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Attorney-General v Brown [1847] NSWLeggeSC 2

Category: Case Law
Binomial Name: High Court of Australia
Sub Category:Case Law
State/Country:New South Wales, Australia
Legal Status:

Legal Reference: [1847] NSWLeggeSC 2; (1847) 1 Legge 312 (10 February 1847)
Subject Matter:Law - Policy and Justice
Summary Information:
The Attorney General (NSW) (Appellant) and Brown (Respondent) 

Judges: Stephen CJ, Dickson J and Therry J 

The High Court held that when the British declared sovereignty over Australia, all land automatically belonged to the British Crown.  

The case is relevant to the recognition of Aboriginal and Torres Strait Islander law by colonial courts.  
Detailed Information:

Brown was granted sixty acres of land by the Crown in 1840, with the condition that the Crown possessed the right to 'reserve' parts of the land; this included areas of stone, gravel, high water and mines of gold, silver and coal. This created an exception to the grant.

Following this grant, Brown discovered coal mines on this land. The Crown sought to use the exception to the grant to argue that the coal mines belonged to them. Brown argued that the Crown did not hold title or possession to the coal mines, and that without documentation, the Crown could not claim title over the coal mines.

Details of judgment

In the judgment delivered by the High Court, Stephen CJ held that unless land was granted to a subject, it was automatically vested in the Crown from the date of settlement of Australia.

Stephen CJ held that the Crown is the representative and executive authority of the nation and therefore has a direct right to occupancy of Australian land. Additionally, the British doctrine of tenures was used to justify the possession of the coal mines as the Crown owned all the land and 'there is no other proprietor of such lands' [319]. 

Subsequent developments

The doctrine of tenures was upheld in Australia and confirmed by the Privy Council in Cooper v Stuart (1889) 14 App Cas 286. 

The ongoing application of the doctrine of tenures resulted in Indigenous land rights claims being consistently rejected from the moment of British settlement until Mabo and Others v Queensland (No. 2), which changed the doctrine so that tenure could co-exist with native title.

Related Entries

  • State of New South Wales
  • People
  • Attorney General of New South Wales
  • Case Law
  • Mabo v Queensland [No 2] (1992) 175 CLR 1

  • Glossary

    Attorney General | Doctrine of Tenures

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