SHARING THE PRINCIPLES: FOUNDING THE AUSTRALIAN CADASTRAL SYSTEMS ON ROBUST LEGISLATIVE FRAMEWORK

SHARING THE PRINCIPLES: FOUNDING THE AUSTRALIAN CADASTRALSYSTEMS ON ROBUST LEGISLATIVE FRAMEWORK

MELKAMU B MOGES*

This paper has been written with two main purposes in mind. Firstly, it provides an

argument that a cadastral system, to be successful and sustainable, should be

established under a legislative framework which accounts for at least four

conditions: good governance and political culture, efficient enforcement institutions,

recognition of ‘all’ property interests and rights, and adherence to a few other basic

principles of land registration. Secondly, it highlights some issues in the Australian

cadastral system vis-a-vis these essential conditions or requirements of a

sustainable cadastral system. To this end, the paper is divided into five parts. The

first part provides for the meaning of cadastral system as well as the general

features and functions of the Australian cadastral system. The second part analyses

the essential requirements cadastral system legislation needs to consider. The third

part assesses or evaluates the Australian cadastral system in relation to some of the

main principles and conditions which are described in part II and highlights some

shortcomings. The fourth part analyses the implications and consequences of the

shortcomings. The paper ends with conclusion.

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*LLB(AAU),MSc(KTH),PhD Candidate (Melb). I thank the anonymous

reviewers who provided very useful comments on the earlier

drafts of the paper. I also thank my supervisors Associate

Professor Maureen Tehan and Associate Professor Matthew

Harding, both at the Melbourne Law School, for providing me

useful comments on the earlier draft of this article

I Introduction...............................................2A Meaning of Cadastral System...........................2B The Australian Cadastral System and a Note on Methodology 3II Essential Requirements of Cadastral System Legislation....7A Governance and Politics...............................9B Institutional Capacity...............................10

1 Enforceability of Cadastral System Law.................112 Government Bound by Law................................123 Equality before Cadastral System Law...................13

C Recognizing all Rights Including Customary Tenure....14D Other Principles.....................................16

1 Principles from Cadastral System Modelling.............172 Principles from Legal Theory...........................19

III The Australian Cadastral System Evaluated...............22A Introductory.........................................23B Governance and Institutions..........................25

1 Strong Qualities.......................................25a the process of Registration...........................25b Quality Assurance Mechanisms..........................27

2 Shortcomings...........................................32B Rights Recognised and Limitations....................32IV Implications of Shortcomings of the Australian Cadastral System......................................................37V Conclusion................................................40

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I Introduction

A Meaning of Cadastral SystemThe term ‘cadastral system’ is used in this paper with

purpose. The term covers two related, but not necessarily

identical, practices. They are globally known as cadastre and

land registration or land titling. The former is defined as:a parcel based, and up-to-date land information system containing

record of interests in land (e.g. rights, restrictions and

responsibilities). It usually includes a geometric description of

land parcels linked to other records describing the nature of the

interests, the ownership or control of those interests, and often

the value of the parcel and its improvements.1

Land registration or land titling is defined as ‘a system of

recording in a public office from time to time transactions

with land, or the mere fact of ownership of some interest in

land.’2 A system under which merely the instruments of

transactions in land are recorded is known as deeds

registration whereas a system under which the title to land or

interest is recorded is called title registration3 or more

accurately title by registration.4

1FIG Statement on the Cadastre 1995 (The International Federation ofSurveyors (FIG)), FIG Publication No11.2James Edward Hogg, Registration of Title to Land throughout the Empire: A Treatise onthe Law Relating to Warranty of Title to Land by Registration and Transactions withRegistered Land in Australia, New Zealand, Canada, England, West Indies, Malaya, &c. ASequel to the "Australian Torrens System"(The Law Book Co of Australasia,1920),2. See also Douglas Whalan, The Torrens System in Australia (The LawBook Company Limited, 1982),13. 3Ibid.4Malcolm Park, The Effect of Adverse Possession on Part of a Registered Title Land Parcel(PhD Thesis, University of Melbourne, 2003),103.‘Strictly speaking,it is a person’s title to an estate which is registered rather than

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Each of these definitions is important as it indicates the

separate treatment of cadastres and land registration which

has generally been the norm since the original development of

the systems. That is to say the activities have been carried

out by disparate public agencies in various countries

including Australia. However, one activity cannot be seen

separately from the other activity as both should exist

together for a complete functioning of cadastral systems. This

is the reason why this author has preferred to use the more

generic term ‘cadastral system’ instead of the specific terms

‘cadastre’ or ‘land register’ unless specific reference to the

latter is required.

B The Australian Cadastral System and a Note on MethodologyIn Australia, the land registration system has been generally

governed by two systems namely, the general Law registration

system and the Torrens land registration system.5 However, the

Torrens system (title registration of Australia) has been much

favoured since it was first introduced into South Australia in

1858 and then into all the other states by 1875.6 Today almost

all land is registered in Australia remnants of the deeds

the person; however, it has become customary to speak of registeringthe proprietor. Ruoff, T B F and R B Roper The Law and Practice ofRegistered Conveyancing (London, Stevens, 5th ed, 1986) cited in Malcolmat 90.5See, eg,G L Teh and B M Dwyer, Introduction to Property Law (Butterworths,2nd ed, 1992),74. 6The Torrens System is also fundamental for the Australian realproperty law. See Adrian Bradbrook et al, Australian Real Property Law(Thomson Reuters, 5th ed, 2011), 3.

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system remaining only in four states, namely New South Wales,

Victoria, Tasmania and Western Australia.7

In Australia, the hallmark of the cadastral system law is

maximising the efficiency of the land market. As Williamson observed:

[T]he free land market in Australia is fundamental to economic

development and the creation of wealth, and supports environmental

management, sustainable development and a relatively high

standard of living. The Australian cadastral system in turn is

essential infrastructure in support of this land market.8

The Torrens statutes incorporate and govern this useful

economic activity ‘based on the concept that land is a

commodity which can be bought and sold – and, from a legal

perspective, the land rights can be transferred from one

person to another.’9 Accordingly, transfer rights are the most

important rights of estate holders as they embody the

fundamental freedom of peoples to property (freedom of

commerce).10 According to the Transfer of Land Act 1958 (Vic), ‘a

7Douglas Whalan, The Torrens System in Australia (The Law Book CompanyLimited, 1982),50; Bradbrook et al, above n 6,449. 8Ian Williamson, 'the Australian Cadastral System' (Paper presentedat Cadastral Reform Seminar, Seoul, Korea, July, 1994),4. For abroader discussion of the meaning and evolution of land market inAustralia see generally Park, above n 4,30-39. 9See P V D Molen, 'The Future Cadastres – Cadastres After 2014'(Paper presented at FIG Working Week 2003, Paris, France, April 13-17, 2003),24.10See, eg, Gerry Bates, Environmental Law in Australia (LexisNexisButterworths, 8th ed, 2013),745.

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registered proprietor may transfer his estate or interest in

land by an instrument in an appropriate approved form.’11Land

transfer occurs through different mechanisms. The most common

one is through sale or conveyance. Transfer could also occur

by gift which is a transaction without consideration. Transfer

may also be carried out by the operation of the law upon the

death of the proprietor in the form of intestate succession or

upon his bankruptcy, in both cases without his

will.12Succession could also be testate, i.e. based on will.13

The registration of instruments or dealings of which entry is

made in the registry is therefore an essential component of

the land registration system in Australia.14

However, except facilitating the land market, the Australian

cadastral system serves little or no other purpose. It does

not incorporate information on land value or tax, the

environment,15 planning and development interests and building

register in a specific manner.16 Indeed, buildings are the main11Transfer of Land Act 1958 (Vic), s 45(1).12The mechanisms of transfer by intestacy, will and bankruptcy areusually referred to as transmission. Transfer of Land Act 1958 (Vic), sS4. See also Whalan, above n 2,202.13See Transfer of Land Act 1958 (Vic), s 49.14See J E Hogg, The Australian Torrens System (Wiliam Clowes and Sons,1905),763;Transfer of Land Act 1958 (Vic), s 27 (C). 15For discussion of how the Australian cadastral system fails tointegrate environmental RRRs, See generally Justine Bell, An IntegratedInformation Management Model for Ecologically Sustainable Development (QueenslandUniversity of Technology, PhD ed, 2010). See also Melkamu Moges, ‘ACadastral System Approach to Environmental Protection: a Focus onAustralia’ ( Forthcoming Issue, 2014) Property Law Review.16Rohan Bennett, Property Rights, Restrictions and Responsibilities: Their Nature, Designand Management (PhD Thesis, University of Melbourne, 2007),235; Rohan

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part of the land registration system as the definition for

land includes them.17 However, there is no specialised form of

register specifically for these properties. Sometimes this

could be needed for properties with special parameters such as

apartments. With respect to land shown as common property on a

plan of subdivision or a plan of strata or cluster

subdivision, the Owners Corporation Act Vic (2006) provides that the

Governor in Council may make regulations with respect to

documents or information required to be lodged with the

Registrar of Titles.18 But such rules do not exist. Further,

registration of plans does not seem to be specific and clear

enough to satisfy registration of buildings at least in theory

although the practical significance of this view might be

negligible.19 In Australia, local councils and utilitiesBennett, Jude Wallace and Ian Williamson, 'Organising LandInformation for Sustainable Land Administration' (2008) 25 Land usePolicy 127.17See Transfer of Land Act 1958 (Vic),s4; Subdivision Act 1988(Vic), s3 (1).Especially, in the case of sale of land, the sale or conveyance isdeemed to include the land, attachments to the land, attachments tothe attachments of the land and all rights and interests embodied toall these. Property Law Act 1958 (Vic), s62 (1), (2). This is in accordwith the ‘doctrine of fixtures’ which stipulates the circumstancesin which personal property becomes part of real property. Fordiscussion of the scope of and meaning of real property or land inthe Australian property law see generally Adrian Bradbrook et al,above n 6 , Chapter 1.18Owners Corporation Act Vic (2006),s 204 (1) (b).19Plans, namely, a plan of subdivision and a plan of consolidationplay crucial role in land registration because buildings are onlyregistered in their own right by means of registration of plans. Thelaw clearly stipulates that a plan may be registered in the officeof land registration for any land a subject of regulation by theTorrens act. See Subdivision Act 1988 (Vic),s 5(3), Part 4;Transfer of LandAct 1958 (Vic),s27G. The Sale of Lands Act even provides that, inprinciple, a person shall not sell a lot in a plan of subdivision(whether certified or not) to anyone except a statutory body or

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maintain property records for their own planning and tax

purposes; buildings are part of these property records. This

means that the system provides for little array of options.20

For this reason, the cadastral system could be considered

under-utilized and not truly multi-purpose.21To that extent,

the system’s capacity to meet certain principles may also be

compromised. Especially the principles such as security,

publicity or accessibility, sustainability and completeness

are compromised.22 Because the more information the system

keeps, the better these principles will be met.

