by a pastoral lease. It examines the Native Title Act 1993, emphasizing the need to prove traditional connections pre-dating British settlement and continuous existence of these rights. The report analyzes key legal concepts such as continuous connection, extinguishing native title, and legal inconsistency, referencing cases like Mabo v Queensland and Wik Peoples v State of Queensland. The report concludes that Anna possesses native title rights, and her title has not been extinguished, as she meets the requirements of the Native Title Act and has not engaged in any activities that would extinguish those rights. The report also briefly mentions the extinguishment of native title rights in the case of a mining company's lease.

Property Rights and Landlord Tenant
Law

Table of Contents
Legal Issue.................................................................................................................................3
Law and Regulations..................................................................................................................3
Applicability of relevant law......................................................................................................5
Conclusion..................................................................................................................................6

Legal Issue
The legal issue in the case is that whether Anna’s native title right exist over any part of the
farm.
Law and Regulations
Native Title Act 1993
The Native Title Act 1993 provides process for making claims relating to native titles.
Further Native Title recognizes specified right and interest over land or waters where
Aboriginal and Torres Strait Islander groups have practiced and continue to does same1. In
order to recognize title the key variant to be proven is that whether traditional connection to
the area is still continued or not. In case connections under traditional law does exist with
entire property than group is provided native title in appropriate manner.
Pre-date British settlement
It cannot possess any latest legal right.
Traditional Law and custom
Traditional law and custom can be defined as means of transmission of law or custom i.e.
traditional law which has been continued from generation to generation. It can be specified as
age of laws and custom which does exist in normative rules of the Aboriginal and Torres
Strait Islander societies which existed before existence of sovereignty of British Crown.
Further normative system is a system in which traditional law and custom which are owned
by group or individual had continuous existence and vitality from sovereignty.
The decision was made in case of Members of Yorta Aboriginal Community v Victoria
(2002) 214 CLR422 that relevant laws or customer providing connection are required to be
continued in “substantially uninterrupted ” manner since its imposition of sovereignty by
British2. However, in case it is not possible to prove that traditional laws and customer are
‘substantially uniterrupted’than law and customs which are presently acknowledged and
assessed could not be properly claimed as traditional.
1 The Native Title Act 1993
2 Yorta Aboriginal Community v Victoria (2002) 214 CLR422

Continuous Connection
The decision was made in case of Mabo v Queensland (No 2) (1992) 175 CLR 1 per Toohey
J at 188; per Deane and Gaudron JJ at 86 that no specific requirement relating to type of
connection is required. But it is necessary that coincidental or random (having meaning in
relation to society in economic, social or cultural). Further the connection could be spiritual,
economic or could cover both the characteristic. Even decision has been in case of De Rose v
South Australia (2003) 133 FCR 325 that physical connection is not required on mandatory
basis. In other words it can be stated that it is not necessary that to acquire native title, group
or individual should have maintained continue physical connection with specified property
for survival of native property3. However, the fact cannot be denied that physical connect is
relevant variant to assess to extent of available connection. The adequate connection could
also exist in case no evidence existed relating to use of land.
The variants on the basis of which connection is assessed depend on the provision stated in
traditional law or custom relating to the connection. It is necessary for court to assess the
content of indigenous land or customs as well as whether specifies laws or customer develops
connection with land or not.
Proving Connection
The burden of proving connection depends on the claimant of native title. The specified
decision has been made in case of Mabo (No 2) per Brennan J, at 60; per Deane and Gaudron
JJ at 110 that individual who claim for native title is required to prove that they are
descendants of those who had native title rights and interest at the time of acquisition of
sovereignty.
Extinguishing Native Title
In accordance with decision made in case of Mabo (No 2), Native title will be quenched in
case a group has not existed continuously as identifiable community with traditional rights
and interest from the time of acquisition of sovereignty by the crown4. In simple words it can
be stated that Native title, no longer exists in case a community does not continue its
traditional law and customs or its connection with the land. Moreover, the native title is
expired in case community does not comply or maintains its connection with land over land.
3 De Rose v South Australia (2003) 133 FCR 325
4 Mabo v Queensland (No 2) (1992) 175 CLR 1

