Ure v Commonwealth of Australia [2015] FCA 241

Ure v Commonwealth of Australia [2015] FCA 241

The Court found that allegations concerning whether the Commonwealth or any other State had not claimed or acquired jurisdiction, sovereignty, or sovereign rights over Elizabeth and Middleton Reefs prior to 19 March 1970 or thereafter are justiciable; the Court is not precluded from considering such allegations merely because of their pleading. However, under customary international law, there is no rule allowing private individuals to acquire proprietary interests in land (terra nullius) or obliging States to recognise pre-existing private property rights upon acquisition of sovereignty. The applicant’s claim for proprietary rights under international law fails as neither State practice...

Parties
Applicant: Doreen Margaret Ure; First Respondent: Commonwealth of Australia; Second Respondent: Director of National Parks
Jurisdiction
Australia
Judgment Date
17 March 2015
Procedural Posture
Special Case / Reserved Questions and Judgment
Outcome
Applicant’s claim dismissed
Legal Topics
Act of State Doctrine, Customary International Law, Acquisition of Sovereignty, Property Rights in International Law, Justiciability
Public International Law Act of State Doctrine Customary International Law Acquisition of Sovereignty Property Rights in International Law Justiciability

Case Brief

Summary, issues, holding and outcome

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Parties

Doreen Margaret Ure

Applicant

Commonwealth of Australia

First Respondent

Director of National Parks

Second Respondent

Procedural Posture

Special Case / Reserved Questions and Judgment

Legal Issues

  1. 1 Whether the question of acquisition or claim of jurisdiction or sovereignty over land is justiciable in an Australian court
  2. 2 Whether customary international law permits private parties to acquire proprietary interests in land
  3. 3 Whether a State is obliged by customary international law to recognise and give legal effect to private property rights

Ratio Decidendi

The Court found that allegations concerning whether the Commonwealth or any other State had not claimed or acquired jurisdiction, sovereignty, or sovereign rights over Elizabeth and Middleton Reefs prior to 19 March 1970 or thereafter are justiciable; the Court is not precluded from considering such allegations merely because of their pleading. However, under customary international law, there is no rule allowing private individuals to acquire proprietary interests in land (terra nullius) or obliging States to recognise pre-existing private property rights upon acquisition of sovereignty. The applicant’s claim for proprietary rights under international law fails as neither State practice...

Court Disposition

Applicant’s claim dismissed

Orders

  • The special case reserved questions answered as follows: (1) The justiciability question is answered affirmatively; (2) The question as to acquisition of proprietary rights by private individuals under international law is answered in the negative; (3) The claim is to be dismissed; (4) If parties cannot agree on...