Crown Land Continued
In an 1845 decision of the Supreme Court of New South Wales, Chief Justice Stephen was in no doubt that the Crown owned all the lands in the colony, under the feudal system of tenure. While the doctrine was accepted to be something of a legal fiction in England itself, it was different in a settled colony such as New South Wales because 'there is no other proprietor of such lands.' [Attorney-General (NSW) v Brown (1847) 1 Legge 312].
This judgment was supported by Justice Windeyer in the High Court of Australia in 1959: '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.' He pointed out that the principles of English real property law were introduced into the colony from the beginning. [Randwick Corporation v Rutledge (1959) 102 CLR 54 at 71].
The same proposition was regarded as 'not in doubt' by Justice Stephen in the High Court in 1975. [New South Wales v The Commonwealth (1975) 135 CLR 337 at 438].
These various precedents were followed by the Supreme Court of the Northern Territory in the first court case brought by Indigenous Australians arguing for recognition and protection of their land rights: The Gove Land Rights Case decided in 1971.
This judgment was supported by Justice Windeyer in the High Court of Australia in 1959: '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.' He pointed out that the principles of English real property law were introduced into the colony from the beginning. [Randwick Corporation v Rutledge (1959) 102 CLR 54 at 71].
The same proposition was regarded as 'not in doubt' by Justice Stephen in the High Court in 1975. [New South Wales v The Commonwealth (1975) 135 CLR 337 at 438].
These various precedents were followed by the Supreme Court of the Northern Territory in the first court case brought by Indigenous Australians arguing for recognition and protection of their land rights: The Gove Land Rights Case decided in 1971.
Keywords: Attorney-General (NSW) v Brown, 1847 , Australian Court Case, Blackburn, Justice, colonialism, crown land, doctrine of tenure, Gove Case, land ownership, Milirrpum v Nabalco Pty Ltd, 1971 , Northern Territory, NSW v The Commonwealth, 1975, property law, Randwick Corporation v Rutledge, 1959 , Supreme Court of NSW, Supreme Court of the Northern Territory, 1845-1975
Author: Nettheim, Garth