Possessory Title in the Context of Aboriginal Claimants

Abstract

To the present day, no court in Australia has decided a case of possessory title being claimed by Aboriginal claimants. In the landmark case of Mabo v Queensland1, which awarded a group of indigenous people land rights to a small group of islands based on "native title", the only judge to even consider the issue of possessory title was Justice Toohey. However, as the following discussion will show, this lack of judicial consideration does not mean that possessory title may not be a useful and perhaps even favourable course of action for a group of Aboriginal claimants to follow. Possessory title is an old Common Law doctrine which states that the possession of land gives rights to a title which is good against the rest of the world except for a person with a better claim. The occupier of the land is feudally possessed or seised of the land and acquires a fee simple title. The common law presumes this interest in the land, and it will be effective against the world until it is rebutted by someone contending that they have better title. In light of this definition it can be seen that possessory title is based on two main elements. Firstly, the claimant must show that they have possession of the land in question. Secondly, there must not be a party present who can prove they have an existing and better title to the land.