This is an extract of our Recognition Of New Forms Of Proprietary Interest document, which we sell as part of our Property A Notes collection written by the top tier of Monash University students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Property A Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Recognition of new forms of proprietary interest Could be argued Blackburn J in Milirrpum demonstrated the pitfalls of looking for familiar incidents of property rather than asking whether the concept of PY was wide enough to protect the plaintiff's use and enjoyment of the tribal lands. HCA in Mabo established a concept of NT - by rejecting reliance on conventional CL features used to identify property. Courts reluctant to recognise - about once a century get new prop interest. Reason for caution - since the rights can be enforced against the world, we need to limit the categories of proprietary interest we will recognise or chaos/confusion will result. (Edgeworth: the Numerous Clauses Principle. Factors taken into account in recognising new prop interests:Subject of propertyObject of propertyRights and entitlements that will attach to the object for the benefit of the subject
Tulk v Moxhay: restrictive covenants See case note. Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937): property in a spectacle rejected See case note.The interference with profit of business is not a property rightThe interference was not with land but with profitJust because you put money into a spectacle does not make it a property right
However, dissenting judgments indicated it may be a property right at some point. ABC v Lenah Game Meats (2002) See case note. Native title Milirrpum v Nabalco The existence of Native Title as a form of property right was declined by the judge due to it failing to meet the requirements (right to alienate, right to exclude). Mabo v Queensland (No 2) (1992)
- Inalienability no reason to deny ownership of landNT can expire if people have lost their connection to the landIts content depends on traditional laws and customs.Inalienable to nonindigenous people who do not observe the laws and customs; alienable to others only if allowable under traditional law/customs.
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