Exam Cheat Sheet Native Title - Native Title Act 1993 (Cth) The Mabo Decision: Rejected terra nulius. Under Mabo, indigenous people's unique rights to Australian land was recognised. Essential Elements of Native Title in Australia - section 223 Under section 223 if the elements are satisfied a native title claim will be successful. 1. Traditional Laws and Customs Recognised Native title rights and interests must be possessed under traditional laws acknowledged and customs observed by Aboriginal peoples or Torres Strait Islanders. Essentially what are the customs and traditional laws, do they exist. 2. Connection to Land and Waters Aboriginal peoples or Torres Strait Islanders must have a connection with the land or waters by these laws and customs - Physical or spiritual connection. 3. Recognition by Common Law The rights and interest claimed by the indigenous group must be recognised by the common law. Some examples include: hunting, fishing, gathering etc Skipped over Torrens System and Co-Ownership - Indefeasibility - Land Title Act 1994 (Qld) Indefeasible title is not subject to being lost overturned or annulled. Remember that this is a harsh doctrine in which registration means everything. 184 Quality of registered interests (1) A registered proprietor of an interest in a lot holds the interest subject to registered interests affecting the lot but free from all other interests. (2) In particular, the registered proprietor- (a) is not affected by actual or constructive notice of an unregistered interest affecting the lot; and (b) is liable to a proceeding for possession of the lot or an interest in the lot only if the proceeding is brought by the registered proprietor of an interest affecting the lot. (3) However, subsections (1) and (2) do not apply- (a) to an interest mentioned in section 185; or (b) if there has been fraud by the registered proprietor, whether or not there has been fraud by a person from or through whom the registered proprietor has derived the registered interest. Exceptions to Indefeasibility If an exception to indefeasibility applies, the indefeasible title will be found defeasible. Fraud - s 184(3)(b) There are 4 questions to ask ... What is fraud? Fraud by whom? Fraud against whom? Fraud when?
Exam Cheat Sheet What? - Fraud is 'personal dishonesty or moral turpitude' (Butler v Fairclough (1917) 23 CLR 78). - 'If the designed object of a transfer be to cheat a man of a known existing right, that is fraudulent'- Waimiha Sawmilling Company Limited v Waione Timber Company Limited [1926] AC 101, 106. By Whom? - Owner? - Tenant? - Mortgagee? . Section 184 Against Whom? - Current or previous holder? - Person with unregistered interest? When? In the process of obtaining the interest? - Waimiha Sawmilling Company Limited v Waione Timber Company Limited; Loke Yew v Port Swettenham Rubber Co Ltd Courts Powers if Fraud s187(2tt(btt - the registrar may correct the register. s188 - compensation In personam - ss 184(3)(a); 185(1)(a) In personam is a personal claim. -- Frazer v Walker [1967] 1 AC 569,