Finally, a brief note needs to be made as to the methodology

used in the paper. Australia is a vast nation consisting of 6

states and 2 territories. Each state and territory operates

separate cadastral systems with significant idiosyncrasies and

complexities including different levels of technical and

spatial infrastructure development.23 They have also adoptedauthority if the plan has not been registered by the Registrar. Saleof Land Act 1962 (Vic), s 9AAA (1).20 Providing array of options is one principle of cadastral systems.It includes allowing cadastres to record a continuum of land tenurearrangements from private and individual land rights through tocommunal land rights, or the ability to accommodate traditional orcustomary land rights. The Bogor Declaration: United NationsInterregional Meeting of Experts on the Cadastre 1996 (TheInternational Federation of Surveyors),No 4.5.21See Bennett, above n 16, 222. 22For discussion on the meaning of these principles, see generally PtII(D)(2). 23See, eg, Bradbrook et al, above n6,16; Pamela O’Connor, SharonChristensen and Bill Duncan, 'Legislating for Sustainability: a

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various appropriate legislations for the cadastral system as

the importance of legislation was understood at early stage of

the system.24 However, all other states’ land registration laws

were originally derived from the South Australian Torrens Act

introduced in 1858. As a result, the statutes and the judicial

interpretations in the states are so similar that it makes

perfect sense to group them together as one system, i.e. the

Australian Torrens system.25 Therefore, the cadastral system

Framework for Managing Statutory Rights, Obligations andRestrictions Affecting Private Land' (2009) 35 Monash University LawReview 233,251. Park, Wallace and Williamson observe that among theprojects being undertaken by the Victorian Land Registry hasundertaken projects for the harmonisation of differences of theregistered land statutes between the various states and territoriesin addition to the federal government’s effort of harmonising aneven wider range of statutes. They further claim that ‘Harmonisationof Australia’s eight different land title registration systems maybe the best way to achieve the original intention of a complete andcomprehensive register.’ M M Park, J Wallace and I P Williamson,'Orchestrating a Harmonious System' (2009) 83 Victorian Law InstituteJournal 50,1.24As De Soto astutely observed:It is law that detaches and fixes the economic potential of assets as avalue separate from the material assets themselves and allows humans todiscover and realize that potential. It is law that connects assets intofinancial and investment circuits. And it is the representation of assetsfixed in legal property documents that gives them the powers to createsurplus value. … ultimately, an integrated, national social contract willbe concretized only in laws. All other disciplines play only a supportingrole.

Hernando De Soto, The Mystery of Capital Why Capitalism Triumphs in the West andFails Everywhere else (Black Swan, 2000),165-166.25See also Park, above n4,94;Hogg,above n 14;Park, Wallace andWilliamson, above n23,6-7.For a summary of the original andhistorical similarity among the Torrens system in the states andterritories see Park, Wallace and Williamson, above n23,6-7. Thelegislation regulating the Torrens system is usually called a RealProperty Act or Land Transfer Act or Land Titles Act. Thus inVictoria the relevant statute is called the Transfer of Land Act of 1958(Vic). ‘Significant difference is shown with regard to how far eachsystem allows unregistered interests to impact a title.’ See, eg,

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across Australia being vast but fundamentally with similar

features, in this paper, I frequently refer to the Victorian

Torrens statute when there is the need to give specific

illustrations. This is however done in a manner that would not

negate the validity of the arguments I have made.

II Essential Requirements of Cadastral System Legislation

For a cadastral system to bring about sustainable benefits and

sustainable development to a society, it must be established

on a solid foundation. The various functions of cadastral

systems could be achieved if there is a framework of sound

legislation which identifies some essential requirements under

which cadastral systems could operate efficiently.26 As

Odhiambo indicated formalization is neither good nor bad by

itself as a technical process.27For it to be successful, it

must be established on the basis of distinct essential

criteria. Different individuals have identified various

factors that impact on the effectiveness of cadastral systems.

According to Griffith-Charles, the factors are culture,

Kate Dalrymple, Ian Williamson and Jude Wallace, 'Cadastral Systemswithin Australia' (2003) 48 The Australian Surveyor 37, 5.26For discussion about the various functions served by cadastralsystems, see eg United Nations, Economic Commission for Europe Working Partyon Land Administration Social and Economic Benefits of Good Land Administration (HMLand Registry, Second ed, 2005),6;UN-ECE, Economic Commission for EuropeGeneva Land Administration Guidelines with Special Reference to Countries in TransitionECE/HBP/96 (United Nations, 1996),7; UN- ECE, Land Administration inthe UNECE Region: Development Trends and Main Principles ECE/HBP/140 (UnitedNations, 2005),22-24; Jürg Kaufmann and Daniel Steudler, Cadastre 2014:A Vision for a Future Cadastral System, International Federation of Surveyors, Switzerland.(International Federation of Surveyors (FIG), 1998),30.27Michael Odhiambo, Improving Tenure Security for the Rural Poor Kenya, Tanzania andUganda– Case Study (FAO, 2006),14.

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availability of credit market, legislation and policy, cost

effectiveness, political relationships, existence of

alternative transacting arrangements including informal

arrangements and the type of registration (systematic or

sporadic, voluntary or compulsory).28Professor Bogaerts, on his

part, emphasises five aspects: politics and governance,

legislation, organisational aspects, financial aspects and

technology.29 For the purpose of this article, four most

critical factors that impact on the establishment of a

sustainable cadastral system would be identified: governance

and politics, institutional capacity, the need to recognize

‘all’ rights including customary tenure and other principles.30

A cadastral system that is dependent on these essential

conditions may be referred to as a sustainable cadastral

system. The principle of sustainability is certainly at the

28See Charisse Griffith-Charles, the Impact of Land Titling on LandTransaction Activity and Registration System Sustainability: a CaseStudy of St Lucia (PhD Thesis, University of Florida, 2004),58-60. 29See generally T Bogaerts, Cadastral Systems: Critical SuccessFactors (2004) OICRF FIG <http://www.oicrf.org/>. Lyons and Chandraalso provide for a number of factors that impact on sustainabilityof cadastral system projects during the selection, design andimplementation phases. See generally Ken Lyons and Satish Chandra,Undertaking Land Administration Projects: Sustainability, Affordability, OperationalEfficiency and Good Practice Guidelines (AusAid, 2001),29-34. 30This however does not mean that other conditions are not necessary.As Migot-Adholla et al, claimed more than 20 years ago basedresearch on their research regarding sub-Saharan Africa (Ghana,Kenya, and Rwanda), factors such as rural physical infrastructure,effective credit, marketing institutions, inputs and newtechnologies are very useful. See generally Shem Migot-Adholla etal, 'Indigenous Land Rights Systems in Sub-Saharan Africa: AConstraint on Productivity?' (1991) 5 The World Bank Economic Review155.However, in my view, these conditions will change only if theessential requirements of a sustainable cadastral system identifiedin this paper are fulfilled.

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centre of these factors.31 On the other hand, it needs to be

noted that a sustainable cadastral system requires a

legislative framework which needs to account for all of these

essential requirements. From a legislative perspective, the

importance of these criteria could be seen in at least two

perspectives.32 Firstly, they are important because the law

cannot be ‘law’ without their fulfilment in total or at least

in substantial degree, as Fuller argues.33 Secondly, they are

important because the law, without due regard to them, may not

31According to the International Federation of Surveyorssustainability is one of seven important principles for the actualor potential success of cadastre. See Pt II (D)(1). The term is alsobeing increasingly used in cadastral system research. See, eg,Bennett, Wallace and Williamson, above n16, 126; Stig Enemark,'Supporting Capacity Development for Sustainable Land AdministrationInfrastructures' (paper presented at the eighth United NationsRegional Cartographic Conference for the Americas (UNRCCA), NewYork, 27 June – 1 July 2005); R W M Johnson, 'the ResourceManagement Act and Property Rights '(Paper presented at Proceedingsof the Annual Conference New Zealand Association of Economists andthe Agricultural Economics Society, New Zealand, 24-26 August 1992);Mika-Petteri Törhönen, 'Sustainable Land Tenure and LandRegistration in Developing Countries, Including a HistoricalComparison with an Industrialised Country' (2004) 28 Computers,Environment and Urban Systems 545; O’Connor, Christensen and Duncan,above n 23; Kate Dalrymple, Expanding Rural Land Tenures to Alleviate Poverty(PhD Thesis, University of Melbourne, 2005). 32For Fuller’s account in this, see generally S Viner, 'Fuller’sConcept of Law and its Cosmopolitan Aims' (2007) 26 Law and Philosophy1,14-17.33See Pt II (D)(2)).

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meet its planned functions or purposes.34 Each of these

requirements and principles is discussed below.

A Governance and PoliticsCadastral systems must be carried out under a responsible type

of governance and politics. To begin with, cadastral systems

are basically a public infrastructure, meaning that they are

provided by government. Much of the success of a cadastral

system ‘will depend on the quality, character and capacity of

the state.’35 Indeed, only a governmental structure that is

responsible and accountable and which has got the ability to

34See Pt II (B) for discussion about the function of cadastral systemlaws of Australia. In addition to facilitating land trading, theselaws are implicitly designed to promote peace and order, justice andgovernance in the cadastral system. The issues of peace, order,justice and governance have been the hallmark of the works ofseveral (European) enlightenment thinkers notably Hobbes and Locke.See eg John Finnis, Natural Law and Natural Rights (Oxford UniversityPress USA, 2nd ed, 2011); George Fletcher, Basic Concepts of Legal Thought(Oxford University Press, 1996), 174-184.Rachel Belton, CompetingDefinitions of the Rule of Law: Implications for Practitioners CarnegieEndowment for International Peace,80 <http://carnegieendowment.org>. 35Peter Larmour, 'Policy Transfer and Reversal: Customary LandRegistration from Africa to Melanesia' (2002) 22 Public Administration &Development 151,160. Many other researchers have clearly emphasisedthe criticality of governance and institutions for successfulproperty systems. See eg Daniel Fitzpatrick, 'Evolution and Chaosin Property Rights Systems: The Third World Tragedy of ContestedAccess' (2006) 115 The Yale Law Journal 996,1000; Robert Deacon,'Deforestation and the Rule of Law in a Cross-Section of Countries'(1994) 70 Land Economics 414; Daron Acemoglu and James Robinson, WhyNations Fail the Origins of Power, Prosperity, and Poverty (Crown Business New York,1st ed, 2012);Gani Aldashev, 'Legal Institutions, Political Economy,and Development' (2009) 25 Oxford Review of Economic Policy 257,266; SnyderF G, 'Law and Development in the Light of Dependency Theory'(1980)14 Law and Society Review 723,23, cited in Kevin Davis and MichaelTrebilcock, 'Legal Reforms and Development' (2001) 22 Third WorldQuarterly 21; De Soto, above n 24; Odhiambo, above n 27,v.