It has been concluded in case of Wik Peoples v State of Queensland (1996) 187 CLR 1 and
Western Australia v Ward (2000) 170 ALR 159 that crown relating to Native title could be
extinguish by provisions and regulations which extinguish native title or by provision or law
with create right for third parties in respect of piece of land subject to native title which are
not in compliance with continued right of enjoying native title56. In addition to this, the crown
may extinguish native title through rules and regulations by which the crown obtains whole
beneficial proprietorship on property which is related with native right title. Moreover,
extinguishment is ascertained by the degree to which rights or interest provided to third party
in connection with land is legally not in accordance with the regular pleasure of part or whole
native title right. The meaning of legal inconsistency is determined in the legal case of Fejo v
NT ( HCA)7. According to this, in case of common law lease, grantee possesses exclusive
possession over the property. in other words, it can be said that other than common law lease,
any other person do not have any right to use such land, and if any third party occupy the land
and use that land for any purpose without permission, then it is considered as legal
inconsistency. Court considers native title as a bundle of rights instead of interest in land.
Moreover, for the examination any extinguishment of native title right it is essential to
observe rights on native title and also the rights obtained from Crown that could make impact
on native title. It requires the detail inspection of each legal activity that makes the impact on
land, consisting of grants and dealing that has expired earlier. In addition to this, there are
two types of extinguishment such as whole extinguishment, and partial extinguishment.
Whole extinguishment removes all native rights, and on the other hand, partial
extinguishment removes only some native rights.
Applicability of relevant law
By considering the given facts there has been no new right it is because there was an option
for renewal of lease for 75 years apart from existing 75 years. It means that lease can be
extended up to 150 years in total. Therefore, Anna has right to continue the lease as per legal
right. This scenario does not give right to any new aspect further extension as there is existing
agreement by the option of renewal of lease by 75 years. It is necessary for the claimant of
native title to prove the connection with the owner of native rights at the time of acquisition
of sovereignty. The decision of case law Mabo (No 2) per Brennan J, at 60; per Deane and
5 Wik Peoples v State of Queensland (1996) 187 CLR 1
6 Western Australia v Ward (2000) 170 ALR 159
7 Fejo v Northern Territory (1998) 195 CLR 96

Gaudron JJ at 110 can be applied to present case of Anna as she is daughter of Andrew to
whom whole property was provided by John. John was the individual who owned rights at
the time of acquisition of sovereignty. Thus it can be proved that biological descent does exist
in present case as per traditional laws and customs. Further, connection with land consist
occupation of land as well as it can be proved with physical presence on the land at the time
of acquisition of land. Even the connection could be shared with other groups. The specified
provision can be co-related with existing case as land available with Anna has been used for
farming purpose throughout the life of father of Anna; thus it would be appropriate to
conclude that connection does exist as per requirement of Native Title Act 1993. The
connection established here is with farming occupation which was initiated at the time of
acquisition of land and has been continued since then. In addition to this, it has been observed
that native title can be extinguished only if society does not comply with its traditional law or
custom or its link with land. Further, if community does not maintain its connection with
land, then in such case native title gets expired. In addition to this, if there is legal
inconsistency of rights, then also native title extinguished. In the given case, it has already
explained that Anna satisfies requirement of Native Title Act 1993. Further, there is not any
activity over the land by Anna who assists in extinguishment of right and also not any legal
inconsistency arose. On the basis of this, it can be said that native title right not have been
extinguished since community does not abandoned its traditional rules and custom or its link
with land and Anna also not fails to maintain its connection with land. However, in case of
mining company named as CLS , lease was granted only for eight year. After that, native title
right for company extinguished and therefore it does not possess native title right.
Conclusion
On the basis of above analysis, it has been seen that traditional law or custom is refers as
transfer of regulations or custom from generation to generation in society. In has been
concluded that Anna possess native title and his title does not extinguished.