Lilienthal, G., & Ahmad, N. (2019).
Colonial land title in Australia: a meta-legal critical inquiry. Commonwealth Law Bulletin, 45(2), 231–256.
https://doi.org/10.1080/03050718.2019.1634610
Abstract
The objective of this research is to analyse critically the British colonial understanding of allodial title. Its significance is its substantive grounding in prior Yale, Harvard, and other highly authoritative research, however with entirely new syntheses. Noy stated the rule that any custom should not be construed so as to allow a person to do a wrongful act. Thus, importing a legal maxim such as the bases for English land title into a foreign country by force, as a wrongful act, could well have been a nullity. The research question is whether a colonial regime could ever lawfully seise the lands of prior undocumented owners, capriciously and without natural justice and procedural fairness, based on imported legal maxims. Argument tries to show that colonisers’ claims never exceeded the status of defective applications by way of colour of allodial title. The research will show that the entire English colonial system of land law was grounded in a system of foreign customary doctrines. Further, introducing a foreign custom to a new land would always fail for lack of the kind of prescription set out by Noy. Torrens title was an attempt to cure defects in customary title that had subsisted only in England since ancient Anglo-Saxon times. The real prospect of mal-administration of the register would make the objects of Torrens title difficult to achieve. In Australia, the crown had tried to introduce English custom in Australia as local law, but they did it by committing serious wrongs. This would nullify introduction of their legal maxims into Australia. Their claims to acquisition of allodial title to Australian lands would thus be sufficiently defective to reduce their holdings to mere colour of title. Their mala fides in their attempts at land acquisition would defeat any claim to convert their colour of title into a successful claim for adverse possession.
From the published notes:
7 Mabo and Others v Queensland (No 2 of 1992) 175 CLR 1 FC 92/014. High Court of Australia. The High Court of Australia, a British statutory court in Australia, held that the common law doctrine of terra nullius, by which the laws of England were imported to a foreign land, did not apply when there were prior inhabitants present. The logical consequence of this was that existing local customary laws survived, unless modified or excluded by acts of the foreign sovereign, or by later inconsistent laws. Prior existing laws included all indigenous land title. Thus, according to this decision, any indigenous land rights unextinguished by British Crown grants continued in the Continent of Australia. The High Court of Australia also held that the Australian land title system was based on socage.
10 Colour of title apparently has all the requirements of title. However, because of some patent defect, it will not convey lawful title. Wright v Mattison 18 Iow 56; Hall v Law 102 US 466; Walls v Smith 19 Ga 8; Veal v Robinson, 70 Id 809.
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https://doi.org/10.1080/03050718.2019.1634610
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