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respect the fundamental rights of its own people can provide

this critical service. On the other hand, a governmental

structure of this nature can exist only if it is

democratically elected by the people to whom the cadastre is

set. It is a well settled fact that democracies generally

provide by far better property rights than other forms of

governance such as autocracy and dictatorship.36Only a

government that assumes power under the well -known democratic

channels can define land rights, enforce them, and can, most

important of all, have the willingness itself to serve the

people fairly.

Zakout and Torhonen identify eight key principles of good

governance for land administration: efficiency, effectiveness,

transparency, consistency and predictability, integrity and

accountability, subsidiarity, autonomy and depoliticization,

civic engagement and public participation, equity, fairness

and impartiality, legal security and rule of law.37 When

cadastral systems are implemented under conditions where these

above principles are not adhered to, the result is bad36See generally Clague Christopher et al, Property and ContractRights in Autocracies and Democracies (Munich Personal RePEcArchive, 1996),51. They also argue that ‘a stable democracy withoutany property and contract rights is not in the feasible set. Alllasting representative governments that have been observed, howeverwise or unwise their laws may be, always have extensive property andcontract rights’ :at 6. 37Zakout Wehrmann and M Torhonen, Good Governance in LandAdministration :Principles and Good Practices (World Bank and FAO, 2007) citedin Keith Bell, 'Good Governance in Land Administration' (Paperpresented at FIG Working Week Strategic Integration of SurveyingServices, Hong Kong, China SAR, May 13-17, 2007),12.

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governance and politics. According to FAO, there are three

major symptoms of bad governance: state capture,

administrative corruption and lack of capacity.38 As Kasper

clearly pointed out, bad government is one of the main enemies

of secure property rights of the people.39

B Institutional Capacity The second requirement for sustainable cadastral systems is

institutional capacity of the state.40 Although, this principle

is the most important part of governance mentioned above,

further explanation is warranted to emphasize its unique role

for establishing sustainable cadastral systems.

It is not unusual for legal theorists, notably Fuller, Finnis

and Raz to view the rule of law in light of the legal

institutions,41 in addition to the uncontroversial substantive

38For description of the meaning of each of these words see generallyFAO, Good Governance in Land Tenure and Administration (FAO, 2007),15-17.39Wolfgang Kasper, 'Secure Property Rights–– the Foundation ofProsperity and Freedom in Africa' (Paper presented at TheInstitutional Framework for Freedom in Africa, Nairobi/Kenya,February 2007),12. The other two enemies are tradition and taboosand crimes.40Joireman generally argued that when the state fails to enforceproperty rights, non-state or private institutions shall emergewhich define and enforce them. See generally Sandra Joireman, Wherethere is no Government Enforcing Property Rights in Common Law Africa (OxfordUniversity Press, 2011). 41See Lon Fuller, The Morality of Law, Rev. Ed.(New Haven: Yale UniversityPress, 1969),81-91;Svend-Erik Skaaning, 'Measuring the Rule of Law'(2010) 63 Political Research Quarterly 449,452. See also Daniel Rodriguez,Mathew McCubbins and Barry Weingast, 'The Rule of Law Unplugged' 59Emory Law Journal 1455,1471;Rachel Belton, Competing Definitions of theRule of Law: Implications for Practitioners Carnegie Endowment forInternational Peace <http://carnegieendowment.org>,16.

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and procedural contents or aspects of legislation which will

be discussed latter.42 Raz, for instance, notes that ‘many, if

not all, legal philosophers have been agreed that one of the

defining features of law is that it is an institutionalized

normative system.’43In the context of institutional

requirements of cadastral system law, three principles are

particularly relevant: the principles of enforceability,

government bound by law and equality before the law.

1 Enforceability of Cadastral System Law

Enforceability means that ‘laws that are adopted are

effectively enforced by government and/or are effectively

enforceable through the courts or other agencies of the state

by private parties.’44As Fuller correctly noted, the law and

the practice unfortunately, may not be in terms with each

other ‘in a great variety of ways: mistaken interpretation,

inaccessibility of the law, lack of insight into what is

required to maintain the integrity of a legal system, bribery,

prejudice, indifference, stupidity, and the drive toward

personal power.’45

The machinery of law enforcement itself should not deprive law

of its ability to guide behaviour.46 The law requires an

42See Pt II (D)(2).43See generally Joseph Raz, The Authority of Law Essays on Law and Morality(Oxford University Press, 2nd ed, 2009),105-111.44Kevin Davis and Michael Trebilcock, 'Legal Reforms and Developent'(2001) 22 Third World Quarterly 21,30.45Fuller above n 41,81.46Colleen Murphy, 'Lon Fuller and the Moral Value of the Rule of Law'(2005) 24 Law and Philosophy 239,247.

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implementation or enforcement in an efficient and effective

fashion. An unenforced law is not worth the paper on which it

is written.47 Cadastral system institutions require capacity in

order to enforce the cadastral system legislation in

accordance with cadastral system principles and requirements.

Hence cadastral systems should not be established under

conditions where there is no skill, training and education,

and attitude specifically for cadastral activities. And their

further development, once they are started, must be seen in

light of the continued development in capacity. Such

activities as handling land registration procedure,

maintaining the quality of the cadastral system through

various ways such as keeping the data up-to-date and handling

land disputes requires capable institutions and staff.

2 Government Bound by Law

According to this principle, the responsible governmental body

is bound by the relevant cadastral system law. The very

original conception of the rule of law implies mainly that

government authorities, and not only the ordinary citizens,

are bound by the law48. Thus, Raz writes,

“The rule of law” means literally what it says: the rule of the

law. Taken in its broadest sense this means that people should obey

the law and be ruled by it. But in political and legal theory it

47See also Klaus Deininger and Gershon Feder, 'Land Registration,Governance, and Development: Evidence and Implications for Policy'(2009) 24 The World Bank Research Observer 233,239. See also Joireman,above n 40,5.48Belton, above n 41,8.

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has come to be read in a narrower sense, that the government shall be

ruled by the law and subject to it.49

Hence the principle of ‘government bound by law’ may be best

explicated under two quite related aspects of the rule of law:

rule by law and government action subject to the law. The

element of rule by law requires that ‘a government bound by

law must act through pre-written laws in executing its

decisions and change laws through established legislative

means.’50Rule by law is commonly contrasted with the idea of

‘rule by men’.51The latter connotes arbitrary action on the

part of the state institutions.52 Sandefur who convincingly

argues that an arbitrary action is a typical feature of

lawless government also identifies two classes of this kind of

action, namely, ‘rule according to the ruler's mere whim’ and

‘rule according to the ruler's mere self-interest.’53The former

means that the government acts without the assistance or

guidance of any rule.54The latter on the other hand implies

that the government, under the name of governance, acts for49Skaaning, above n 41,452. [Emphasis original]50Belton, above n 41,9. However rule by law is sometimes used in thenegative sense in which the government uses the law as a weapon forits policies and programmes ‘without being subject to any restraintit inherently imposes.’ Adriaan Bedner, 'An Elementary Approach tothe Rule of Law' (2010) 2 Hague Journal on the Rule of Law 48,57 (citationomitted).51See, eg, D Ivison, 'Decolonizing the Rule of Law: Mabo’s Case andPostcolonial Constitutionalism' (2007) 17 Oxford Journal of Legal Studiescited in Bedner, above n 50,57.52Ibid.53Timothy Sandefur, 'In Defense of Substantive Due Process, or thePromise of Lawful Rule' 35 Harvard Journal of Law & Public Policy283, 295.54Ibid.

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its own narrow interest; whereas we know that ‘a lawful act is

a use of the state's coercive powers in the service of some

general rule that realistically serves a public, and not a

private end.’55

The second aspect of the requirement of ‘government bound by

law’ is the demand that government action be subject to the

law and not be arbitrarily performed. That is, rule by good

quality laws is not sufficient but necessary. This aspect is

certainly the central component of the rule of law definitions

and hence commonly understood by many. ‘[I]t demands that the

government obey its own rules’.56

3 Equality before Cadastral System Law

The principle of equality is one of the components of the rule

of law as was pronounced originally by Dicey.57 Dicey was of an

opinion that ‘all people are equal before the law, and that

all, particularly government officials and clergymen, must be

tried under the same laws and in the same courts as ordinary

men.’58 Stated otherwise, the principle demands that all

people, officials and ordinary citizens alike, rich or poor,

majority members or minority groups, etc. are subject to

similar treatment for their actions.59 For instance, whether an

55Ibid291,299-307.56Bedner, above n 50,58.57Belton, above n 41,9 (citation omitted).58Ibid. See also Skaaning, above n41,452.59In line with this, Bedner argues that the rule of law has twofunctions: protection of citizens first, against the power of thestate, and second, against fellow citizens. See generally Bedner,above n 50,50-52.

19

offender is an official of a cadastral authority or an

ordinary proprietor, they shall receive equal treatment before

a court of law.

C Recognizing all Rights Including Customary Tenure

Cadastral systems need to keep as much information as possible

about land. In fact, land related information could be quite

complex. Moreover, the question of which types of rights

should be covered by the cadastral system is itself an

unsettled question.60 Despite this, I strongly hold that all

rights that fall under similar basic parameters should be made

to be addressed in the cadastral system.61

The need to recognize all rights is particularly important in

relation to registration of the so called customary rights to

which particular attention is warranted here. Although the

recent trend is in favor of registering customary tenure in

the operation of conventional cadastral systems,62the attention

60Some people seem to suggest that data about all land interestsshould be kept in the cadastral system. See generally Justine Bell,An Integrated Information Management Model for Ecologically Sustainable Development(Queensland University of Technology, PhD ed, 2010). Other people,however, hold that registering all interests in land in thecadastral system is an impossible and unnecessary venture. O’Connor,Christensen and Duncan, above n23, 251 (citations omitted); Bennett,above n16, 311,318; R Bennett, J Wallace and I P Williamson, 'AToolbox for Mapping and Managing New Interests over Land' (2008) 40Survey Review 43, 49.61See Pt IV below.62In this regard, it is vital to mention the Social Tenure DomainModel (STDM) initiated by Lemmen since 2002 and the ‘continuum ofrights’ approach advocated by UN HABITAT to integrate the largeproportion of land that exists outside the land registry especiallyin many Third World countries. See generally Clarissa Augustinus,Social Tenure Domain Model: What it can Mean for the Land Industry and for the Poor

20

being given to these tenures in particular is quite a recent

and rare phenomenon that needs a lot more examination and

research.

Customary tenure is a tenure based on a society’s custom.

Custom is a phenomenon whose very creation and existence is

squarely related to the very creation of society. A particular

group of society always has invented certain ways of practices

—bad or good, oral or documented— so as to govern their day to

day relationships (including property relations) in their life

whether they live as families, groups, networks or categories.

