Erna Evita lived alone on a block of land called "Banksia Bounty" located close to the coast in south-western Victoria. In her father's will he had granted her a life estate in "Banksia Bounty" and granted the remainder to her niece, Zora Poli. Erna was an avid potter and turned a little cabin on the far end of the property into her own little pottery studio. She purchased a pottery wheel for making ceramic goods such as cups and vases. She also purchased a kiln to fire the ceramic wares she made. The pottery wheel was designed to be free standing. The wheel sat on three legs and had a foot pedal attached by a cord, as well as power cord that could be plugged into a power source. The kiln similarly was designed to be free standing. It had four legs and a cord that could be plugged into a power source. Erna installed the wheel and the kiln in her pottery studio. Every time she tried to use the wheel it wobbled around. She therefore called the local handy-man to come and asked him to attach the wheel to the ground to stop it wobbling around when she tried to use it. The handy-man attached the wheel to the ground by attaching each of the legs to a wooden block. He then drilled eight holes into the concrete floor and used two hammer-set concrete fasteners to connect each wooden blocks to the concrete floor. While he was there, he asked Erna whether he should also attach the kiln to the floor in a similar fashion. Erna explained that she might need to upgrade the kiln in the future and get one with larger capacity. The handy-man confirmed that it would be possible to detach the wooden blocks from the floor and the wooden blocks from the kiln in a way that would not cause serious damage to either the floor or the kiln. He added that the same ease of detachment applied in relation to the wheel. Erna gave the go-ahead and the handy-man attached the kiln to the floor by attaching each of the legs to a wooden block which was attached to the floor in the same way. In early 2000 Erna received news that her half-sister, who lived in the Netherlands, was gravely ill. She immediately dropped everything, bought a ticket, hopped on a plane to care for and nurse her sister. After her half-sister died about half a year later, Erna remained in the Netherlands, developing her pottery skills and generally enjoying life, neglecting to make any enquiries about her previous home. She lived blissfully happy and ignorant of anything happening back in Australia, until she died on 1 June 2020. Her will granted all her property, personal and real to her son, Iago Maksim. While Erna was gone, her neighbour Gustaf Caradog noticed that the fence between their two blocks of land had completely collapsed. Gustaf was frustrated that he couldn't contact Erna to split the cost of redoing the fence, but eventually decided he would fix it himself. In June 2002 he used a GPS to map out where the boundary between their properties should be and was surprised to see that it was about one metre further into Erna's block than the old fence had been. He created a new fence along this new boundary, by digging in timber fence poles every 1.8 metres and attaching wire fence netting between these poles. After he finished, he was exhausted but was delighted he now had a slightly larger property. He planned to turn the additional 1 metre of land on his side of the fence into a bee corridor, planting various native plants and flowering plants that would be attractive to bees and other insects. However, although Gustaf did not realise, his GPS was falsely calibrated, and he had therefore he had inadvertently moved the fence line one metre into Erna's property "Banksia Bounty". While on holiday in 2010 Takako Amondi noticed that the house on the property "Banksia Bounty" appeared to look empty and unkept. After observing the house for a period of time she noticed that the letter box never seemed to be emptied and that the bins were never put out. After a few months of observation, she ventured onto the block and explored the property. Two months later, in January 2011, Takako again entered the property. She changed the locks on the main house and made some small repairs, including replacing a broken window and replacing some cracked weatherboards. A month later she moved her furniture into the property and started living there. Over the next three years she made substantial improvements to the property installing new kitchen cabinets and appliances and painting the interior and exterior of the building. She loved exploring the somewhat wild and overgrown garden at "Banksia Bounty". A close friend, Dyson Abdullo come to visit one weekend in early 2012. He was a potter and was therefore delighted to see little cabin on the far end of the property which had been turned into a pottery studio. He tested out the wheel and was amazed to see that it and the kiln still worked. Takako offered to rent the studio space to Dyson for a nominal amount so he could use it for his pottery. He was delighted and immediately accepted her offer. From then on, he would spend almost every weekend in the studio, sleeping there at night on a fold out bed and spending all day Saturday and Sunday doing his pottery. Question 1: Can Iago remove the Erna's pottery kiln and pottery wheel from "Banksia Bounty"

Question 2: Can Gustaf be forced to move his fence back a metre, and can Takako be ejected from the land at the present moment (September 2023), and if so, by whom?

