Monday, December 14, 2009

The Superiority of private Land Ownership Rights

Under English law, the recognition of ownership must always include the ability to inherit. That recognition being accepted by English law as fee simple ownership.

Civil law can recognise Fee Simple BUT it is enshrined in an extremely tight constitution where it can not be interfered with.

The problem that our Australian Federal & State legislatures have is that statute law can not guarantee rights because the statute can changed or even repealed. In civil law countries (France, Germany etc) these rights are enshrined in their very tight constitutions. In common law countries these rights are enshrined in the common law itself although it must be said that civil law countries have elements of common law as well, and vice versa. However, in Australia they are progressively extinguishing the common law and replacing it with civil law without any enshrined constitutional mechanism that protect the rights lost by the removal of the common law. Single or multiple statutes can not accommodate those rights because they can be removed or altered at the whim of the parliament or "Polite Bureau".

With regards to land ownership those rights are tied up in an "Inheritable Estate" which in this country can only be Fee Simple. Lease hold titles are not inheritable because they are titles by virtue of a "Statute" and that statute can be altered or repealed therefore there is no security of inheritance.

Therefore if the legislature removes the "Inheritance" or can not guarantee the inheritance of a "title of inheritance" that once existed, but by virtue of a statute has been removed and IN DOING SO also imposes a penalty (for destroying ones inheritance and therefore private property) therein lies an "ABSOLUTE TAKING". The "Penalty" and criminal prosecution means that you have destroyed "Their Property" NOT YOURS therefore the inheritance has transferred to the Government and the "Public".

MABO and ANOTHER v. THE STATE OF QUEENSLAND and ANOTHER [1988] HCA 69; (1989) 166 CLR 186 F.C. 88/062 (8 December 1988)


23. The question therefore arises whether the practical effect of the Act would, upon the assumption made for the purposes of the demurrer, be to produce a situation where the Torres Strait Islanders or the Miriam people(being "persons of a particular race, colour or national or ethnic origin") "do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than" such other persons within the meaning of those words as used in s.10 of the Commonwealth Act. In the light of what has been said above, the answer to that question must, in my view, be in the affirmative.

The practical operation and effect of the Act, even on the correct and more confined construction of s.3, are to single out the Torres Strait Islanders (including the Miriam people) for discriminatory treatment in relation to traditional proprietary rights and interests to and in their homelands. The confiscation or extinction of such rights and interests without any compensation or any procedure for ascertaining or assessing the existence and extent of the claims of particular individuals is a denial of the entitlements to ownership and inheritance of property, including the implicit immunity from arbitrary dispossession, which are "rights" for the purposes of s.10(1) of the Commonwealth Act.

That denial of rights is confined to the Torres Strait Islanders. It does not extend to persons of "another race, colour or national or ethnic origin". Its effect is that the Torres Strait Islanders, including the Miriam people, are denied ("do not enjoy") "rights", including the entitlement to immunity from being arbitrarily dispossessed, which are enjoyed by those other persons. That being so, that denial attracts the protective provisions of s.10(1) of the Commonwealth Act. In the context of the provisions of s.10(3), it would be anomolous if it were otherwise.

Mabo (2)

Deane and Gaudron:

69. The detailed findings of Moynihan J. of the Supreme Court of Queensland in relation to the issues of fact remitted to that court unavoidably contain areas of uncertainty and elements of speculation. Nonetheless, they provide, for present purposes, a sound basis for some generalizations in relation to native entitlements to the occupation and use of land within the Murray Islands under local law or custom at the time of their annexation to Queensland. It suffices, for the purposes of this judgment, to say that the Meriam people lived in an organized community which recognized individual and family rights of possession, occupation and exploitation of identified areas of land.

The entitlement to occupation and use of land differed from what has come to be recognized as the ordinary position in settled British Colonies in that, under the traditional law or custom of the Murray Islanders, there was a consistent focus upon the entitlement of the individual or family as distinct from the community as a whole or some larger section of it. It would seem that, with the exception of the area used by the London Missionary Society, those individual or familial entitlements under traditional law or custom extended to all the land of the Islands. It is true, as the learned Solicitor-General for Queensland submitted, that it is impossible to identify any precise system of title, any precise rules of inheritance or any precise methods of alienation. Nonetheless, there was undoubtedly a local native system under which the established familial or individual rights of occupation and use were of a kind which far exceed the minimum requirements necessary to found a presumptive common law native title. In circumstances where the strong assumption of the common law was unaffected by the act of State annexing the Islands, the effect of the annexation was that the traditional entitlements of the Meriam people were preserved. The radical title to all the lands of the Islands vested in the Crown.

The Crown's proprietary estate in the land was, however, reduced, qualified or burdened by the common law native title of the Islanders which was thereafter recognized and protected by the law of ueensland. It is unnecessary to determine whether the lands of the Islands became, upon annexation, Crown lands for the purposes of the Crown Lands Alienation Act. If they did, the common law native title of the Islanders was not extinguished but remained a burden on the underlying title of the Crown, and any provisions of that Act which would have the effect of modifying the common law native title or restricting the rights of use and occupation of the Islanders were, to that extent, inapplicable.

Newcrest Mining (WA) Limited v The Commonwealth of Australia [1997] [HCA]

One highly influential international statement on the understanding of universal and fundamental rights is the Universal Declaration of Human Rights. That document is not a treaty to which Australia is a party. Indeed it is not a treaty at all. It is not part of Australia's domestic law, still less of its Constitution[479]. Nevertheless, it may in this country, as it has in other countries, influence legal development and constitutional interpretation[480]. At least it may do so where its terms do not conflict with, but are consistent with, a provision of the Constitution[481].

