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HIGH COURT DECISION ON MABO - (III) THE ENGLISH LAW OF REAL PROPERTY
The English common law principles relating to real property developed
as the product of concepts shaped by the feudal system of medieval
times. The basic tenet was that, consequent upon the Norman
Conquest, the Crown was the owner of all land in the kingdom. A
subject could hold land only as a tenant, directly or indirectly,
of the Crown. By 1788, the combined effect of the
Statute Quia Emptores
1290 and the
Tenures Abolition Act
1660 had been largely to abolish the "pyramid of free tenants"
(166) which had emerged under the feudal system of tenure and to
confine the practical significance of the basic tenet that all land
was owned by the Crown to matters such as escheat and foreshore
rights. The "estate" which a subject held in land as tenant was
itself property which was the subject of "ownership" both in law
and in equity. The primary estate of a subject, the estate in fee
simple, became, for almost practical purposes, equivalent to full
ownership of the land itself. Nonetheless, the underlying thesis of
the English law of real property remained that the radical title to
(or ultimate ownership of) all land was in the Crown and that the
maximum interest which a subject could have in the land was
ownership not of the land itself but of an estate in fee in it.
The legal ownership of an estate in land was in the person or
persons in whom the legal title to it was vested. Under the rules
of equity , that legal estate could be held upon trust for some
other person or persons or for some purpose.
If the slate were clean, there would be something to be said for
the view that the English system of land law was not, in 1788,
appropriate for application to the circumstances of a British penal
colony (167). It has, however, long been accepted as incontrovertible
that the provisions of the common law which became applicable upon
the establishment by settlement of the Colony of New South Wales
included that general system of land law (168). It follows that,
upon the establishment of the Colony, the radical title to all land
vested in the Crown. Subject to some minor and presently irrelevant
matters, the practical effect of the vesting of radical title in
the Crown was merely to enable the English system of private
ownership of estates held of the Crown to be observed in the
Colony. In particular, the mere fact that the radical title to all
the lands of the Colony was vested in the British Crown did not
preclude the preservation and protection, by the domestic law of the
new Colony, of any traditional native interests in land which had
existed under native law or custom at the time the Colony was
established. Whether, and to what extent, such pre-existing native
claims to land survived annexation and were translated into or
recognised as estates, rights or other interests must be determined
by reference to that domestic law.
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