One of the reasons why Dyson Abdullo loved spending his weekends in the pottery studio at "Banksia Bounty" was because he is a member of the Wada Wada people, who traditionally occupied the coastal land in south-western Victoria, including the land that "Bankia Bounty" was located on. Dyson had spent relatively little time on the traditional lands of the Wada Wada people, but had grown up hearing stories from his great-grandmother, about Wada Wada dreamtime stories and about Wada Wada traditional customs. His great-grandmother told Dyson stories of how she had grown up on this coastal country, how she and her family used to gather various shellfish in the rockpools on the coast, including pipis, scallops, mussels, oysters and squirters. She also told him that adult members of the community used to go fishing in wooden canoes to catch various fish, squid and octopus. Dyson's great-grandmother explained that all the neighbouring Indigenous communities knew this was Wada Wada land and that they could not enter onto Wada Wada land without permission. If anyone would try and come onto the Wada Wada land without permission, they would be immediately sent away. Dyson's great-grandmother also explained how the Wada Wada used to perform traditional ceremonies to honour and celebrate the tides, and that these ceremonies had to be performed every month on the full moon. She explained how under the traditional laws and customs of the Wada Wada people they had obligations to care for the country, the beaches, the waterways and oceans and the animals that lived on those lands and in those waters. Once Dyson was old enough to understand, his great-grandmother, who was a recognised elder of the Wada Wada people, also told him distressing stories about the violence of colonisation. She told him how when she was a little girl, she and her family were forced to leave their traditional lands and were forced to live on a mission over 200 kilometres away. At the mission it was strictly prohibited that they speak in their traditional language or practice any of their traditional customs. However, she told him with a cheeky smile, that every full moon all the Wada Wada people on the mission would secretly gather at night to perform their traditional ceremonies. She told him, that until this day, she continued to meet with other members of the Wada Wada community every full moon to perform these ceremonies and invited him to join her. Dyson now comes to you for advice on whether his great-grandmother, on behalf of the Wada Wada people could claim native title rights over coastal land in south-western Victoria that was the traditional lands of the Wada Wada people. He is also seeking advice about how those native title rights might have been impacted by conflicting land uses, including property interests in "Banksia Bloom" and the surrounding houses. Further in the hills there were also four sheep farms that each held a pastoral lease granted by the Victorian government almost 99 years ago pursuant to the Grazing Leases Act 1879 (Vic), which gave them right to graze animals. Finally, during the 1938-39 "Black Friday" bushfires, the Victorian Government passed the Fire Emergency Defence Act 1938 (Vic) which allowed the Victorian Minister for Emergency Management to make orders which allowed fire fighters to take possession of any land that was within 100 kilometers of an active fire and which contained a dam, creek or other waterway for up to two months. The Act also empowered the Minister to authorise fire fighters to use such land in any way or do whatever in relation to the land that a person having an unencumbered interest in fee simple in the land would be entitled to do by virtue of that interest. During December 1938 two orders were made by the Minster for Emergency Management pursuant to the Fire Emergency Defence Act 1938 (Vic) over two of the sheep farms in this area. The orders were in effect for a period of two months.

Question 3: Provide Dyson with advice on whether his great-grandmother can claim native title rights over the relevant coastal land in south-western Victoria, including over "Banksia Bounty" and surrounding properties, the four nearby sheep farms including the two sheep farms over which orders under the Fire Emergency Defence Act 1938 (Vic) had been made. Make sure to explain your answer fully.

The Grazing Lease Act 1879 (Vic) and the Fire Emergency Defence Act 1938 (Vic) are entirely fictional, as are the Wada Wada people and all other facts of this assessment problem. Please disregard any actual legislation not covered in class which may be applicable to the facts of this assessment question.

Answer rating: 100% (QA)

Answer Question 1 Can Iago remove the Ernas pottery kiln and pottery wheel from Banksia Bounty As the heir of Erna Evita Iago Maksim would have the legal authority to manage her property including rem... View the full answer