Implications of the Crown's Radical Title for Statutory Regimes Regulating the Alienation of Land: 'Crown Land' v 'Property of the Crown' Post-Mabo
journal contributionposted on 29.10.2019 by Lilla Secher
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It is clear from the High Court's decisions in Wik and Ward that, for the purpose of the statutory regimes regulating the alienation of land in Australia, 'Crown land' means land in respect of which the Crown has 'radical title'. Although the concept of radical title had emerged in Mabo, it was not unequivocally clear whether it denoted a bare legal title sufficient to support the Crown's right to acquire and confer title or a full beneficial interest except to the extent of native title. This article argues that, because both legal authority and principle support the former interpretation of radical title in the context of general schemes of land regulation, the pre-Mabo view that statutory definitions of 'Crown land' refer to land which is the 'property' of the Crown no longer reflects the law in Australia. It will be seen that this conclusion is consistent with the High Court's treatment of residuary rights to, and resumptions of, Crown land in Wik and Ward respectively, as well as the policy and purpose of the legislation relating to Crown land and the postMabo High Court's analysis of it generally and, in particular, the statutory trespass provisions. It is also consistent with the constitutional settlement of the mid-I9th century, by which the Crown's prerogatives to grant interests in land and to appropriate land to itself were displaced by statutory powers: although this effected a transfer of political power and not title, the statutory definition of 'Crown land', like the common law definition of 'waste lands', presupposed, rather than conferred, the Crown's title to unalienated land. Further support for the proposition that, irrespective of the presence of native title, the Crown must exercise its sovereign power before its radical title converts to full beneficial ownership, before 'Crown land' becomes 'Crown property', is provided by the Crown's power of eminent domain: a power which compliments the Crown's radical title and shares the same underlying rationale.