When a certain norm, usage, or practice is consistently

observed by a critical mass of community participants over a

statistically significant period, it becomes a custom. And

when custom attains a binding status, it becomes customary

law.

The notion of custom or customary law in the cadastral system

world is always understood as customary tenure. This is fair

in as much as the fate of customary land tenure is the same as

(International Federation of Surveyors, 2010); Clarissa Augustinus,Christiaan Lemmen and Peter Oosterom, 'Social Tenure Domain ModelRequirements from the Perspective of Pro-Poor Land Management'(Paper presented at Promoting Land Administration and GoodGovernance 5th FIG Regional Conference, Accra, Ghana, March 8-11,2006),25; UN Habitat, Secure Land Rights for all (2008) cited in Lemmen(2010) 52, the International Federation of Surveyors,4. These researchers envisage the registration of all sorts of RRRssuch as access right, cropping and cultivation right, investmentright, transmission right, customary rights or communal rights,adverse possession right, etc.

21

that of custom or customary law as a whole in many instances

including its nature and functions or benefits to society.63 In

this sense, customary tenure is a land tenure that is based on

customary rules being founded on the customs of a given

community.64 Like the property rights they govern,65 these

rules are socially embedded to the society to which they

relate and are recognized by them transferring continually

from generation to generation. In light of this, certain,

consistent and widespread use of land based on customary rules

can give rise to rights, restrictions and responsibilities

under customary tenure.

A successful or sustainable cadastral system could never

happen without the recognition of customary tenure. Operating

cadastral systems under a narrow context of already existing

statutory rights is absolutely self-defeating. Because the

majority of laws are only in the minds, practices, attitudes,

cultures of the majority of the society, outside of the papers

embodying statutory information. Such are known as customary

laws which are the well accepted or legitimate bases of modern

or statutory laws.66Recognition of all the rights definitely

63See, eg, Odhiambo, above n27,7.64 See also Dalrymple, above n31,100.

65See generally Leopold Pospisil, Anthropology of Law:A Comparative Theory(1971) cited in Fitzpatrick, above n 35.

66Eg Bederman notes, ‘as transmitted to us within the western legaltradition- through Roman law, the ius commune, civilian systems, andEnglish common law-customary regimes still retain their inchoate andamorphous character as “bottom-up” law-making.’ David Bederman,Custom as a Source of Law (Cambridge University Press, 2010),176. See

22

enhances the legitimacy or acceptability of cadastral systems

and their legislations. Legitimacy implies that the law is

acceptable which means that ‘people feel that their values and

interests are taken account of to such an extent that they can

accept the legal system as a whole.’67

Failure to properly recognize or integrate customary or

communal tenure into the formal cadastral system results in a

number of direct negative consequences in all places. For

example, the problem has been considered as ‘one of the major

drawbacks in land titling reform programs in Southeast

Asia’.68Non-recognition adversely impacts on the economy by

fostering poverty, it leads to destructive conflicts and

violence like the one happened in Zimbabwe in 2005;69it results

in, among other things, indeterminate boundaries, weak land

also Jeremy Webber, 'The Grammar of Customary Law' (2009) 54 McgillLaw Journal 579, 579,582; De Soto, above n24, 189.67Christian Dahlman, 'Predicatble Rules and Flexible Principles-theProblem of Ideological Pluralism and Legitimacy' in Luc Wintgens(ed), Legisprudence: A New Theoretical Approach to Legislation Proceedings of the FourthBneleux-Scandinavian Symposium on Legal Theory (Hart Publishing, 2002)81,81.See also Michael Trebilcock and Ronald Daniels, Rule of Law Reform andDevelopment: Charting the Fragile Path of Progress (Edward Elgar, 2008),33-37;Brett Miller, 'Living Outside the Law: How the Informal EconomyFrustrates Enforcement of the Human Rights Regime for Billions ofthe World's most Marginalized Citizens' (2006) 5 Northwestern Journal ofInternational Human Rights Living 127,130.68David Jones, 'Land Registration and Administrative Reform inSoutheast Asian States: Progress and Constraints' (2010) 11International Public Management Review 67,76. 69Michael Wines, Zimbabwe Police Resume Drive to Raze Slums (New York Times,2005),168.

23

administration, tenure insecurity, landlessness and

homelessness, and overcrowding as was evident in Ghana.70

D Other Principles

The last essential requirement of cadastral system

legislations is the need to adhere to some other important

principles other than the abovementioned ones.71These

principles could be gathered from cadastral system literature

and legal theory. Cadastral system laws could improve their

capacity to achieve their basic functions through regulating

and enforcing the system on the basis of the well-known

principles. That means, cadastral system legislations could be

evaluated on the basis of the degree in which they recognise

these principles. Let us now briefly turn on these principles.70Ministry of Lands and Forestry, Republic of Ghana, National LandPolicy (2007),169 cited in Joseph Blocher, 'Building on Custom: LandTenure Policy and Economic Development in Ghana' (2006) 9 Yale HumanRights & Development Law Journal,169.71The United Nations Economic Commission for Europe has identifiedcertain important matters or principles which cadastral systemlegislations should incorporate. Accordingly, cadastral system lawsshould define legal forms of land tenure, distinguish between realand personal property (immovable and movable property),betweenownership and possession and use of land including define the meansand conditions whereby use rights can be changed to ownershiprights, register rights less than ownership, define maturity datefor rights, can establish institutions for land administration andspecify their role, establish efficient administrative systems forland transfer and mortgage registration, ensure the manner howrights registered are guaranteed by the State, codify all forms ofstatutory restriction that may apply to land, and co-ordinatelegislation relating to urban planning, land use and the recordingof information on the land register.

United Nations, Economic Commission for Europe Working Party on LandAdministration Social and Economic Benefits of Good Land Administration (HM LandRegistry, Second ed, 2005),14; UN- ECE, Land Administration in theUNECE Region: Development Trends and Main Principles ECE/HBP/140 (UnitedNations, 2005),6-7.

24

1 Principles from Cadastral System Modelling

Cadastral system knows of various models and guidelines. Two

models are particularly useful for the purpose of this

article: the FIG Statement on the Cadastre and Cadastre 2014.

The FIG statement on the cadastre identified a number of well

recognised principles or criteria for measuring the actual or

potential success of a cadastre. These are described below:72

Security—the system should be secure such that a land market

can operate effectively and efficiently. Financial

institutions should be willing to mortgage land quickly and

there should be certainty of ownership and parcel

identification. The system should also be physically secure

with arrangements in place for duplicate storage of records in

case of disaster and controls to ensure that unauthorised

persons cannot damage or change information.

Clarity and Simplicity—to be effective the system should be

clear and simple to understand and to use. Complex forms,

procedures, and regulations will slow the system down and may

discourage use of the system. Simplicity is also important in

ensuring that costs are minimised, access is fair and the

system is maintained.

72FIG, above n 1. These are more or less similar to the principlesdevised by Simpson: security, simplicity, accuracy, expedition,cheapness, suitability to circumstances and completeness of therecord. Simpson S R, Land Law and Registration (Cambridge UniversityPress, 1976) 17 quoted in Daniel Steudler, A Framework for the Evaluation ofLand Administration Systems (PhD Thesis, University of Melbourne,2004),77-8. See also generally, The Bogor Declaration, above n 20,particularly no 4.

25

Timeliness and Completeness— the system should provide up-to-

date information in a timely fashion. The system should also

be complete, that is, all parcels and all land rights,

restrictions and responsibilities should be included in the

system.

Fairness—in development and in operation, the Cadastre should

be seen as an objective system separated from political

processes. Fairness also includes providing equitable access

to the system through, for example, decentralised offices,

simple procedures, and reasonable fees.

Accessibility—the system should be capable of providing

efficient and effective access to all users.

Cost—the system should be low cost or operated in such a way

that costs can be recovered fairly and without unduly

burdening users.

Sustainability—there must be mechanisms in place to ensure

that the system is maintained over time. This includes

procedures for completing the Cadastre in a reasonable time

frame and for keeping information up-to-date. Sustainability

implies that the organisational and management arrangements,

the procedures and technologies, and the required educational

and professional levels are appropriate for the particular

jurisdiction.

Cadastre 2014 introduced the principle of ‘multipurpose

cadastre.’ The changes stressed in the ‘multipurpose cadastre’

component are the inclusion of ‘all’ rights in the cadastral

26

system, the possible merger of cadastral and land register

activities and the extension of the number of services that

the cadastral system might deliver such as the supply of

valuation data or tax assessment data.73 The inclusion of all

rights also implies the recognition of various forms of tenure

namely, private, public, and customary or group tenure.74

Cadastre 2014 also lays down other important principles. These

include the principle of title registration and respect for

the four principles for land registration. Cadastre 2014 knows

only the title registration approach to land rights and not

the deeds system.75 Respect for the four principles for land

registration means respect for the booking principle, the

consent principle, the principle of publicity and the

principle of specialty which were described by

Henssen.76Henssen observes that in spite of the differences

between the systems of the numerous countries operating a land

registration system (either deeds or titles), these four basic

legal principles can generally be recognized. He describes the

principles as follows:

The booking principle states that a change in real rights on an

immovable property, especially by transfer, is not legally

73Kaufmann and Steudler, above n26,15.74See also Molen above n9,11-2, 18.75Kaufmann and Steudler, above n26,28.76Jo Henssen, 'Basic Principles of the Main Cadastral Systems in theWorld' (Paper presented at Annual Meeting of Commission 7,Cadastreand Rural Land Management, the International Federation of Surveyors(FIG), Delft, The Netherlands, May 16, 1995) cited in Kaufmann andSteudler, above n26,28.

27

effectuated until the change or the expected right is booked or

registered in the land register.

The consent principle implies that the real entitled person who

is booked as such in the register must give his consent for a

change of the inscription in the land register.

The principle of publicity implies that the legal registers are

open for public inspection, and also that the published facts can

be upheld as being more or less correct by third parties in good

faith, so that they can be protected by law.

The principle of specialty implies that in land registration, and

consequently in the documents submitted for registration, the

concerned subject (man) and object (i.e. real property) must be

unambiguously identified.77

2 Principles from Legal Theory

In addition to the principles discussed before, there are a

number of elements or factors in legal theory that make up a

good or satisfactory cadastral system law.78Fuller has coined

eight canons of the law which, according to him, a legal

system needs to possess or exhibit as a minimal amount of

respect and dignity for those affected by it and which,

together, give the law its existence.79

77Henssen, above n76.78The term ‘satisfactory’ is used by Watson who submits that theextent to which a source of law is satisfactory should be judged bythree tests, namely, responsiveness, comprehensibleness andcomprehensiveness. Alan Watson, Sources of Law, Legal Change and Ambiguity(University of Pennsylvania Press, 1984),112. It should be notedthat most of the features of legislation discussed in this sectionare also true for all legislations irrespective of the type ofsubject regulated- cadastral system or otherwise.79David Luban, 'The Rule of Law and Human Dignity: Re-ExaminingFuller’s Canons' (2010) 2 Hague Journal on the Rule of Law 29,31;Viner,above n32,15. See also Robert Summers, 'Professor Fuller on Moralityand Law' in Robert Summers (ed), More Essays in Legal Philosophy General

28

These are generality of law, promulgation, prospectivity,

clarity, consistency or coherence, possibility, constancy, and

congruence between official action and declared rule.80 He

calls them ‘implicit laws of lawmaking.’81 The principle of

congruence was seen in relation to the institutional

requirements.82 All the other canons shall be briefly described

below together with one more essential principle— respect for

human rights and freedoms.