The use of international law in such a way has been specifically sanctioned by the Privy Council when giving meaning to express constitutional provisions relating to "fundamental rights and freedoms"[482]. Such jurisprudence has its analogies in the courts of several other countries[483]. The growing influence of the Universal Declaration upon the jurisprudence in the International Court of Justice may also be noted[484].

The Universal Declaration states in Article 17:

"1. Everyone has the right to own property alone as well as in association with others.

2. No one shall be arbitrarily deprived of his property."

Whilst this article contains propositions which are unremarkable to those familiar with the Australian legal system, the prohibition on the arbitrary deprivation of property expresses an essential idea which is both basic and virtually uniform in civilized legal systems. Historically, its roots may be traced as far back as the Magna Carta 1215, Art 52 of which provided:

"To any man whom we have deprived or dispossed of lands, castles, liberties or rights, without the lawful judgment of his equals, we will at once restore these".

A more specific documentary embodiment of the notion may be found in Article 17 of the French Declaration of the Rights of Man and of the Citizen, 1789[485]:

"Property, being an inviolable and sacred right, none can be deprived of it, except when public necessity, legally ascertained, evidently requires it, and on condition of a just and prior indemnity".

Like protections against arbitrary and uncompensated deprivation of property may be found in the constitutions of most civilized countries. In the Fifth Amendment to the United States Constitution it is provided that[486]:

"No person shall be ... deprived of ... property, without due process of law; nor shall private property be taken for public use, without just compensation."

The original provision to this effect in the Indian Constitution[487] has been amended several times [488]. The provision required that no person should be deprived of that person's property save by authority of law and such law had to provide for compensation for the property so acquired or requisitioned[489]. The Supreme Court of India, while that test stood, insisted that provisions for compensation were a necessary condition for the making of a valid law providing for the acquisition or requisition of property by the state [490]. In other countries of the region property rights are constitutionally protected by the same two requirements. Thus, Malaysia's Constitution provides that there shall be no deprivation of property save in accordance with law and no valid law for compulsory acquisition or use of property without adequate compensation[491]. Similarly the Japanese Consititution provides[492] that "[p]rivate [p]roperty may be taken for public use upon just compensation". In South Africa, where the issue was much debated in the context of the rights of the dispossessed majority, the 1996 Bill of Rights provides that "[n]o-one may be deprived of property except in terms of a law of general application, and no law may permit arbitrary deprivation of property"[493].

In effect, the foregoing constitutional provisions do no more than reflect universal and fundamental rights by now recognised by customary international law. Ordinarily, in a civilised society, where private property rights are protected by law, the government, its agencies or those acting under authority of law may not deprive a person of such rights without a legal process which includes provision for just compensation. Whilst companies such as the appellants may not, as such, be entitled to the benefit of every fundamental human right[494], s 51(xxxi) of the Australian Constitution must be understood as it commonly applies to individuals entitled to the protection of basic rights. It must be given a meaning and operation which fully reflects that application. In this way, in Australian law, it extends to protect the basic rights of corporations as well as individuals.

When the foregoing principles, of virtually universal application, are remembered, it becomes even more astonishing to suggest that the Australian Constitution, which in 1901 expressly and exceptionally recognised and gave effect to the applicable universal principle, should be construed today in such a way as to limit the operation of that express requirement in respect of some laws made by its Federal Parliament but not others. Where there is an ambiguity in the meaning of the Constitution, as there is here, it should be resolved in favour of upholding such fundamental and universal rights[495]. The Australian Constitution should not be interpreted so as to condone an unnecessary withdrawal of the protection of such rights. At least it should not be so interpreted unless the text is intractable and the deprivation of such rights is completely clear. Neither of these conditions applies here. Nor should arbitrary deprivation of property be lightly attributed to a constitution, such as the Australian Constitution, given the history of its origins and its purpose. That purpose is to be the basic law for the government of a free people in a nation which relates to the rest of the world in a context in which the growing influence of international law is of ever increasing importance.

The authority of Teori Tau apart, a correct understanding of the Constitution does not oblige a construction condoning a law made by the Federal Parliament for a territory providing for the acquisition of property otherwise than on just terms. The obstacle which Teori Tau presents to the adoption of the correct constitutional principle should be overcome. This may the more readily be done because that decision effectively breaks a promise given on behalf of the Commonwealth at federation adopting a safeguard, restriction or qualification on its lawmaking powers relevant to the fundamental rights of all persons from whom property is compulsorily acquired under federal law. That promise extends to the territories and to laws for the government of the territories. This Court should ensure that the promise is kept. The decision in Teori Tau should be overruled. Section 51 (xxxi) applies to a law made by the Federal Parliament under s 122. It therefore applies to the Conservation Act. It follows that the orders and declarations proposed by Gummow J should be made.


  1. Scociety would do well to focus upon the right of garunteed land accesess as oppossed to so called absolute private property rights.Just as each individual has a natural right to acsess oxegyn from the atmosphere , sunlight and warmth from the sun,''without claiming private ownership of neither''each person should be entiltled to living space and the minimal amount of land needed to grow food in suffecient amounts to feed a family.Accsess, not ownership is a fair and logical right.The concept of a privately owned planet is an inherintly foolish concept.

  2. This is a fair comment from James, however, the ethics are not the point of this post, but the legalities.

    If the lawfulness of land ownership is questioned by the People as a whole, and decided to be negated by the People as a whole, then James comments must be addressed.