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explain the doctrine of tenure

Doctrine of tenure –
The legal regime under which people own land in Australia
is a legal doctrine vesting ownership of all land in the crown
social system of feudalism
o Initially Aus’t was deemed ‘terra nullis’ thus Australian land became vested in the crown and the crown made prospective grants of land to landholders
o Need to look back to 1066 England
o William the conqueror - sovereign
o Land for labour arrangements
o Effectively adopted in Australia even though feudal organisations had long since passed


Explain the Mabo case

o Facts of the case:
o Overturned terra nullis and amended the doctrine of tenure
o Plaintiffs = Murray islanders (Merriam people)
o Claiming rights to land and waters in the Murray people
o Continued occupation

What did the court discuss:
o Rejected notion of terra nullius
o Criteria for claiming native title
o Extinguishment of native title rights

• Can we change the doctrine of tenure in Australia?
• Court rejected the doctrine of terra nullius and therefore foundations of settlement
• Left with a modified version of doctrine of tenure (Contemporary position)
• Paved the way for native title
• Native title is an example of allodial title (ownership independent of landlord / crown)


Common law native title can be extinguished?

o Has been extinguished on wastelands of the crown that have been validly appropriated for use
o Group entitled to land cease to acknowledge those laws or customs and lose connection with the land or the death of last members of the group
o Native title over any parcel can be surrounded to the crown voluntarily


The Commonwealth Government enacted the “Native title Act 1993” in order to regulate the native title process
The main objective of the Act were:

1. Provide recognition and protections of native title
2. Establish ways in which future dealings affecting native title may proceed and to set standards for those dealings
3. Establish a mechanism for determining claims to native title
4. Provide validation of past acts and intermediate period acts invalidated because of the existence of the native title


In order to register a native title claim wit the federal court a registration test is applied. The test under s 190B requires amongst other things identification to the satisfaction of the register :

o Area
o Claimant (person / group)
o Native title rights and interests being claimed
o Associated predecessors
o Traditional laws and customs support native title claim
o That claimant continued to support native title in accordance with traditional laws
o Claimant had a physical connection with the land or waters


The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where

the rights and interests are possessed under the traditional law acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.

Hunting, gathering and fishing covered:
(2) Without limiting subsection
(1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.


What is adverse possession

The doctrine of adverse possession highlights the distinction between the possession of land and of documentary title to land and how possession over time can become good title

Possession of the land by someone other than the documentary title holder adverse to propriety rights and interests of the documentary title holder giving rise to a right to title

A legal claim that can come about when someone obtain possession to land without the permission of the person who has the right to immediate possession


Explain adverse possession

A legal claim that can come about when someone obtain possession to land without the permission of the person who has the right to immediate possession

o Possession
o Without permission (otherwise is a tenancy)
o Continuous (but can have different possessors)
o When someone obtains possession without the owners permission
* KY Enterprises Pty Ltd V Darby (2013) VSC 484
The passage of time
o Imitation (time) statues
o In Victoria – 15 years in relation to land

Questions of examination required in Adverse possession:
Commencement – when did adverse possession commence, what statuary time period applies?
Running of time – Has adverse possession been continuous and uninterrupted (Mulcahy v Curramore)
Lapse of time – has the statuary time period expired, is an extension of time available
Application – where the element are met what is the statutory process for the adverse possessor to apply for recognition of their possession through receipt of documentary title ?


Statutory recognition of adverse possession: depends on

Application – In all jurisdictions adverse possession can dispose a documentary title holder’s title to land

Time – The length of time required to establish adverse possession differs between jursdictions

Statutory tests – if documentary title holder has discontinued possession and another person has taken possession of the land against the interest of the documentary title holder
Factual possession requires physical possession amounting to exclusive possession.


Explain the * KY Enterprises Pty Ltd V Darby (2013) VSC 484 case

The case relates to a portion of land between two commercial premises – 8 and 10 Eames Avenue, Brooklyn

A portion of vacant land between the two shops is on the title of the plaintiff and balance is on title of the defendant
No fence had been erected along the boundary between these properties

A pair of steel gates had been placed on the boundary with Eames Avenue, each of the gates being affixed to one of the shops

The defendant caused the gates to be erected
The defendant claims that entry through the gates has been controlled by him

First occupied land in 1971
Since occupation he has controlled access to the disputed land through the gates
Land between shops used as access point to rear of shop

First purchased the land in 1987
Steel gates were erected when purchase occurred

Adverse Possession – Defendant’s claim
Has there been an interruption within the 15 year period? Defendant contends no interruption and no act by plaintiff to assert rights
Basis of argument:
Erection of gates
Access to the rear of property
Maintaining the land
Erecting the fence when necessary to exclude access

Against Adverse Possession – Plaintiff’s claim
No factual possession by the defendant (no control)
Use of property is mere use not adverse possession
Defendant has not proved necessary intention to possess - erection of gates was to discourage thieves not intention to possess

court held:
Defendant has shown his adverse possession of the disputed land

Plaintiff failed in his trespass claim