The principle of generality- Laws are expected to be applied

both regularly and universally.83 Special legislation, in

general, is a violation of this requirement.84This means that

Assessments of Legal Philosophies (Basil Blackwell, Oxford, 1971),101. Othertheorists notably Raz and Finnis have also formulated more or lesssimilar principles. See Skaaning, above n 41, 452; Murphy, aboven46,248. John Locke also emphasizes the importance of governancethrough ‘established standing Laws, promulgated and known to thePeople.’ Jeremy Waldron, The Rule of Law and the Measure of Property(Cambridge University Press, 2012),34. Thus he writes ‘[t]helegislative or supreme authority cannot assume to itself a power torule by extemporary, arbitrary decrees, but is bound to dispensejustice and to decide the rights of the subject by promulgated,standing laws.’ Thomas Cook (ed), Two Treatsies of Government by John Locke(Hafner Publishing Co., 1947), 190.80See generally Fuller, above n41,46-91.81Kenneth Winston (ed), The Principles of Social Order Selected Essays of Lon L Fuller(Hart Publishing, 2001),176. 82See generally Pt II (B).83Fuller above n41,46-49. See also Sandefur, above n53, 307-311Tatsuo Inoue, 'The Rule of Law as the Law of Legislation' in LucWintegens and Philippe Thion (eds), Legislation in Context: Essays inLegisprudence (Ashgate Publishing Limited, 2007),70-7.184Sandefur, for instance, notes that special legislation violates theprinciples of lawfulness as by providing special, localized benefits

29

laws are made with the expectation that they shall govern all

members of society in accordance with the principle of

equality before the law.

The principle of clarity of law- Clarity or intelligibility

requires that ‘laws must be comprehensible and not overly

vague’85 so much so that ‘citizens should be able to identify

what the laws prohibit, permit, or require.’86 Clarity also

requires that the laws should be certain in its content,

accessible and predictable for the subject.87Further ‘their

justificatory grounds and their intelligibility as justice-

based reasons’ should be clear enough.88

Consistency or coherence of laws89—‘[c]onsistency is a logical

aspect of a set of propositions’ or rules.90 This implies that

a single legislation may not contain different rules which

entail contradictory action, entitlement or duty.91 This also

to specific persons, it employs state power in an irregular mannernot justified by an overarching public purpose. Sandefur, above n53,309. See also Bedner, above n50,57.85Fuller, above n41,63-65. See also Mark Agrast et al, The World JusticeProject Rule of Law Index:2012 - 2013 (WJP, 2012-13),9,11. 86Murphy, above n46,240-241.87See Bedner, above n 50,56. Needless to say, principles of legaldrafting or logistics shall be of paramount help for the achievementof this principle. Danilo Zolo, 'The Rule of Law: A CriticalReappraisal' in P Costa and D Zolo (eds), The Rule of Law: History, Theoryand Criticism (Springer, 2007) 3,24.88Inoue, above n83, 71.89See generally Fuller, above n41,65-70. See also Fletcher, aboven34,188-194.90Luc Wintgens, Legisprudence Practical Reason in Legislation (AshgatePublishing Company, 2012),238.91See Kaarlo Tuori, 'Legislation between Politics and Law' in LucWintgens (ed), Legisprudence: A New Theoretical Approach to Legislation (HartPublishing, 2002) 99,106.

30

means that a law should not lack integrity or as Dworkin

claims, it should not be ‘a law that treats similar matters

differently on arbitrary grounds.’92 ‘Coherence for its part

means that a set of propositions ‘hang together’ or ‘make

sense’’ or are intelligible.93 That is, coherence requires that

different laws in a certain jurisdiction or legal system must

respect one another’s effect and not be incompatible.94

Consistency and coherence also requires ‘overall consistency

of justificatory grounds of different laws.’95

Prospectivity—laws regulate actions that happen after the

enactment of the relevant law.96

Publicity or Promulgation— a law should be publicly accessible

or open to the society not only at the time of its making but

also after its enactment. It means that the contents of the

law should be announced and cannot be kept secret or that the

law should be published.97

Possibility— the cadastral system law should be feasible, i.e.

capable of being practiced or implemented in practical terms.

Constancy— the laws should be stable or ‘that rules should do

not change so frequently that parties cannot adequately gauge

their actions and inactions.’98

92John Burke, The Political Foundation of Law and the Need for Theory with PracticalValue: The Theories of Ronald Dworkin and Roberto Unger (Austin & Winfield,1993),112-113.93See generally Wintgens, above n90,235-257.94Ibid252;Tuori, above n91,106. 95Inoue, above n83,71.96Fuller, above n41, 53.97See, eg, Luban, above n79,31; Murphy, above n46,240.98Fuller above n41,79-81.

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Respect for Human Rights and Freedoms— like other laws,

cadastral system laws create or establish rights and

responsibilities at a time. Human rights and freedoms to

property are part and parcel of other human rights and

freedoms recognized and enforceable under international human

rights laws.99 They should be respected in accordance with

other human rights and freedoms which are universal,

indivisible and interdependent.100Further, human rights and

freedoms are considered as being integral parts of a Higher

law, which is best understood as the set of constitutional and

fundamental principles of law or justice101 that should be

respected by any ordinary law.102

III The Australian Cadastral System Evaluated

In this part, I shall assess the Australian cadastral system

legislation from two perspectives:the instituional and

99See eg John Sprankling, The International Law of Property (OxfordUniversity press, 1st ed, 2014),16-17.Sprankling has also discussedabout the manner the right to property protected under theseinstruments is understood or interpreted: at 24-27. 100‘Vienna Declaration and Programme of Action’, Adopted by WorldConference on Human Rights, 14-25 June 1993-Vienna, UN doc. A/CONF.157/23, Art 5;Manfred Nowak, UN Covenant on Civil and Political Rights CCPRCommentary (N.P. Engel, Publisher, 2nd revised edition ed, 2005),xiv.101See Gerhard Schyff, Judicial Review of Legislation a ComparativeStudy of the United Kingdom, the Netherlands and South Africa(Springer, 2010),137-138. Fletcher accurately notes that theprinciple of higher law ‘brings an element of moral rectitude toliving under law.’ See generally Fletcher, above n34,33-40. 102Freedom or liberty ‘is likely to be achieved and maintained onlyif, all authority, …, is limited in the exercise of coercive powerby general principles to which the community has committed itself.’Friedrich Hayek, The Road to Serfdom (London: Routledge and Kegan Paul,1944),55. See also Tuori, above n91,101-102.

32

enforcement aspects and the types of rights, restrictions and

responsibilities recognised. With respect to the institutional

factor, I shall discuss about the manner how the cadastral

system legislation deals with two major aspects of

institutional enforcement, namely, the process of registration

and the quality assurance mechanisms. But firstly an

introductory discussion about the governance culture and the

institutions involved in the operation of the cadastral system

shall be provided in order to shed some background light to

the subsequent discussions.

A Introductory

Since Federation, Australia has maintained a stable liberal

democratic political system that functions as a federal

parliamentary democracy and constitutional monarchy.103 Queen

Elizabeth II of England is the formal Head of State and the

constitution recognises the Governor-General as the Queen’s

representative.104 Real power is held by the elected

government.105 The Federal or Commonwealth Government is based

on a bicameral Federal Parliament headed by an elected Prime

Minister, consisting of a senate which has proportional

representation among the states, and a House of

Representatives, elected by preferential voting among the

people in 148 electorates.106 The fact that Australia is a

highly democratic state has certainly helped the country to103Y Free, Australia Wikipedia the Free Encyclopedia<http://en.wikipedia.org/wiki/Australia>.104Dalrymple, Williamson and Wallace, above n25,1.105Ibid.106Ibid.

33

progress towards the right path in terms of providing a robust

cadastral system service to its citizens.

In the case of Victoria, the cadastral system is administered

by the Department of Transport, Planning and Local

Infrastructure. Within the Department, the two institutions of

surveying and land registration are administered by ‘Land

Victoria’.107 ‘Land Victoria is the Victorian Government's key

agency for land administration and land information’ and is

responsible for registration of land titles under the Torrens

system, General Law titles, and the status of Crown land.108 It

registers more than 700,000 dealings per year, with 98 per

cent of 2.2 million title searches conducted online.109 Today

land titles are securely stored electronically in the

Victorian Online Titles System about 3.4 million current

titles securely stored in the system.110

107Property and Land Titles (24 March 2014) Department of Transport,Planning and LocalInfrastructure<http://www.dtpli.vic.gov.au/property-and-land-titles/land-titles/about-land-titles/history-of-the-titles-office>.

108Property and Land Titles (24 March 2014) Department of Transport,Planning and Local Infrastructurehttp://www.dtpli.vic.gov.au/property-and-land-titles/land-titles/about-land-titles.

109Ibid.110Ibid.

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The Registrar of Titles is responsible for managing land

titles in Victoria whose roles and responsibilities cover more

than 200 Acts of Parliament.111 ‘The Registrar records property

ownership changes, mortgages, property transactions and new

subdivisions and protects the security of property ownership

through the State Government guarantee to title.’112

Transactions or dealings on a title can be conducted online

which can now take only a matter of minutes with the majority

of transactions.113

The Transfer of Lands Act 1958 (Vic) also provides mechanisms for

disupute settlment. Thus a proprietor may require the

Regsitrar to proivde in writing the grounds for his or her

refusal to register the right, or register an instrument or

deed or create a folio, or any other act required to be

exercised by him or her.114 The party may then inititate court

action where by the Regsitrar is summoned to appear before the

Spreme Court or the County Court to substantiate the

Registerar’s refusal.115Upon hearing the Registrar’s reply, the

111Property and Land Titles (24 March 2014) Department of Transport,Planning and Local Infrastructure<http://www.dtpli.vic.gov.au/property-and-land-titles/land-titles/about-land-titles/victorias-registrar-of-titles>. The Registrar isemployed under the TLA. See Transfer of Land Act 1958 (Vic), s 5.112Property and Land Titles (24 March 2014) Department of Transport,Planning and Local Infrastructurehttp://www.dtpli.vic.gov.au/property-and-land-titles/land-titles/about-land-titles/victorias-registrar-of-titles.113Ibid.114Transfer of Lands Act 1958 (Vic), s 116(1).115Transfer of Lands Act 1958 (Vic), s 116 (1A).

