#7145 - Characteristics Of Property (Second Order Theory) - Property A

Ownership (the ultimate right other than Crown rights) of an object generally includes the right:

• To use: can use in any way you want. However this is not unrestricted. On land – you can prevent people coming on racist/sexist conditions. Can’t cause a nuisance.

• To exclude others from the thing: there are restrictions on this eg can’t exclude certain state organisations (eg police) in certain cases

• To alienate: ie to dispose of one’s interest in the thing eg selling, gifting. Not a feature of all property rights – eg Native Title cannot be alienated other than to the Crown.

Note overlap with Posner’s theories here.

These are characteristic and all may not always be present

Case regarding the legal meaning of property.

Concerned the Gove Peninsula. Yolgnu claimed mining lease interfered with their Native Title which had existed from time immemorial. Their claim was rejected by Blackburn J (NTSC).

Note: Cf 2+3 (justfications for PY – labour theory and self-realisation) – many first Australians believe they belong to the land rather than that the land belongs to them: T&D 1.3

Blackburn denied the claim because although Y showed they had a system of law, the usage of the land did not fall within the CL system of interests which we ascribe as private property. He went through the three criteria: ticked on criteria 1 (to use) but failed to have rights under criteria 2 (exclude others) and 3 (alienate the land). As a result the proprietary interest was not recognised.

(1.8) Note that Blackburn J emphasised that not all 3 of the characteristics mentioned have to be present in every case for a property right to exist.

(3.88) Held that there was a right to exclude only from sites of ritual/sacred sites.

As a single judge of NTSC: the courts rarely recognise new proprietary interests. This would be for the ultimate appellate court (HCA) to recognise.

Sought declaration lands rights survived acquisition of sovereignty. HCA said CL recognised the rights of indigenous people to their land.

• Native title recognised.

• Terra nullius rejected.

• Native title need not include a right of exclusive possession.

• NT inalienable except to the Crown.

Could be extinguished by crown but was recognised by CL. Court at pains to stress the rights inalienable. ‘Although NT exists, it exists by the laws of the clan. Not a creature of the CL, although recognised by the CL.’ This is different to rights such as leasehold interests.

Notes: Crown acquired radical title - gives the Crown ownership of land only if there are no other owners at the time of acquisition of sovereignty

Native title, though recognised by the common law is not an institution of the common law and it is not alienable by the common law. Its alienability depends on the laws from which it is derived. If alienation of a right or interest in land is a mere matter of the custom observed by the indigenous inhabitants, not provided for by law enforced from a sovereign power, there is no machinery which can enforce the rights of the alienee.

Aus law can protect interest of clan or group, communally or individually, only in conformity with traditional laws and customs of people...A right or interest possessed as a NT cannot be acquired from an indig ppl by one who, not being members of that people, does not acknowledge their laws and customs; nor can right or interest be acquired by a clan unless acquisition consistent with the laws and customs of that people.

This is a compromised position as compared to full Land Rights that many Aboriginal activists wanted...