Native Title And Personal Property Securities Act: An Overview

Nature of Native Title

1.Critically discuss the distinction between the exercise of property rights and the notion of native title as a “bundle of rights” in relation to the extinguishment of native title?

2.Advise Woolly of its legal position in relation to Nifty Bank, You Beaut Harvesters ?

1. Native title was given due recognition by common law in the year of 1992 during the landmark case of Mabo v Queensland[1]. The case could not give a proper title and a fitting conclusion to the nature of native title. Many names have been given to the native title, such as, proprietary, usufructuary, sui generis and so on and so forth. It also has the name of propreitory, possessory to include a “bundle of rights”. The name has been given as bundle of rights because there are varied names that are associated with native title. There was a judicial divergence on the nature of rights the native title conferred. Native title is indigenous titles that are associated with age old traditions. The other conflicting take on the right conferred by native title is proprietary which can be equated with common law rights. The judges in the case of Mabo held that the best way to recognize the rights conferred by native title is to confirm the title with the existing traditional common law rights. In the wordings of Brennan, it can be said that equating native title with property rights is the best way to understand the implications of the native title. He said that in cases of native titles, the lands are held by the natives and individual members of the community[2]. These members have total ownership over the land and they exert all the right over the property. Therefore, anyone who is in charge of a property is the proprietor. The proprietor has an interest over the land and therefore it can be said that the nature of that interest is proprietary. Delgamuukw v British Columbia[3], in this case, it was held that native title accords proprietary rights to the aboriginals and when it comes to classifying rights, proprietary rights hold the highest degree of value because they can be put above personal rights. Another way to interpret native title rights is to look at it from two angles-external and internal[4]. While looking at the rights conferred by native title externally, it can be seen as the relation that the natives exert on the community. When they are seen internally, it can be seen to have varying rights which can be established by evidence. The proper remedy established by evidence can be proprietary, personal or usufructuary.

Judicial Divergence on the Rights conferred by Native Title

The potentiality of flexibility of the rights is that while trying to effectuate remedy, the rights can play the role of being personal, usufructuary or proprietary. The classification whether native title can confer a “bundle of rights” can be considered possible. Bundle of rights means a varying range of rights which confer rights of different nature. Therefore, the classification of native title as “bundle of rights” to confer personal, usufructuary and property rights can be said to be a possibility. Ward v Western Australia[5] was the first case to take the bundle of rights approach. This view was again upheld in the case of Fejo v Northern Territory[6] where it was held that an exclusive interest in the property confers not only proprietary but also personal rights. An appeal was made to the decision of Ward v Western Australia[7], where it was said that the “bundle of rights” approach is a cogent approach. The important aspect of taking the bundle of rights approach is to ensure that even in a modernized world, the indigenous people can rely on the Indigenous system of law that tries to preserve traditions and customs. Therefore, bundle of rights can be said to be giving a higher degree of rights and does away with the requirement of understanding ever right in the bundle with relation to customs and traditions.

2. The Personal Property Securities Act deals with security interests of personal property. Other than real estate all properties form part of The Personal Property Securities Act. A security interest that forms a major part of The Personal Property Securities Act can be defined as an interest in personal property that helps in securing the payment of a debt or any other obligation which is without any regard to the form of the transaction[8]. For getting the benefit of security interest the security has to be attached to collateral and only then will the interest be said to be enforced against the grantor. The Personal Property Securities Register is a register maintained by the Government which is electronic. All the security interests in relation to The Personal Property Securities Act are maintained by this register. Registering with the PPSR will give a benefit to the creditor and also a better chance to recover the debt in case the debtor fails. Section 66 of The Personal Property Securities Act says that in cases when the creditor has not registered a security interest and the debtor turns bankrupt, the secured creditors will be given priority.

Bundle of Rights and Native Title

Personal Property Securities Act 2009 (Cth) aims to harmonise the interest of the investors and tries to bring more security for new and different types of assets[9].

