...Title and Ownership Distinguished...
However, although the plaintiffs accepted that the Crown held the radical title to land, they strongly challenged the established position that when the English Crown acquired sovereignty it immediately took absolute and complete ownership of all the land within the Colony. According to this doctrine, nobody held any rights in the land unless granted such rights by the Crown:
'Perhaps the clearest statement of these propositions is to be found in Attorney-General v Brown  when the Supreme Court of New South Wales rejected a challenge to the Crown's title to and possession of the land in the Colony. Stephen C.J. stated the law to be "that the waste lands of this colony are, and ever have been, from the time of its first settlement in 1788, in the Crown - there is no other proprietor of such lands."'
This judgment has formidable support. It was described as 'notable' by Windeyer J. [in Wade v NSW Rutile Mining Co. Pty Ltd. (1969)] who followed its doctrine in Randwick Corporation v Rutledge : 'On the first settlement of New South Wales (then comprising the whole of eastern Australia), all the land in the colony became in law vested in the Crown -'
The doctrine of exclusive Crown ownership of all land in the Australian colonies was again affirmed by Stephen J. in New South Wales v The Commonwealth [1975, High Court of Australia]: 'That originally the waste lands in the colonies were owned by the British Crown is not in doubt.-:' Justice Brennan in Mabo No 2: (1992) CLR 1 at 26-28.
The plaintiffs challenged this view, arguing that the acquisition of sovereignty (that is the right to govern the territory and to grant interests in the land) did not automatically confer ownership of all the land on the Crown. To convince the High Court to adopt this view was the plaintiffs' second main challenge.
Keywords: Attorney-General (NSW) v Brown, 1847 , Australian Court Case, Brennan, Chief Justice Gerard, Common Law, Mabo v Queensland No.2, native title, New South Wales, NSW v The Commonwealth, 1975, ownership, Radical Title, Randwick Corporation v Rutledge, 1959 , sovereignty, 1847-1992
Author: Kenna, Jonathan