35

Court ‘may, if any question of fact is involved, direct an

issue to be tried to decide such fact; and thereafter the

Supreme Court or the County Court shall make such order in the

matter as the circumstances of the case require, and the

Registrar shall obey such order.’116

B Governance and Institutions

1 Strong Qualities

a the process of Registration

The process of Torrens registration involves a number of

activities such as application for registration, surveying,

mapping, etc. Lodging of an application is necessary for a

property right to be recorded in the register and there are

detailed rules which describe, among other things, the persons

who can submit application, the forms and the manner of

application including the use of a legal practitioner.117 The

persons who can apply are provided in detail.118

Every instrument lodged for registration shall be registered

in the order in which and as from the time at which it is

lodged for that purpose.119 When an application for the

registration of an instrument is made the Registrar may either

require submission of documents to facilitate the registration

including any relevant certificate of title,120or may totally

refuse to register if the instrument is not in the approved

116 Transfer of Lands Act 1958 (Vic), s 116 (3).117See, eg, Transfer of Land Act 1958 (Vic), Part II.118See Transfer of Land Act 1958 (Vic), ss 10, 98D.119Transfer of Land Act 1958 (Vic), s 34 (1).120Transfer of Land Act 1958 (Vic),s 27 (E).

36

form or is incomplete, or contains errors, etc.121Registration

is concluded by the creation of folios and the delivery of

certificate of title to the proprietor.122

On the bringing of land under the Torrens system, the

Registrar must create any necessary folios upon the approval

of a plan of consolidation or a plan of subdivision. A folio

is an essential constituent part of the Register and it refers

to a division of the Register that relates to one or more

parcels of land. A folio must include a distinctive

identifying reference for it. It must contain the recordings

that are required or authorised to be made in the Register and

that affect the land for which the folio is created. In

particular, a folio records such data as relating to the

proprietor, the land parcel and the rights.123

There are three types of folios—an ordinary folio, a

provisional folio and an identified folio.124 Each of these

folios has different qualities and effects for the proprietor.

An ordinary folio is of the highest quality as compared to the

other folios. The provision of three types of folia seems good

from the perspective of providing options to proprietors.

121Transfer of Land Act 1958 (Vic),s 44O(1). Also the Registrar shall notgive effect to a dealing by recording on the relevant folio until aplan of subdivision is approved or registered: at s 97 (4C). 122For the meaning and important features of a folio, see Transfer ofLand Act 1958 (Vic), s 27. 123Note that in the case of identified folio not all these detailsare required. See Transfer of Land Act 1958 (Vic), ss 27(7)(b), (7A).124Transfer of Land Act 1958 (Vic), s 9(2).

37

However, such level of sophistication creates more problem as

the difference among them is complicated and probably not

fairly justifiable. From the point of view of the principles

of simplicity, certainty and clarity it could be better if the

folium is made to be formed after all the necessary

requirements are fulfilled.

Another important component of a Torrens registration system

is a certificate of title also called folio

certificate,125required to be created by the registrar for each

folio.126A certificate of title is defined as ‘a document in

writing containing the information, or an extract of the

information, on a folio of the Register as at the date of

production of the certificate of title.’127In other words, it

shows all registrations and recordings made in the Register at

the time including the name(s) of registered proprietor(s) and

other interests such as mortgages, covenants and caveats.128

The certificate of title serves as a conclusive evidence of

the registered rights or the interests of the estate holder

125Real Property Act 1900 (Vic), s 40(1)-(1B).126Transfer of Land Act 1958 (Vic), s 27B(7).127Transfer of Land Act 1958 (Vic), s 27B (1). For detailed rules on thepreparation and issuance of the certificate of title, see s 27B.

128Property and Land Titles (24 March 2014) Department of Transport,Planning and Local Infrastructure<http://www.dtpli.vic.gov.au/property-and-land-titles/land-titles/about-land-titles/certificates-of-title>.

38

(usually the registered proprietor, mortgagee or chargee) as

indicated therein and the folio of the register to which it

relates.129 It may be used in any proceedings by courts or

‘persons having by law or consent of parties authority to

hear, receive and examine evidence.’130

b Quality Assurance Mechanisms

Another important mechanism whereby the strength of cadastral

system legislation in providing cadastral system institutions

and governance is measured is the extent to which it provides

for the manner in which cadastral system institutions could

foster the quality of the system and ensure its

sustainability. The cadastral system has a system of title by

registration which is based on four principles called the

mirror principle, the curtain principle, the principle of

indefeasibility and the insurance principle.131 According to

the mirror principle, registration is expected to reflect

accurately and completely the interests in a particular piece

of land or parcel to the public thereby avoiding the need to

look elsewhere for proof of title. According to the curtain

principle, all former and unregistered transactions do not

affect the registered title and the registration provides

conclusive source of title (the principle of

conclusiveness).The principle of indefeasibility implies that

the title of registered proprietor is protected upon

129Transfer of Land Act 1958 (Vic), s 27 (D).130Transfer of Land Act 1958 (Vic), s 27D(1);Real Property Act 1900 (Vic), s 40(1).131See eg Dalrymple, Williamson and Wallace above n25,4-5;Park, aboven4,103-106, 108.

39

registration. In Australia, the word ‘indefeasible’ is used in

only four of the eight jurisdictions and is specifically

defined only in the Queensland, Tasmania and Northern

Territory statutes. In the other jurisdictions including

Victoria, the concept of indefeasibility is to be gleaned from

a composite of provisions in the statutes especially from what

is commonly referred to as ‘paramountcy’ provision.132 By

virtue of the insurance or guarantee principle, the state is

responsible for the reliability of the register and for

providing compensation in the case of errors or omissions.

These principles are designed to bring maximum tenure

security, conclusiveness, fairness and state guarantee.

There are three major ways whereby the cadastral system

fosters institutional quality. The first involves caveats.

Caveats are very important instruments of protection of rights

as they serve as necessary precautionary devices. Caveats may

be used to protect land interests both before and after

registration. Although the principle is the protection of

title upon registration, protection can also be obtained

before registration is carried out by the use of these

devices.133In this context, caveats could be considered as the

principal effective methods of gaining protection for

unregistered interests.134 This is especially important in

terms of filling the gaps that any robust cadastral system may

be readily expected to come across. Caveats help enhance132Bradbrook et al, above n6, 203 133Whalan, above n2, 223.134Ibid.

40

compliance with the principles of security, fairness, consent

and publicity. They enhance security because they are used to

protect the rights of persons having better or valid title to

the land in preference to the others. They promote fairness

and consent principles because they are meant to prevent the

inappropriate and unfair transfer of title from one person to

the other without the knowledge of a proprietor. They also

enhance the principle of accessibility or publicity because

they fill the gap that the cadastral system has created in

letting the persons know about the dealings with respect to

land.

In Victoria, the main circumstances in which caveats are used

are:

Caveats against the bringing of land under the

registration system.

Caveats against dealing with land and

Caveats against granting title by adverse possession. 135

With respect to the first scenario, following notice given by

the registrar prior to creation of ordinary folio or

provisional folio, any person claiming an estate or interest

in the land may, before the creation of the folio for the land

or the removal of the warning, lodge a caveat in an

appropriate approved form forbidding the creation of the

135See generally Ibid 223-268. Note also that compensation may be dueon a person who lodges a caveat without reasonable cause. Transfer ofLand Act 1958 (Vic), s 118.

41

folio.136The registrar must then notify the person who has

applied for registration. 137 The registrar must not proceed

with the creation of the folio until the caveat has been

withdrawn or has lapsed; or a judgment or order in the matter

has been obtained from a court as final settlement.138

Caveats against a dealing with land could be applied in two

major situations. The first case pertains to caveats lodged by

persons claiming any estate or interest in land which is the

subject of transaction to forbid ‘the registration of any

person as transferee or proprietor of and of any instrument

affecting such estate or interest.’139 Following the caveat,

‘the Registrar shall give to the registered proprietor of the

estate or interest concerned notice of the caveat together

with a copy of the caveat or of such particulars thereof as

the Registrar deems material to such person.’140 The Registrar

shall duly consider the interest of the caveator and the

registered proprietor according to the detailed precautions

provided in the statute and shall make all necessary

amendments in the Register.141The second caveat against dealing

with land relates to one entered by the Registrar as he/she is

authorised to record a caveat on behalf of the Crown, a minor

136Transfer of Land Act 1958 (Vic), s 26R(1).137Transfer of Land Act 1958 (Vic), s 26R(3)(a).138Transfer of Land Act 1958 (Vic), s 26R(3)(b)139Transfer of Land Act 1958 (Vic), s 89 (1). 140Transfer of Land Act 1958 (Vic), s 89(3).141Transfer of Land Act 1958 (Vic), s 89A. It should be noted that theRegistrar is, in principle, barred from making a record in Registeraffecting land in respect of which caveat is in force: at ss 91,106 (2).

42

or a person of unsound mind for the prevention of any fraud or

improper dealing.142

The third scenario relates to caveats against granting title

by adverse possession. The act succinctly provides:A person claiming any estate or interest in the land in respect of

which any such application [for adverse possession] is made may

before the granting of the application lodge a caveat in an

appropriate approved form with the Registrar forbidding the

granting thereof.143

Updating is the second mechanism whereby the cadastral system

legislation in Australia keeps the quality of the cadastral

system. To make the system sustainable and secure for

indefinite time, all land information that is different from

the initial register data must be amended, corrected, or

deleted following any appropriate activity. In this way,

updating enhances the principles of security and

sustainability.

In Victoria, the Transfer of Land Act 1958 (Vic) provides updating

procedures almost in the same footing to the procedures of

initial registration.144The basic principle is that ‘the

142Transfer of Land Act 1958 (Vic), s 106(1)(a).143Transfer of Land Act 1958 (Vic), s 61(1).Following the caveat and havingmade all the necessary care, the Registrar shall give a vestingorder. 144In this context, the Torrens statute provides that an instrumentcapable of registration under the Act is registered by either makingrecordings in the Register or altering recordings in the Register.

43

Registrar may make any amendment of the Register or of any

other instrument or document wherever it is necessary to do

so.’145 Similarly, the Registrar may create, amend or

substitute a folio of the Register where he/she thinks it

appropriate to do so.146These updating mechanisms are carried

out according to the power given to the Registrar upon his

initiation.