Section 1.9 of Personal Property Securities Act 2009 talks about PPS lease and gives out the details regarding which can be included in the lease. A PPS lease can be defined as a lease or bailment of goods for a term exceeding one year. In this case, the lease entered between Woolly Cottons and You Beat Harvesters is for a period of 3 years and therefore is g=covered by the lease definition of the Act.

In the present case, Woolly Cotton Ltd operates as a cotton farm in the Goondiwindi district and therefore is concerned with the daily business of harvesting and selling the crops for monetary benefits. Woolly Cotton tries to finance its business with the help of the credits from Nifty Bank. The agriline of credit is secured against all of Woolly’s current and future assets. Woolly in the year 2017 leased the combines with Beaut Harvesters under a 3 year lease. Both Beaut and Nifty have registered their interest on the PPSR. A security interest can be defined as an interest related to a personal property that helps in securing the payment of an obligation and also includes some categories of interest. A security interest attached to collateral can only be tenable in court of law for any action against non payment or late payment. In cases when the creditor receives any payment of debt owing to a debtor s=through a debtor initiated payment, in that case, he will have priority over the security interest. Section 69-72 deals with the priority of creditors and also the purchase of negotiable instruments[10]. A debtor initiated payment has more value than any security interest in the funds paid and also in cases of intangible source of the payment like payment through bank account, the creditor will get more priority. Therefore in cases of interest acquired through negotiable instrument by a transaction which is consensual, the priority will be given to the negotiable instrument over the perfected security interest. This will only apply if the person has given value for the instrument and the person had acquired the interest through knowledge and prior idea about the instrument. Section 73-77[11] talks about giving priority to other interests that is, more priority shall be given to an interest that is arising due to this Act, of rule of law, equity etc. Section 83-86[12] talks about security interests in crops and states that the security interests arise in crops while they are growing and also after they are cut or are separated from the soil. An interest in the crops shall not be affected by any future sale, lease or mortgage and any impediment on the land on which the crops are growing.  A security interest will also not affect the rights of a lessor or a mortgagee of land if it is seen that the rights were existing when the security interest was created.

Applying the provisions of the Personal Property Securities Act 2009 (Cth), liabilities of Nifty Bank, You Beaut Harvesters Pty Ltd, Jaspers and McKendricks can be assessed. The aim of the Act is to secure the rights of the investors and also ensure that security interests in terms of new assets are protected. Keeping in mind the intention of this Act it can be said that there was no intention to breach the terms of the agreement. There was no written contract entered between Tom and Jasper. The agreement was a verbal one and the confirmation was achieved via Twitter, therefore it can be said that Jasper had full knowledge of the terms. Due to the sharp downturn in cotton sales, it has been difficult for Woolly to meet the loan. Nifty and Beaut have registered their securities with the PPSR. Therefore, the claims of creditors are secure as they have registered themselves with the PPSR. The Register protects the creditor in case a debtor has failed to repay the debts. Therefore, going by the provisions of the Personal Property Securities Act 2009 (Cth), the claims of the creditors are secured and Jasper has entered into a contract via twitter therefore it can be said that he had all the knowledge regarding the terms of the agreement.

References

Cases

 Delgamuukw v British Columbia [1988] I CNLR 14 at 113 (SC (Can)).

  Fejo v Northern Territory (1998) 195 CLR 96 at 151.

  Mabo v Queensland (No2) (1992) 175 CLR; 107 ALR 1.

  Mabo v Queensland (No2) (1992) 175 CLR; 107 ALR 1.

  Ward v Western Australia (1998) 159 ALR 483 (Lee J).

  Ward v Western Australia (1998) 159 ALR 483 (Lee J).

Statute

  Personal Property Securities Act 2009 (Cth).

  Online

 https://www5.austlii.edu.au/au/journals/MurUEJL/2002/32.html.