Justice Brennan: Sovereignty and Extinguishment in Mabo
2
Mabo v Queensland (No. 2) (1992) 175 CLR 1 pp. 69-71
After this lengthy examination of the problem, it is desirable to state
in summary form what I hold to be the common law of Australia with reference
to land titles:
1. The Crown's acquisition of sovereignty over the several parts of Australia
cannot be challenged in an Australian municipal court.
2. On acquisition of sovereignty over a particular part of Australia,
the Crown acquired a radical title to the land in that part.
3. Native title to land survived the Crown's acquisition of sovereignty
and radical title. The rights and privileges conferred by native title
were unaffected by the Crown's acquisition of radical title but the acquisition
of sovereignty exposed native title to extinguishment by a valid exercise
of sovereign power inconsistent with the continued right to enjoy native
title.
4. Where the Crown has validly alienated land by granting an interest
that is wholly or partially inconsistent with a continuing right to enjoy
native title, native title is extinguishment to the extent of the inconsistency.
Thus native title has been extinguished by grants of estates of freehold
or of leases but not necessarily by the grant of lesser interests (eg
authorities to prospect for minerals).
5. Where the crown has validly and effectively appropriated land to itself
and the appropriation is wholly or partially inconsistent with a continuing
right to enjoy native title, native title is extinguished to the extent
of the inconsistency. Thus native title has been extinguished to parcels
of the waste lands of the Crown that have been validly appropriated for
use (whether by dedication, setting aside, reservation or other valid
means) and used for roads, railways, post offices and other permanent
public works which preclude the continuing concurrent enjoyment of native
title over the land (eg, land set aside as a national park).
6. Native title to particular land (whether classified by the common
law as proprietary, usufructuary or otherwise), its incidents and the
persons entitled thereto are ascertained according to the laws and customs
of the indigenous people who, by those laws and customs, have a connexion
with the land. It is immaterial that the laws and customs have undergone
some change since the Crown acquired sovereignty provided the general
nature of the connexion between the indigenous people and the land remains.
Membership of the indigenous people depends on biological descent from
the indigenous people and on mutual recognition of a particular person's
membership by that person and by the elders or other persons enjoying
traditional authority among those people.
7. Native title to an area of land which a clan or group is entitled
to enjoy under the laws and customs of an indigenous people is extinguished
if the clan or group, by ceasing to acknowledge those laws, and (so far
as practicable) observe those customs, loses its connexion with the land
or on the death of the last of the members of the group or clan.
8. Native title over any parcel of land can be surrendered to the Crown
voluntarily by all those clans or groups who, by the traditional laws
and customs of the indigenous people, have a relevant connexion with the
land but the rights and privileges conferred by native title are otherwise
inalienable to persons who are not members of the indigenous people to
whom alienation is permitted by the traditional laws and customs.
9. If native title to any parcel of the waste lands of the Crown is extinguished,
the Crown becomes the absolute beneficial owner.
These propositions leave for resolution by the general law the question
of the validity of any purported exercise by the Crown of the power to
alienate or to appropriate to itself waste lands of the Crown. In Queensland,
these powers are and at all material times have been exercisable by the
Executive government subject, in the case of the power of alienation,
to the statutes of the State in force from time to time. The power of
alienation and the power of appropriation vested in the Crown in right
of a State are also subject to the valid laws of the Commonwealth, including
the Racial Discrimination Act. Where a power has purportedly been
exercised as a prerogative power, the validity of the exercise depends
on the scope of the prerogative and the authority of the purported repository
in the particular case.
It remains to apply these principles to the Murray Islands and the Meriam
people.
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