Aside from the initiation of the registrar, amendment may be

made upon the application of an interested proprietor or upon

court order.147A proprietor may make an application for

amendment of the folio of the Register:

of his own land, in any case in which the boundaries area or

position of the land differ from the boundaries area or position of

the land actually and bona fide occupied by him and purporting to

be so occupied under the title in respect of which the folio of the

Register was created, or in any case in which the description in a

folio of the Register is erroneous or imperfect on the face of

it.148

A proprietor may also make an application for amendment of the

folio of the Register ‘of the land of any other proprietor,

Transfer of Land Act 1958 (Vic), s 27A.145Transfer of Land Act 1958 (Vic), ss 106(1)(e) (iii),27A(8),44H,44Q. 146Transfer of Land Act 1958 (Vic), s 27(9). See also s s27(11), 26N(6),26S(1)(h).147For an amendment following court order, Transfer of Land Act 1958(Vic),ss 103(1),26N(9). See also s 103 (1AA) for amendment followingVictorian Civil and Tribunal (VCAT) order.148Transfer of Land Act 1958 (Vic), s 99 (1).

44

where by reason of any error in survey or other misdescription

part of such land is actually and bona fide occupied by the

applicant together with the land described in the applicant's

folio of the Register.’149The Registrar shall afterwards make

the necessary amendment upon satisfaction of the errors.150

The other mechanism whereby the cadastral system legislations

enhance the quality of the system is through payment of

compensation in the case of damage on the property interest of

a person. This is the case when the previous two remedies,

i.e. caveats and updating do not succeed in protecting the

security of the register. As Whalan correctly claims, there

are two justifications for the Torrens statutes for

establishing the compensation scheme. The first is ‘to

compensate any person sustaining loss through omission,

mistake or misfeasance of the Registrar or any of his

officers.’151This promotes the principle of fairness or equity.

The second reason is that compensation is a corresponding

counterpart of the indefeasibility and insurance principles.152

In Victoria, the Torrens system has a state guaranteed system

of compensation called Assurance Fund or Consolidated Fund

based on the insurance principle.153One condition that gives

149Transfer of Land Act 1958 (Vic), s 99 (1).150Transfer of Land Act 1958 (Vic), ss 101, 102.151Whalan, above n2, 345. 152Ibid(citation omitted).153Transfer of Land Act 1958 (Vic), ss 107-111. The source of AssuranceFunds is not the State budget but the contribution of the landowners themselves. Thus Section 107 provides ‘[A]ll penalties and

45

rise to a claim for compensation in Victoria is the total

deprivation or irrevocable loss of the right holder of his

property in favour of a proprietor in good faith.154 ‘When a

bona fide purchaser for value is registered as proprietor, his

title, subject to certain exceptions, becomes absolute; any

person who prior to the registration of the bona fide

purchaser for value would have had a superior title no longer

has any title at all.’155The latter’s loss of property is made

through compensation. That is one reason why the Torrens

system of registration is said to have the feature of

simplicity and security because once registered the new owner

in good faith will simply become the owner irrespective of the

defect in the transferor’s title.

2 Shortcomings

As we have seen above, the Australian cadastral system

exhibits very strong institutional qualities. Despite this, it

has some shortcomings. The commonly agreed institutional

limitation relates to the lack of physical integration related

to its inherent nature. As Williamson correctly noted:

fees received under this Act shall be carried to and form part ofthe Consolidated Fund.’154Transfer of Land Act 1958 (Vic), s 110. For other circumstances orreasons of loss that give rise to an entitlement to the claim forcompensation, see :at ss118,26R (8),56. See also generally Whalan,above n2,361-365. The amount of compensation or indemnity shall notexceed the value of the estate or interest at the time when theerror, omission, mistake or misfeasance which caused the loss wasmade (s 110(4)).155Whalan, above n2,346.

46

the Australian system is derived from individual surveys of

individual parcels for individual owners in support of the legal

land transfer system. It is not derived from a complete cadastral

record of all land parcels as shown on a cadastral map having its

genesis in a land taxation system, which is the case with most

European systems.156

Besides, the major components of the cadastral system

(cadastral survey, land register and cadastral mapping) are

carried out in isolation and are not based on an integrated

system.157Especially, surveying is not part of the state-wide

cadastral mapping and registration process.158 This s true even

if most of these functions are, as we mentioned earlier,

implemented under the same institution, Land Victoria.

B Rights Recognised and Limitations

The second very important point with regard to measuring the

Australian cadastral system is the extent of its recognition

of property rights, restrictions and responsibilities. The

land registration system generally recognizes a number of

rights. These are freehold estates, leasehold estates,

mortgages, annuities or rentcharges, easements, restrictive

covenants, transmissions, rights under court order,

expropriation rights, adverse possession and profits à

156Williamson, above n8,1. 157Ibid14; I P Williamson, 'The Assessment of a Swiss Cadastre froman Australian Perspective' (1981) 30 The Australian Surveyor423,423;I P Williamson, 'Cadastres and Land Information Systems inCommon Law Jurisdictions' (1985) 28 Survey Review Online,189; Kaufmannand Steudler, above n26, 3;Bennett, above n16,76.158Williamson, above n8,8.

47

prendre.159Most of these rights are clearly provided. Under

both the Common Law and the Torrens system, these rights are

referred to as proprietary interests. In general terms, a

proprietary interest is one which is enforceable against third

parties160 as opposed to personal rights such as licenses or

‘permissive’ rights which are enforceable against parties to

the personal dealing or contract.161

The estates (freehold and leasehold) unlike the other rights

and interests, prima facie entitle to the actual possession of

the land while other rights and interests such as mortgages,

annuities and easements do not.162 The other way of putting

this is that estates are, in this sense, corporeal or tangible

rights while the other interests are incorporeal or intangible

rights or interests.163

Even if the system recognizes quite a number of rights, it has

still few critical shortcomings. These are related to Crown

lands and native ‘title’ lands. As the original purpose of the159For discussion about each of these RRRs, see generally Bradbrooket al, above n6.160A proprietary interest can be created by both Common Law andEquity Law which is also the case in Australia. For analysis of themeaning of proprietary rights see generally Ibid24-29. 161See also Gerry Bates, Environmental Law in Australia (Sydney: LexisNexisButterworths, 5th ed, 2002),58-59, 62-64. A permissive right orlicense is a personal arrangement between the person who grants thelicense (the licensor) and the grantee (licensee); it cannottherefore be transferred to anyone else. Licenses do not have thesecurity attached to a right in property and may be revoked at anytime: at 63. 162Hogg, above n14, 880.163Bradbrook et al, above n6, 29-30.

48

Australian cadastral system is enhancing the land market,164

interests where this condition does not apply such as state

forests, large bodies of water and other public or crown lands

have not been subjected to the system.165 It has been held that

in Australia, generally, ungranted Crown land is not

registered.166Hence the Victorian Torrens statute does not have

provisions on the registration of Crown or Public land.167

Secondly and more importantly the Australian cadastral system

does not incorporate the land of the indigenous community

which makes up approximately 20% of the Australian

continent.168The central reason has always been related to the

164See Pt I above.165Bradbrook et al, above n6,223. 166Park, above n4, 110.

167It provides that Crown land will be registered when alienated.Transfer of Land Act 1958 (Vic), s8. In Victoria, Crown land makes upabout one-third of Victoria. In fact, any Crown land could beidentified through ‘landata’. ‘A Crown land status report recordsthe current legal status of a single parcel of Crown land and anychanges from the date of entry in the database.’  Crown Land (7October 2014) Department of Transport, Planning and LocalInfrastructure, Property and Land Titles.<http://www.dtpli.vic.gov.au/property-and-land-titles/land-titles/about-land-titles/crown-land >.

168Stuart Bradfield, 'White Picket Fence Or Trojan Horse? the DebateOver Communal Ownership of Indigenous Land and Individual WealthCreation ' (2005) 3 Land, Rights, Laws: Issues of Native Titlecited in Maureen Tehan and Lee Godden, 'Analysing Aboriginal LandTenure and its Intersection with Economic, Social and Cultural‘sustainability’ for Australia’s Indigenous Peoples' (Paperpresented at Property Law Teachers Conference, University of SouthPacific, 2005),6; Lee Godden and Jacqueline Peel, Environmental LawScientific, Policy and Regulatory Dimensions (Oxford University Press, 2010),36.

49

history of politics and governance that stemmed from the very

beginning of the British colonization of Australia in 1788 and

that clearly began treating the indigenous peoples and the

non-indigenous ones apparently differently.169Nevertheless,

continuous struggle for land rights of the indigenous peoples

since the beginning of settlement170 gradually led to an

evolutionary recognition of their rights through court

litigation and statutory enactment. Some key outcomes were

obtained in the 1960s and afterwards such as the coming into

effect of the Aboriginal Land Rights Act 1976 (NT).171 These

developments established such legal models as trusts and

corporations to indirectly establish aboriginal people as

‘owners’ of land.172. Relatively significant outcome was

obtained through the Mabo v Queensland (No 2) (1992). In this

case, the High Court decided that aboriginal persons have a

land right called native title on the land and that the

Crown’s ultimate beneficial ownership right also called

‘radical title’ is subject to this right.173

169For a summary of the fundamental difference between the landtenure systems of indigenous Australians and the Australiancadastral system of the non-indigenous society see Clare Brazenor,The Spatial Dimensions of Native Title (PhD Thesis, The University ofMelbourne, 2000),39.170See generally Bradbrook et al, above n6, Chapter 6, Part V.171See Tehan and Godden, above n168,5; Dalrymple, above n 31,118. Fora detailed discussion of developments of statutory aboriginal landrights, see generally Tehan and Godden, above n 168,5-18;Brazenor,above n169,48.172Tehan and Godden, above n168,5. With all their relativesignificances, however, such types of recognition or grant of therights reflected policies of clear paternalism, coercion,segregation and protection: at 4.173See generally Bradbrook et al, above n6, 368-371.

50

What is quite interesting is that following the decision of

the court,174 the Federal Government enacted Native Title Act 1993

(Cth) in which it made clearer the detail nature of the native

title rights and their relationship with settler rights and

interests.175 The central principle in the Act provides that

‘[n]ative title is recognised, and protected, in accordance

with this Act.’176 Determination of as to whether native title

exists is a central function towards this end.177Further, all

states and territories have enacted complementary

legislation.178

Interestingly, the Act also establishes a National Native

Title Register. The more significant function of the Registrar

of this Register is the keeping of information regarding

approved determinations of native title by the Federal

Court.179 The crucial question here is the relationship of this

form of registration to the formal cadastral system. Put

otherwise, the question is whether native title is part of the

mainstream cadastral system of Australia. Section 199 (1) is

174See Native Title Act 1993 (Cth), Preamble.175Tehan suggests that this relationship was not clear in the Mabodecision and that the Act was a reaction to such complexrelationships. Maureen Tehan, 'Critique and Comment A HopeDisillusioned, an Opportunity Lost? Reflections on Common Law NativeTitle and Ten Years of the Native Title Act ' 2003 Melbourne UniversityLaw Review 523,524.176Native Title Act 1993 (Cth), s 10. 177See Native Title Act 1993 (Cth), s 225.178For example, the relevant act in Victoria is the Land Titles ValidationAct 1994 (Vic). See Bradbrook et al, above n6, n112, 375. 179See Native Title Act 1993 (Cth), Part 8 for the detail.

