Colonial Land Title in Australia — In Recognition of Uncle Shane Mortimer, Ngambri Elder

Published in the Commonwealth Law Bulletin in 2019, "Colonial Land Title in Australia: A Meta-Legal Critical Inquiry" by Gary Lilienthal and Nehaluddin Ahmad critically examines the legal foundations upon which British colonial land claims in Australia were established. The authors focus particularly on allodial title, colonial land acquisition, English land law, colour of title, adverse possession, Torrens title and Aboriginal land rights. CENTRAL ARGUMENT The article asks whether a colonial regime could lawfully seize land belonging to prior undocumented owners by imposing foreign legal customs and maxims without natural justice or procedural fairness. The authors argue that the British colonial system attempted to introduce English customary land doctrines into Australia and contend that, because of defects in the manner in which land was acquired, colonial claims may amount to "colour of title" rather than valid allodial title. Colour of title is described in the article as an apparent or defective title: something that has the appearance of title but, because of a legal defect, does not convey lawful title. ALLODIAL TITLE The article examines the historical meaning of allodial title through Anglo-Saxon, English and American property law. It discusses allodium as land ownership traditionally understood as being held independently of a superior landlord, while also recognising that the precise legal meaning of allodial ownership has varied between legal systems and historical periods. The authors then consider whether colonial governments themselves ever successfully obtained allodial title to lands that were already occupied by Indigenous peoples. ABORIGINAL LAND AND MABO The article discusses the significance of Mabo v Queensland (No 2) and states that the doctrine of terra nullius did not apply where prior inhabitants were present. It further discusses the proposition that pre-existing Indigenous laws and land rights could survive unless they were subsequently extinguished or modified according to law. MORTIMER v AUSWIDE SERVICES An important Australian case discussed by the authors is Mortimer v Auswide Services Ltd T/as Caloola Farm (In Liquidation) [2016] ACTSC 282. The article states that Acting Chief Justice Refshauge granted an interlocutory injunction preventing the transfer of Torrens-title land in the Australian Capital Territory in proceedings involving Mortimer's Aboriginal claim to prior allodial title. This case forms part of the article's broader investigation into the relationship between Aboriginal claims to prior land title and Australia's subsequent registered land-title system. TORRENS TITLE The article also critically examines the Torrens title system. The authors discuss historical examples showing that registration does not necessarily mean that every underlying defect is impossible to challenge. They examine issues including defective registration, notice, fraud, procedural fairness and the relationship between registration and underlying title. WHY THIS RESEARCH IS IMPORTANT The article raises a fundamental legal and historical question: What happens to colonial land title if the party claiming the land never possessed valid underlying title capable of being transferred in the first place? Rather than treating present Australian property law as the end of the inquiry, the authors conduct what they describe as a "meta-legal critical inquiry" into the historical foundations of colonial title. They compare Australian developments with English, American and other colonial land-law systems. Their central thesis is that British colonial claims to Australian land were legally defective and therefore could arguably constitute colour of title rather than valid allodial title. IMPORTANT CONTEXT This publication is an academic legal argument, not itself a judgment, legislation or declaration that Aboriginal peoples automatically hold legally enforceable allodial title under current Australian law. Its importance lies in the legal and historical arguments it develops concerning the foundations of colonial land title, Aboriginal prior land interests, allodial title, colour of title and the Torrens system. ——— IN RECOGNITION OF UNCLE SHANE MORTIMER — ELDER OF THE NGAMBRI NATION The Republic of the United Sovereign Nations Confederation records its enduring respect and thanks to Uncle Shane Mortimer, Elder of the Ngambri Nation, whose Country holds the lands now known as the Australian Capital Territory and surrounding regions. Uncle Shane has stood, and continues to stand, for the truth of prior and continuing Original title to the lands of the Ngambri people. He has spoken publicly for his Nation, for its Country, for its ancestors and for its future generations at a time when such standing has demanded courage, patience and personal cost. In Mortimer v Auswide Services Ltd T/as Caloola Farm (In Liquidation) [2016] ACTSC 282 — the case cited above — an interlocutory injunction was granted preventing the transfer of Torrens-title land in the Australian Capital Territory in proceedings involving Uncle Shane's claim to prior allodial title on behalf of the Ngambri people. That case stands as evidence that Original claims are not extinguished by the mere passage of time or by the imposition of foreign legal systems. The Council thanks Uncle Shane Mortimer for the strength of his voice, for the tenderness with which he has held Country, and for the example he has set for every Nation participating in this Confederation. May the fire he has helped to keep alight burn on for the generations yet to come. ISSUED IN RECOGNITION Republic of the United Sovereign Nations Confederation All Rights Reserved · Republic National Registry · ICIP Protected