By Leighton Joyes
New Zealand and South Australia both stem from British heritage and they have both inherited the common law system and developed cadastral systems from this (Toms, Williiamson, & Grant, 1988). A cadastre can be defined as “a public register usually recording the area (and spatial location) of land parcels in a country or jurisdiction” (Toms, et al. 1988). Australia is a federation and operates separate cadastral systems in each state and territory. There is no prescribed organisational structure to these states, and land administration is a state government responsibility (Dalrymple, Williamson, & Wallace, 2003). The South Australia Act was passed in 1834, allowing the Crown to establish one or more colonies in the south-west of what was then New South Wales; however it wasn’t until 1836 that Australia became a political entity of Britain (Painter, 2012). Not long after, New Zealand became a British colony through the signing of the Treaty of Waitangi in 1840, which proclaimed British Sovereignty over the land.
The cadastres in New Zealand and Australia serve a similar primary function of issuing and tranfering title to land, as well as the registration of any interests relating to land (Cadastral Template, 2003). Having both developed from similar roots many similarities exist between the cadastral systems of New Zealand and South Australia, but as the individual countries have matured over years, and changes have occurred within Australia, so to have differences developed between the cadastral systems. This essay seeks to analyse the differences and similarities that exist between the cadastral systems of New Zealand and South Australia.
As both New Zealand and South Australia were settled by the British they both adopted a deeds registration system as their initial method of registering rights in land. The Deeds Registration System was based upon the common law rule that “No man could confer better title then he had” (Hinde, 1971). It was an expensive, time consuming, and complex system that required deeds to be registered, so that title could be derived. Due to the law that allowed only equal title to be passed on, should a previous deed be invalid for whatever reason, all subsequent dealings were also made invalid. In the mid 1850’s Robert Torrens, the Registrar-General of Deeds, introduced his system of land transfer to South Australia, which simplified the flawed system, and provided better security of title (Weir, 2007). The Torrens system was introduced into legal statute through the passing of the Real Property Act 1858 (SA). The other states followed suit, adopting this improved system, by passing of their own acts, as did New Zealand, when it passed the Land Transfer Act 1870. The most important principle of this new system was that registration provides title, and upon registration a registered owner of a fee simple title is granted an indefeasible title, providing the transfer was bona fide (Hinde, 1971). Whilst one of the purposes of the Real Property Act 1858 and the Land Transfer Act 1870 was to abolish the Deeds system, some small amounts of land owned under Deed exist in New Zealand and South Australia, these parcels are usually limited as to parcels or title, and in South Australia the refer to this as the “Old System”.
A majorhisorical difference between the developments of the cadastral systems in New Zealand and South Australia are the considerations given to native or aboriginal title. When the Treaty of Waitangi was signed in1840 Maori ownership of their land and properties was recognised. As a acknowledgment of Maoris relationship with the land, customary rights were provided for in the Treaty, which was later converted into Maori Freehold title through the Maori Land Court. However when...