Posted on August 11, 2023
Indefeasibility is one of those words that few can spell, and even fewer understand. And yet, it is the bedrock upon which Australian property law rests, and the concept by which every landowner, whether they realise it or not, relies.
Indefeasibility means incapable of being undone or destroyed. When you purchase property, you are registered on the property’s title. The property law system which operates in Australia, the Torrens system, says that when you are registered you receive an indefeasible title – a title that cannot be undone or destroyed.
Indefeasibility is the reason you can live on your property uninterrupted, the reason you get to say who you want to sell your property to, the reason you get to use the property as collateral for a loan, and the reason you get to say to your children ‘my house, my rules’.
But in the legal world, indefeasibility means incapable of being destroyed except in certain circumstances. In Victoria, the Mineral Resources (Sustainable Development) Act 1990 (Vic) (the Act) states that while you may own your property, the Crown owns essentially all minerals, even if they are in the soil beneath your land. And so there is a tension between your ownership rights and that of the Crown.
As owner of the minerals, the Crown can under the Act, grant licences to mining companies to explore for and extract the minerals that it owns. The Act also provides that if the Crown grants such a licence, it must compensate you as an owner for certain losses and damages that have been or will be suffered by you because of the licence being granted. This compensation must cover things like:
- you being deprived of your property;
- damage caused to the surface of your land and any improvements made to your land;
- your inability to use your land and to continue to improve it;
- a decrease in the market value of your land; and
- if you are required to obtain replacement land, certain expenses associated with obtaining and moving to that land.
The compensation paid can also being increased by as much as 10% to compensate you for intangible and immeasurable costs. For farming families, this may include things like generational connections to land which are often huge and incapable of truly being recognised and compensated for in monetary terms.
As a lawyer with country roots, I understand that one’s connection to their land is not something which can simply be accounted for in a mathematical formula, and certainly not something to be ignored. I am passionate about helping farming families and landowners in ensuring that their interests are protected, and that they can walk away with the best outcome that can be achieved for them and their families.
If you or anyone you know owns property which is or is expected to become the subject of a mining licence, please do not hesitate to contact Sharelle Staff of Scanlan Carroll Lawyers on (03) 9853 0311. We would be happy to support you through this process.
Recent Articles
News Categories
