QLD Week 8: State Land in Qld and Native Title EXAMS ALREADY VERIFIED 2023
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Course
QLD
Institution
QLD
Reference Readings - APL Ch 3, [3.76-3.128]
APL (11thed) Ch 3, [3.63-3.110]
Edgeworth B, 'Tenure, Allodialism and Indigenous Rights at Common Law: England, United States and
Australian Land Law Compared after Mabo v Queensland' (1994) 23 Anglo-American Bar Review 397
State plays a role in relat...
QLD Week 8: State Land in Qld and Native Title EXAMS ALREADY VERIFIED 2023 Refere nce Readings - ✔✔ APL Ch 3, [3.76 -3.128] APL (11thed) Ch 3, [3.63 -3.110] Edgeworth B, 'Tenure, Allodialism and Indigenous Rights at Common Law: England, United States and Australian Land Law Compared after Mabo v Queensland' (1994) 23 Anglo -American Bar Re view 397 State plays a role in relation to land in the following ways... - ✔✔ a) Original source of private title b) Residuary holder of land granted on limited tenure c) Holder of land retained for 'public purposes' d) Holder of parts of land reserved fr om grants to individuals e) Regulator of the development and use of private land. Common law's recognition of Native Title - ✔✔ a) The relationship between Indigenous people and property law b) The relationship between Indigenous peoples and land. The retention by Qld of a significant system of State (Crown) leasehold - ✔✔ Indicates that land continues to serve national and social purposes. Following the reform to the Land Act, State Land in Qld now includes as tenure categories... - ✔✔ 1. Non -freeho ld land 2. Unallocated State Land 3. State leasehold 4. Freeholding tenure Legislation - key sections of the Land Act 1994 (Qld) include: - ✔✔ 1. s 4 (wide objects) 2. s 5 (unallocated state land, formerly crown land) 3. s 15(1) the issue of freeholding le ases 4. ss 155A -B (leases can be granted for up to 100 years) 5. s 28 (interaction with the Native Title 1993 Cth) 6. Ch 6 - Registrations and Dealings especially s 275 - Registers comprising land registry Mabo v Queensland (No 2) (1992) 175 CLR 1 High Co urt of Australia - ✔✔ Brennan J (leading judgment): Refer to study guide. Summary of the common law in light of Mabo 2 - ✔✔ - Recognised the existence of common law native title in Australia. - The recognition of native title to the land means that, in cer tain circumstances, the ownership by the Crown of the land will not be absolute. - The Crown will have radical title (that is title subject to native title). In terms of common law native title, beneficial ownership belongs to the indigenous claimants to the land. - Common law native title is based upon as assessment of the possession of the land by indigenous claimants Three main elements required to prove a claim for common law native title - ✔✔ 1. 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. The group making the claim must be able to show links with the group who occupied the land at the time. 2. There must be a traditional connection with, or occupation of, the land under the laws and customs of the Indigenous peoples. 3. Must be a substantial maintenance of the connection with, or occupation of, the land. This will be a question of fact to be determined.
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