Recent discussion in relation to a mining exploration licence that had been granted in our area prompted a couple of questions relating to property ‘rights’ and land ownership more generally. This is a subject that is perhaps a little beyond the purview of local government but I thought it might be of interest nonetheless.
Land is often referred to as ‘real property’, which basically means property that is fixed and immovable—as distinct from personal property, which is basically property (as in goods and chattels) that is not fixed and can be moved. Further, Australian law recognises two basic types of land or ‘real property’ ownership—freehold title and Crown land—although land ownership is generally managed through State legislation. In NSW, all land ownership is administered by NSW Land Registry Services.
Freehold (also known as ‘fee simple’) land gives the landholder the most complete form of ownership of that land, in perpetuity. It allows the landholder to deal with the land, including selling, leasing, licensing or mortgaging the land, subject to compliance with applicable State or Territory legislation, such as that relating to planning or environmental protection.
Accounting for around half the land area in NSW, Crown land is essentially Government-owned land that has not been converted to freehold title.
The majority of ownership of freehold title in Australia is governed by a system of registration known as Torrens title, devised by Sir Robert Torrens in South Australia in 1858. Based on the principle of ‘Indefeasibility of Title’ (the title determines ownership), this is primarily a means of providing conclusive evidence of ownership, which had previously involved extended, often inconclusive, searches of historical document trails. This Torrents Title system is now used in many countries throughout the world.
Strata and Community Title arrangements are variations of Torrens Title devised for apartment blocks, horizontal subdivisions or neighbourhood style developments involving common or shared areas.
Just for completeness at this point, when Australia was first settled, there was no formal system for registering the ownership of land. As the colonies developed, they created registers and, eventually, a formal centralised system for registering ownership. There remain some properties, however, that are still not registered under this [Torrens] system and they are known as Old System title properties.
Native Title is a common law concept, applicable only to Crown land, that recognises that Aboriginal people have property rights and interests in land arising from traditional law and custom.
While many people are of the belief that they own their freehold land absolutely, including anything above or below it, following the Doctrine of Tenure the law in Australia holds that the Crown has absolute ownership, notwithstanding any native title claims. In general, an owner’s rights extend only as far as is necessary for the ordinary use and enjoyment of their land. While freehold title applies to the benefit of the owner in perpetuity, it is in essence a type of legal relationship landholders are granted with the permission of the Crown.
In particular, minerals, oil and gas are ‘reserved to the Crown’, which means Australian state governments retain the rights to these resources if they are found on freehold land (In any case, gold and silver have long been deemed to belong to the Crown as royal metals).
As such, the Crown has the right to grant a title to another, by way of a licence to carry out exploration activities, for example, allowing separate interests to be held over a single property. This duality of rights, however, does not mean that a licence holder has unfettered access to the subject land. It grants the licence holder exclusive rights to explore for petroleum or specific minerals within a designated area but it does not permit mining, nor does it offer any guarantee that a mining or production lease would ever be granted. Licence holders are also subject to a statutory prohibition on carrying out any activities within 200 metres of a residence without the consent of the land holder and resident.
The purpose of exploration is simply to locate areas where mineral or petroleum resources may be present, to establish the quality and quantity of those resources, and to investigate the viability of extracting the resource.
You will, however, rarely see a modern day prospector with a rock pick. Today’s prospectors are geologists who spend more time in front of computer screens, analysing data collected using sophisticated airborne sensors, than actually digging or drilling holes. It is these types of activities that are most likely to be carried out under the sorts of exploration licences that have been granted recently in our area. Apart from low flying aircraft, the associated activities will generally not even be noticed by most residents.