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Topic 2 Doctrine of Tenure

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
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.
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Statute of Qiua Emptores 1290

The statute meant that land was freely alienable and abolished subinfeudation.
Tenures Abolition Act 1660
The Act had the effect that most tenures were converted into free and common socage.
Property Law Act 1974 (Qld)
The Act repealed the English statutes and replaced them with ss 20-21.

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.

The Adoption of Tenure in Australia

Under the International Law of the XVIII century, land could be acquired by one of three
means: settlement, conquest, or treaty (cession). Historically, Australia was regarded as a
settled territory Cooper v Stewart (1889). Thus, the British law was imported to Australia.
Prior to Mabo, the Crown was regarded as the absolute and beneficial owner of all the land:
Attorney-General v Brown (1847); Milirrpum v Nabalco (1971).
The Mabo Cases
The plaintiffs sought a declaration that the lands and waters around Mer (the Murray
Islands) were held under traditional native title which had not been extinguished by
Queenslands annexation in 1879.
Mabo (No 1) (1988)
The Court decided in favour of Plaintiffs. The issue was the validity of the Queensland
Coastal Islands Declaratory Act 1985, which was enacted to remove any doubt about the

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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:

Australia was not terra nullius.

Native title survived the acquisition of sovereignty by the British.

Acquisition of sovereignty did not mean full Crown ownership of land; it only meant
acquisition of Australia as a country.

There is no absolute Crown ownership of all land in Australia.

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.

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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).

Wik v Queensland (1996)

The issue before the Court was whether pastoral leases extinguished native title. It was held
that native title was not necessarily extinguished by pastoral leases.
The majority considered the nature of Crown leases under the Land Act 1994 (Qld). Crown
leases did not grant exclusive possession and were not leases in the common law sense.
Crown leases were statutory grants.
The Court found that there was nothing in the language of the Land Act that required the
Crown to have full and beneficial ownership of the land.
Brennan CJ: If a lease be granted, the lessee acquires possession and the Crown
acquires the reversion expectant on the explry of the term. The Crown's title is
thus expanded from a mere radical title and, on the expiry of the term becomes a
plenum dominium.

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