The meaning of radical title: the pre-Mabo authorities explained - part 2
Secher, Ulla (2005) The meaning of radical title: the pre-Mabo authorities explained - part 2. Australian Property Law Journal, 11 (3). pp. 209-243.
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This two-part article examines the juridical nature of radical title: does it confer full and unfettered beneficial title except to the extent of native title, or is it a bare legal title? Part 1 explained that, contrary to the received view. the leading Privy Council and American authority in this context supported the latter interpretation. In Part 2 it is shown, also contrary to the orthodox view, that not only is New Zealand authority directly relevant in the context of an inhabited settled colony such as Australia, but that such authority also supports the inchoate nature of the Crown's property rights upon acquisition of sovereignty It is also shown that, even before the High Court's fundamental restatement of the common law as it applies to Australia in Mabo, the High Court had described the nature of the title acquired by the Crown upon settlement as something less than a full proprietary estate underlying any pre-existing title. Nevertheless, the Mabo High Court attributed authority for the proposition that ownership of unalienated land which is not subject to native title must lie with the Crown since there is 'no other proprietor' to Stephen CJ in Attorney-General (NSW) v Brown. It is explained, however, that not only is this aspect of the decision in Attorney-General (NSW) v Brown incorrect in law, but more importantly, the Court's reason for rejecting defense counsel's argument - that the Crown did not have any property in the waste lands of the colony of New South Wales - can be distinguished post-Mabo.
|Item Type:||Article (Refereed Research - C1)|
Reproduced with permission from LexisNexis. Published in Australian Property Law Journal. Secher, Ulla (2005) The meaning of radical title: the pre-Mabo authorities explained - part 2. Australian Property Law Journal, 11 (3). pp. 209-243.
|Date Deposited:||20 Sep 2009 22:14|
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