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Tenure means the quality of the title and the conditions upon which the land is held. At
common law, only the Crown can own property in the absolute sense, so all other
ownership is of lesser quality.
In 1066, the Norman brought the feudal system to England, which was set up to control
noblemen. The Crown owned all land and could hand out tenure to nobles.
Free Tenure right to quiet enjoyment and access to royal courts. Could be earned by:
1. Seisin legal possession which was heritable
2. Lay service included serjeanty (services like food), socage (agricultural services
like farming: quit rent which is much like a wage) and knight service.
3. Spiritual service frankalmoign and divine service (those who worked in the
church were given property in return for conducting church services and
ceremonies)
Unfree Tenure no right to go to court
No seisin. Often in the form of villeinage or copyhold the tenant would render
services to the Lord of the Manor.
University of Queensland
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Freehold tenure is without any incidents or obligations for the benefit of the Crown. If a
person dies intestate without next of kin their land will pass to the Crown bona vacantia.
University of Queensland
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annexation of the Murray Islands to Queensland and to retrospectively extinguish all rights
of the Murray Islanders without the payment of compensation.
The High Court found that the Queensland legislation was invalid because it was
inconsistent with the Racial Discrimination Act 1975 (Cth) s 10. The legislation discriminated
against the Murray Islanders and was therefore invalid under s 109 of the Constitution.
Mabo (No 2) (1992)
The High Court found in favour of Plaintiffs. The Murray Islanders claimed rights to their
traditional lands according to their local custom, their traditional title, and their actual use
and possession of their lands.
The High Court found that native title (the rights of the indigenous inhabitants in accordance
with their laws and customs) is recognized by the common law of Australia. The Murray
Islanders were entitled to the occupation, use and enjoyment of the lands of the land (with
some exceptions). The title of the Murray Islanders was subject to the government's power
to validly extinguish it, subject to the Racial Discrimination Act 1975 (Cth).
Important findings:
Acquisition of sovereignty did not mean full Crown ownership of land; it only meant
acquisition of Australia as a country.
A modified doctrine of tenure continues, but the Crown holds a radical title to land
in Australia, whereby native title is a burden on the Crowns radical title.
Therefore pre-existing rights of the Indigenous peoples survived the Crowns acquisition of
sovereignty without any express recognition by the Crown.
Brennan J: The theory that the Indigenous inhabitants of a settled colony had no
proprietary interest in the land thus depended on a discriminatory denigration of
Indigenous inhabitants, their social organization and customs. As the basis of the
theory is false in fact and unacceptable in our society, there is a choice of legal
principle to be made in the present case.
University of Queensland
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Radical Title
It is a foundational title to land which includes the power to govern the country and grant
interests in the land. However, in Australia, it is not complete and absolute ownership of the
land; it is a bare title to land. If Australia were truly terra nullius, radical title would become
into absolute beneficial title of the Crown. Radical title is also referred to as an ultimate or
final title.
A radical title is consistent with native title rights and interests which the common law
recognises and protects. The Crown can extinguish native title rights, but it must manifest a
clear intention to do so.
Thus, unallocated land post-Mabo is land that is held under a radical title subject to the
existence of non-extinguished native title.
In response to Mabo, the Federal Government passed the Native Title Act 1993 (Cth).
University of Queensland
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