I INTRODUCTION

The Torrens system of land registration is founded on the principle of indefeasibility of title, whereby a registered proprietor obtains ownership that is protected from competing claims. While this doctrine provides certainty of land ownership, it does so rigidly within a legal framework established through the assertion of Crown sovereignty and the dispossession of Indigenous peoples from their traditional lands. As a result, tensions arise between the Torrens system's protection of registered title and Indigenous assertions of continuing connection to Country, sovereignty, and land rights. The case of Nyangbul v State of New South Wales [2025] NSWCA 119 provides a lens through which this tension can be critically examined through Postcolonial Theory and Critical Race Theory ('CRT'). While Postcolonialism explores the colonial foundations of Australian law through the displacement of Indigenous land ownership, CRT identifies how these colonial structures continue to operate through doctrines that, although appearing neutral, systematically exclude Indigenous claims. This raises the central question; whether the Torrens system can ever accommodate Indigenous sovereignty, or if indefeasibility will continue to structurally entrench settler-colonial ownership.

II CASE SUMMARY

The dispute arose over parcels of Crown land near Lennox Head, of which the State of New South Wales was the registered proprietor. The applicant, Jaabarun Nyangbul, occupied the land and established several structures without authorisation or consent. Following the applicant’s failure to remove the structures after several notices issued by the State, proceedings were commenced seeking a writ of possession. In New South Wales v Simpson [2025], the primary judge struck out the applicant’s defences and granted final judgment in favour of the State, including the issue of a writ of possession. Following this outcome, the applicant sought a stay of execution pending appeal, asserting a right to remain on the land based on Indigenous sovereignty and cultural connection to the land. However, the New South Wales Court of Appeal dismissed the motion seeking a stay.

III LEGAL REASONING

The dispute in Nyangbul highlights the State’s reliance on their registered title, reinforcing Crown-derived ownership as the dominant form of legal authority. The presiding judge, Griffiths AJA ,ruled that the applicant’s grounds of appeal based on Indigenous sovereignty fell against binding authority. Under the rulings of Coe v Commonwealth, the court relied heavily on the principle that Indigenous people do not have ‘legislative, executive or judicial organs by which sovereignty might be exercised’, meaning Indigenous sovereignty in itself couldn’t be recognised as a legally valid concept. The decision is further reinforced through the decision of Mabo (No 2), which explicates that rights belonging to native title exist within the framework of Crown sovereignty, and are therefore subordinate to the authority of the State. The courts utilised these decisions to conclude that such claims are ‘quite impossible in law to maintain’, removing any legal basis for asserting a competing system of sovereignty.

IV CRITICAL RACE THEORY AND FORMAL NEUTRALITY

Under the lens of CRT, exclusionary principles of the law are exposed through the ‘normalcy of whiteness’ in judicial decision making, which underpins the institutionalised racism of the legal system. The concept of ‘whiteness as property’, inclusive of the right of possession and the right of exclusion, is reflected through the Court’s rigid application of the doctrine of indefeasibility. Although the law appears formally neutral, its application ultimately ensures that colonial ownership is upheld whilst Indigenous claims are systematically excluded.

The applicant’s failure to overcome the State’s indefeasible title reflects the Torrens system’s core function of excluding claims based on prior title. The State’s ownership of the land is rendered legally unquestionable through the doctrine of indefeasibility, which protects the registered proprietor from interests incapable of recognition within the existing legal framework. In this way, the Torrens system privileges Crown-derived ownership as the recognised basis of title while limiting the ability of Indigenous sovereignty claims to operate within Australian property law.

V POSTCOLONIALISM AND INDIGENOUS SOVEREIGNTY

From a postcolonial perspective, the decision reinforces the reality that systems established through colonisation continue to dominate contemporary legal frameworks. Nothing in the Court’s reasoning was intended to dispute the sovereignty of the applicant as a First Nations person, however such recognition was confined to a ‘spiritual notion’ devoid of legal enforceability. This reflects a form of recognition that acknowledges Indigenous sovereignty symbolically while maintaining Crown sovereignty as the controlling legal authority. This reflects a form of controlled recognition; where acknowledging that their sovereignty ‘has never been ceded or extinguished’ yet co-exists with Crown sovereignty, reinforces colonial authority.

While the Court acknowledged the Bundjalung Nation’s custodianship as “entirely fitting”, such recognition was rendered legally ineffective because Indigenous claims fell outside enforceable doctrinal frameworks. Consistent with broader jurisprudence on Indigenous land rights, the decision reinforces the position that Indigenous sovereignty cannot operate independently within Australian law because Crown sovereignty remains legally dominant.

VI CONCLUSION

Ultimately, Nyangbul demonstrates how doctrines presented as neutral continue to privilege settler-colonial authority while marginalising Indigenous claims. Through both postcolonial and CRT perspectives, the tension between Torrens indefeasibility and Indigenous sovereignty reveals the limits of Australian property law in recognising Indigenous claims outside the framework of Crown sovereignty.

VII FOOTNOTES

Real Property Act (1900) s 42.

Nyangbul v State of New South Wales [2025] NSWCA 119 (‘Nyangbul’).

Coe v Commonwealth [1979] HCA 68; (1979) 53 ALJR 403, 408.

Ibid.

Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo (No 2)’).

Coe v Commonwealth [1979] HCA 68; (1979) 53 ALJR 403, 408.

Michelle Sanson and Thalia Anthony, Connecting with Law (Oxford University Press, 5th ed, 2022) 598.

Lorriz Anne Alvarado, ‘The Role of Critical Race Theory in Higher Education’ in Payne Hiraldo (ed), The Vermont Connection (University of Vermont, 2010) 54, 55.

Sanson and Anthony (n 7) 604.

Nyangbul [45].

Alpana Roy, ‘Postcolonial Theory and Law: A Critical Introduction’ (2008) 29(2) Adelaide Law Review 315, 355.

Nyangbul [47].

Nyangbul [28].