51

quite phenomenal in this regard which provides ‘[t]he

Registrar must, as soon as is practicable after including

details of a determination or decision in the Register, advise

the relevant land titles office of the determination or

decision.’ This is given effect to in the Torrens statute of

New South Wales which could serve as a guide for other states

and territories. It provides:

(1) The Registrar-General may, on evidence that appears to theRegistrar-General sufficient, record in the Register approved

determinations of native title made under the law of this State

or of the Commonwealth and any other matters relating to native

title rights and interests that the Registrar-General considers

appropriate.

(2) The information referred to in subsection (1) may be recorded

in a manner and form that the Register-General considers

appropriate.180

Important as they are, these provisions also provide an

additional impetus for looking at native title from the

perspective of the general cadastral system in Australia. This

perspective may in turn lead us to the evaluation of the

native title regime in relation to the desired features and

principles of a sustainable cadastral system.

The types of rights a native title gives rise to are

determined in relation to the existence or otherwise of four

conditions: communal or group right, observance by customary

or traditional laws, connection with the land and recognition

180Real Property Act 1900 (NSW), s12C.52

by the common law of Australia.181 The requirement of group

right and customary law implies that individual ownership is

not permitted. Aborigines do not own the land but the land may

own them.182Thus in Commonwealth of Australia v Yarmirr (2001) 208 CLR

1, the plaintiffs claimed for ownership and exclusive

possession, occupation, use and enjoyment of an area of the

sea and sea bed.183 The Federal Court held, however, that their

connection with the area does not entitle them to ownership

and use to the exclusion of others.184 The Court also doubted

whether the protection of native tile included the right to

trade and alienation when it stated that ‘[t]he preservation

of rights under the Native Title Act was for the purpose of

satisfying personal, domestic or non-commercial communal

needs.’185Therefore, native title right does not seem to give

rise to proprietary rights.186Furthermore, an identifiable

community or group needs to show a substantial degree of

ancestral connection between the original native title holders

and the present community.187This naturally requires

identification of membership to the group, a very difficult

task.

181See Native Title Act 1993 (Cth), s 223.182Bradbrook et al, above n6,361.183Ibid 381.184Ibid.185Adrian Bradbrook, Susan MacCallum and Anthony Moore, Australian RealProperty Law (Lawbook Co., 4th ed, 2007),271.The commonest rightsrecognised are rights of hunting, gathering, or fishing. see NativeTitle Act 1993 (Cth), s 223(2).186See also Bradbrook et al, above n6, 364.187Ibid 380.

53

IV Implications of Shortcomings of the Australian Cadastral

System

In this part, I will analyse the repercussions of the

shortcomings of the Australian cadastral system described

before with regard to the desire to have a sustainable

cadastral system. From the institutional point of view, the

fact that the organisational arrangement is a bit fragmented

has some negative implications. As we know, the principle of

sustainability requires that the organisational and management

arrangements should be appropriate for the particular

jurisdiction. Indeed, a better integrated institutional

arrangement among the cadastre, land register, and surveying

and mapping institutions would have been more appropriate for

Australia. As Dowson and Sheppard precisely observed title

registration cannot be successfully established until the

cadastre has attained the requisite degree of accuracy and

completeness.188 Although this might have little significance

due to the large coverage of land under the Torrens system

nowadays, in principle this assertion still holds true.

Further, still considerable land is outside of the formal

system.

On the other hand, the failure to recognise Crown land and

native title has several implications with regard to the

requirements of a more genuine, inclusive and fully beneficial

cadastral system. With regard to latter, one crucial question

188Sir Dowson and V L O Sheppard, Land Registration (Her Majesty'sStationery Office, 1956), 46-47. See also Bennett, above n8,73.

54

is that of political participation of native title holders. As

we know, a sustainable cadastral system can only be realised

if there is a governmental and legislative framework which

fosters essential characteristics such as an inclusion and

participation in public decisions involving land.189This

includes land law making, execution of law and adjudication by

courts or semi -court entities. Some prominent people have

already emphasised the crucial role of politics such as Noel

Pearson, an Aboriginal land rights activist, and Dawson J in

his dissenting view in the Mabo case.190 Tehan, on her part,

noted:

The political possibilities and challenges are significant as governments and other

parties consider whether to reopen consent determinations and

agreements, whether to return to the period of disregard and

denigration of indigenous laws and cultures or to sustain the

change.191

The problem also relates to the principles of completeness or

comprehensiveness, inclusion of all rights and legitimacy,

governance and justice, equality and respect for human rights

and freedoms. As we demonstrated previously, cadastral system

legislation needs to strictly comply with these principles to

support sustainable cadastral systems.192The principle of

comprehensiveness necessitates that the cadastral system law

should address all matters pertaining to the cadastral system,189See Pt II (A).190Tehan, above n175, 571 (citations omitted); Tehan and Godden,above n168, 20-21.191Tehan, above n175, 571 (emphasis added).192See generally Pt II.

55

goal or objective.193 This further implies that the function or

purpose intended by the law should be able to meet the

property interest of all community members in a certain

jurisdiction. Most importantly, it refers to the situation

where all land in the jurisdiction is included within the

registered title system. In this connection, Park noted that

‘any move towards expanding the register to provide the basis

for a comprehensive land information system will necessarily

require amendment to permit the inclusion of all land

including Crown land.’194The principle of governance and

justice necessitates, among other things, that the government

has to have legislation and enforcement mechanisms which treat

the society on an equal and just manner with regard to their

property rights or interests. The principle of equality and

non-discrimination195 and respect for human rights and freedoms

dictate that property rights being human rights and freedoms

need recognition for all persons without any discrimination

whatsoever.196

193See Pt II (D)(1). 194Park, above n4,109.. 195Aboriginal and Torres Strait Islander Social Justice Commissioner,Native Title Report: July 1996-June 1997,7 cited in Tehan, above n175, 556.Maureen also observed that native title was a subordinate right andthat this appeared to conflict with the requirement of non-discrimination and the goal of substantive equality. No wonder,Bartlett described this as the 'specific disapplication of theprotection of the Racial Discrimination Act[1975'.Richard Bartlett, Native Titlein Australia (2000) 53 quoted in Tehan, above n175,556. (emphasis inoriginal).196At a global scale, various international instruments have beenadopted to promote the land and other rights of indigenous peoplesof the world. These include the 1989 International LabourOrganization Convention No. 169 concerning Indigenous and Tribal

56

It is also not appropriate to limit native tile right to

certain passive or static categories of uses to the exclusion

of individual ownership and land transfer. It does not make

much sense to say that property rights could be registered in

some communities while it is not possible to do so in other

communities simply because they are different in geographical

location or other parameters as compared to the other

communities.197 If seen correctly, basic human needs are

similar wherever and whenever. Native tile needs to get the

necessary public support for its evolution in order to get

away from its freezing zone of communal title and to be

integrated to the formal system. With the necessary support

from the state such as through enhancing awareness and

education, the way society is accessing and using land will

increasingly change thereby adapting to new circumstances. In

all places and cultures, communities actually want much more

secure land transactions, much more access to

collateralization of their land in return for borrowed money,

Peoples in Independent Countries (ILO Convention 169), the 2007United Nations Declaration on the Rights of Indigenous Peoples(DRIP) and the 2008 Draft American Declaration on the Rights ofIndigenous Peoples. For a comprehensive discussion of theseinstruments and other relevant international instruments whichimpose duties on states including Australia see generally GaetanoPentassuglia, 'Towards a Jurisprudential Articulation of IndigenousLand Rights' (2011) 22 The European Journal of International Law 165.197It has been usually held that customary tenure does not fit withmodern cadastral systems and hence need not be registered. See egStig Enemark, 'Building Land Information Policies' (Paper presentedat UN, FIG, PC IDEA Inter-Regional Special Forum on the Building ofLand Information Policies in the Americas, Aguascalientes, Mexico,26-27 October 2004),5; Joireman, above n40,48; Dalrymple, aboven31,98,100, 117.

57

much more security, investment and increased productivity,

etc. Above all, they increasingly need public support to

preserve their precious resource, their only basis of

livelihood. They need a cadastral system legislation that

takes into account these demands.

Lastly, it is also essential to recall the various advantages

and functions of a cadastral system at the broader scale.198In

this sense, it is really necessary to manage native title in a

manner it enhances all or most of those benefits across the

whole sections of society.

In conclusion, it is necessary that the Australian cadastral

system considers better integration of the physical or

organisational structure of the different wings of land

administration. Besides, it is important that the cadastral

system urgently improves the integration of rights relating to

both Crown land and Native title land. Needless to say,

legislation should be modified to harness these necessary

developments. These measures would better facilitate the

effectiveness of the system in line with the essential

requirements of a sustainable cadastral system in a manner

that ultimately benefits all Australians.

198See above n26.58

V Conclusion

Cadastral system legislation in Australia provides for a title

by registration system famously known as Torrens registration.

This paper has assessed the system in relation to selected

principles which are critically important for having a

sustainable cadastral system. The principles relate to

generally three themes: governance and political factors,

institutional and enforcement factors, recognition or

integration of various land rights, restrictions and

responsibilities especially customary rights, and other

principles derived from cadastral system literature and legal

theory. The paper has discovered that the Australian cadastral

system is founded on good political and governance culture due

especially to the settled practice of democratic values. It

has further discovered that the institutional and enforcement

apparatus is very efficient as illustrated by the Victorian

Torrens statute which provides detailed procedures of

application for land registration and quality assurance tools—

caveats, updating and compensation. Further, it has been seen

that the system provides for the various land interests in

great detail from freehold to many lesser interests and

rights. However, the author has discovered that the Australian

cadastral system has limitations with regard to running the

system in a more sustainable, efficient and beneficial way.

First, the function of the cadastral system is limited to the

land market. Second, the institutional organisation still

shows some degree of fragmentation. Third, the system does not

integrate public lands and most importantly the lands of the

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indigenous communities to the mainstream cadastral system. The

implication of these shortcomings has been found to be

significantly compromising the sustainability of the

Australian cadastral system.

Melkamu B. Moges

Email:[email protected]

Mob.0414338610

Melkamu graduated with a Bachelor of Laws in 2003 at Addis

Ababa University, Ethiopia, and in 2008 with an MSc in Land

Management at the Royal Institute of Technology (KTH), Sweden.

He founded the Ethiopian Land Administration Professionals

Association in 2009. He was a lecturer of Law and Land

Management in Bahir Dar University from 2003 to 2011. He also

worked as licensed legal practitioner from 2009 to 2011 in

Ethiopia especially on real property. As of August 2011, he

has joined Melbourne University Law School for a PhD course

which he is nearly finishing. At Melbourne, Melkamu has also

completed a Graduate Certificate on Advanced Learning and

Leadership and is a founding affiliate member of the Melbourne

School of Government Doctoral Academy.

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