The meaning of radical title: the pre-Mabo authorities explained - part 1
Secher, Ulla (2005) The meaning of radical title: the pre-Mabo authorities explained - part 1. Australian Property Law Journal, 11 (3). pp. 179-208.
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Although cases decided in other colonial jurisdictions before Mabo and Others v State of Queensland (No 2) had recognised the Crown's 'radical title', the meaning of the term was not definitively explained. Consequently, it was possible for the majority judges in Mabo to attribute a meaning of something less than absolute beneficial ownership to the term, while the sole dissenting judge attributed a meaning of nothing less than absolute beneficial ownership to the term. Nevertheless, post-Mabo, it has generally been assumed that Crown's 'radical title' connotes a full and unfettered proprietary right except to the extent of native title, This two-part article shows, however, that this assumption fails to appreciate the significance of the historical meaning of radical tit/e.. It is argued that, as a legal concept, radical title is a bare legal title which does not automatically confer beneficial ownership of the land to which it relates.
Part 1 explains that, contrary to the received view, the leading Privy Council authorities on the nature of the Crown's title to land which is subject to pre-existing title are not authority for the proposition that the Crown has a present proprietary estate underlying the pre-existing title, nor the proposition that the Crown's radical title is necessarily a full and present proprietary estate in respect of land not subject to pre-existing rights. It is also shown, by reference to American authority, that the reason for concluding that the Crown holds the unalienated and unoccupied lands of a settled colony in demesne is the confusion of international law and municipal law, sovereignty and property.
|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 1. Australian Property Law Journal, 11 (3). pp. 179-208.
|Date Deposited:||09 Sep 2009 06:41|
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