Poynton, Peter --- "Mabo - Scire Facias : We've come for your Freehold - Terra Nullius as a Deceit upon the Crown" [1993] AboriginalLawB 22; (1993) 3(62) Aboriginal Law Bulletin 13

• Mabo-Scire Facias : We’ve Come For Your Freehold Terra Nullius As A Deceit Upon The Crown
• Endnotes:

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Mabo -

Scire Facias : We’ve come for your Freehold
Terra Nullius as a Deceit upon the Crown

by Peter Poynton

Scire facias is a prerogative procedure for the purpose of repealing or rescinding Crown grants.' The procedure is to issue a writ of Scire facias showing that the Crown has been 'deceived' or defrauded in making a grant of land or a lease over the interests of a third party as,

"All charters or grants of the Crown may be repealed or revoked when they are contrary to law, or uncertain, or injurious to the rights and interests of third parties.'2

A problem arose in a South Australian case in 1864 when the majority, against a superb argument about the specifics of colonial situations from Chief Justice Hanson, held that a Crown lease was not a Record of the court, as were land records in the Court of Chancery in England, and hence could not give rise to a writ of Scire facias processes. The Privy Council upheld the South Australian ruling, noting however that,

"If from the experience of the present case it should be thought desirable that the writ of Scire facias should be made available for the repeal of Crown grants, the Judges [of the South Australian Supreme Court] appear to have the power, under the Provincial Act 'for consolidating the several ordinances relating to the establishment of the Supreme Court', to promulgate a rule that the form and manner of proceedings in these cases be by Scire facias:'3
There is,
"a rule of common law by which a grant by the king which is wholly or in part inconsistent with a previous grant is held absolutely void unless the previous grant is recited in it. But the rule is qualified to this extent, that if the subject has no actual or constructive notice of the previous grant, the second grant will be good to the extent to which it may be consistent with the first grant though void as to the rest."4

In the Australian context the colonial policy of Terra Nullius counts as a 'deceit' upon the Crown,5 the monarch having been 'deceived' by the false suggestion that New South Wales was Terra Nullius; a fallacy steadily promulgated by colonial, state and national Australian administrations for 204 years. It is now recognized that so-called 'Vacant Crown Land' is not and never was truly 'vacant', there being traditional owners.

"Where [an interest] is granted to the prejudice of the subject, the King is of right to permit him upon his petition to use his (the Kings) name for the repeal of it in scire facias at the King's suit."6

The right to scire facias is allowed ex debito justitiae7 and the Attorney-General exercises the power of the Crown in this respect based upon a bona fide grievance.8

The honour of the crown - the conqueror – is at stake in this writ,

"we find in the old books, 'that the King hath the charge of the Commonwealth and therefore cannot intend his private business'."9

The honour of the King [and his Dominion governments] ought to be of more concern than mammon. 10

Brennan J. in Mabo v Qld, has raised the matter of the procedure of Scire facias, leaving open the possibility of annulling Crown Grants through:

"a proceeding by scire facias or otherwise, on the prosecution of the Crown itself.'12

But how will it stand against the indefeasibility of Torrens title? As it is a prerogative writ to annul a Crown grant it may be a further limiting factor on Torrens indefeasibility.13 If Brennan J. is to be taken seriously, and we see no reason why he ought not to be, Supreme Court judges may have a responsibility to alter practice directions and ordinances to reinstate the right of the citizenry to the procedure of Scire facias.

If the Supreme Courts can avail citizens of their right to the process of Scire facias by a few simple bench directions which they were given leave to promulgate in 1865, the summons might be issued against the Crown as leases over 'crown land' expire and revert to it, to force a recognition and restoration of Native Title or the payment of just compensation for its extinguishment.

If a Statute of Limitations runs, it runs from 3 June 1992, when indigenous people were alerted to their right to native title by the High Court, which had previously denied the same.14

Endnotes:

1. Halsbury's Law of England (4thEd.), Vol.1, p.375, para 279.

2. R v Hughes, (1865) LR1PC 81 at 87; [1867] SALawRp 17; (1867) 1 SALR 143 (Appendix).

3. Ibid., 93.

4. Vancouver v Vancouver Lumber Company [1911] UKLawRpAC 50; (1911), AC 711 at 724.

5. Eastern Archipelago Co v R [1853] EngR 46; (1853) 118 ER 452 at 462.

6. Eastern Archipelago Co v R (1853)118 ER 980 at 992

7. Ibid.,

8. Ibid., 998.

9. R v Eastern Archipelago Co, op.cit, at 465.

10. Ibid., 463.

11. Mabo v Qld (No.2)(1992)175 CLR 1.

12. Ibid., at 64.

13. As the Torrens System makes it that, "each freeholder is in the same position as a grantee direct from the Crown." R. Torrens, A handy book on the Real Property Act of South Australia, (1862) p.11, cited in Leros v Terara, (1992) 66 ALJR 398 at 403.

14. Coe v Commonwealth, [1979] HCA 68; (1979) 24 ALR 118 at 129.