Abstract
This article analyses the temporal effects of title registration and their relationship to race. It traces the move away from the retrospection of pre-registry common law conveyancing and toward the dynamic, future-oriented Torrens title registration system. The Torrens system, developed in early colonial Australia, enabled the production of ‘clean’, fresh titles that were independent of their predecessors. Through a process praised by legal commentators for ‘curing’ titles of their pasts, this system produces indefeasible titles behind its distinctive ‘curtain’ and ‘mirror’, which function similarly to magicians’ smoke and mirrors by blocking particular realities from view. In the case of title registries, those realities are particular histories of and relationships with land, which will not be protected by property law and are thus made precarious. Building on interdisciplinary work which theorises time as a social tool, I argue that Torrens title registration produces a temporal order which enables land market coordination by rendering some relationships with land temporary and making others indefeasible. This ordering of relationships with land in turn has consequences for the human subjects who have those relationships, cutting futures short for some and guaranteeing permanence to others. Engaging with Renisa Mawani and other critical race theorists, I argue that the categories produced by Torrens title registration systems materialise as race.
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Notes
Fowley Marine v Gafford (1968) 1 All ER 979, CA.
The length of time has varied according to what is set by the Statute of Limitations. Currently the period is 12 years for unregistered land in England and Wales (Limitation Act 1980 s15). For registered land the doctrine of adverse possession is now governed by the statutory scheme set out in the Land Registration Act 2002.
Though note that the ‘radical title’ of the Crown is not the same as full beneficial ownership (Mabo v Qld (No 2) (1992) 175 CLR 1).
See Davies (2007, pp. 88–90).
According to HM Land Registry, most unregistered land in England and Wales today is ‘most likely to be owned by the Crown, the aristocracy or the Church’: Land Registry Blog, ‘Registered or unregistered land, that is the question’ 22 January 2014 http://blog.landregistry.gov.uk/registered-unregistered-land-that-is-the-question/#sthash.9hrKQhlO.dpuf (accessed 29 January 2016).
Law of Property Act 1969 s23.
Emphasis in original.
The state would indemnify all registered title holders, undertaking to pay compensation if the operation of the register caused a loss: Simpson (1976), p. 175.
London solicitor Robert Wilson asked, ‘Why is it so difficult to transfer the interest called a freehold, when it is so easy to transfer the equally real and permanent interest called a share in a railway company?… [T]he purchaser of a railway share finds the title to it already posted up to the day, and not left 60 years in arrear as the title to land is’ (Wilson 1950 in Simpson 1976, p. 41).
Report of the Commissioners on the Registration of Title with reference to the Sale and Transfer of Land (CP 2215, 1857—session 2) para XL. Cited in Gray and Gray 2009, p. 187.
This has been the case since the Land Registration Act 1986 s2(1).
The Representation of the People Act 1832 was the first of multiple Acts extending the franchise to eventually make it independent of land ownership.
The establishment of the colony of South Australia was influenced by the lobbying of Edward Gibbon Wakefield, who proposed that the sale of land ‘at a reasonable price’ rather than very cheaply or free as land in other British colonies had been dealt with, would both pay for the costs of establishing the colony and ensure a constant supply of cheap labour, as not everyone would be able to afford their own land: Moss 1985, pp. 4–9.
(1971) 126 CLR 376: 381.
If the legal basis of title is the register rather than possession, it does not make sense for title to be obtainable through adverse possession. Torrens jurisdictions have found different ways of modifying the common law principles of adverse possession to accommodate it within the system of title registration (for example O’Connor 2006), but it is clear that registered title is more absolute than relative (it is arguable that relativity of title still exists to some degree under the Torrens system because it allows for different kinds of title to exist in one estate).
Estates Gazette, 15 October 1859, p. 314, cited in Rogers (2006, p. 128).
Ownership is not a concept most Indigenous Australians tend to use to describe their relationship with land (Black 2011; Watson 2002). I use the term Indigenous ownership for the purposes of this article as it is the closest rendering that a proprietal reading of that relationship can make. It is a strong and constitutive relationship, in some ways commensurable with exclusive possession, but also exceeding the idea of a common law estate, in part because that relationship is not restricted to being a ‘slice of time’ in the land (ibid).
Mabo v Queensland (No 2) (1992) 175 CLR 1.
The debate over ‘immediate’ and ‘deferred’ indefeasibility is limited to whether a fraudulent entry on the register becomes indefeasible on the initial or a subsequent entry: O’Connor (2009).
A recent case study of the state of New South Wales for example shows that home ownership in Indigenous households was significantly lower than the ownership rate among all households (Crabtree et al. 2015, p. 23).
While common law courts have ‘recognised’ pre-colonial Indigenous connections with land and constructed sui generis forms of title for it, these forms of recognition-based title do not fully encapsulate the Indigenous connection with land or comply with the relevant Indigenous law (Coulthard 2014; Watson 2002), and have been critiqued for locating Indigenous law and culture in the past rather than the present (Kerruish and Purdy 1998; Keenan 2014). The common law formula for native and Aboriginal titles is that they are inalienable titles constituted through historical (indeed, pre-colonial) connections with land, meaning they do not fit with the Torrens system. While the recognition of native and Aboriginal titles—and of treaty and reserve land—has political and practical benefits for some Indigenous people, these titles do not interrupt the Torrens system—they are either modified to allow for their assimilation into the Torrens register, or they exist outside of it (Bankes et al 2014; Secher 2000; Thomas et al 2013).
Scott v South Pacific Mortgages Ltd and others [2014] UKSC 52.
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Acknowledgments
Enormous thanks to the careful reading, feedback and support I have received in writing this paper. Particular thanks to Nadine El-Enany for detailed comments on several drafts. Also to Emily Grabham, Nick Piska, Katie Cruz, Renisa Mawani, Shelley Bielefeld, Shiri Pasternak, Lucy Finchett-Maddock and anonymous reviewers for comments on earlier drafts. All errors are mine alone.
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Keenan, S. Smoke, Curtains and Mirrors: The Production of Race Through Time and Title Registration. Law Critique 28, 87–108 (2017). https://doi.org/10.1007/s10978-016-9194-z
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DOI: https://doi.org/10.1007/s10978-016-9194-z