Week 2 - Native Title . Mabo v Queensland (No 2) [1992] HCA 23: when the fleet came to Aus, the lands of the colonies was just NSW became part of the Crowns title, now the basis for that is the Aus were essentially Terra Nullius (land belong to no one). It was assumed it was TN, then acquired by the country that had arrived. The land of Australia was not Terra Nullius There was a system of laws and customs relating to land Native Title rights should be recognised by the common law Altered the doctrine of tenure o "in discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principles which gives the body of law its shape and internal consistency. Australia law is not only the historical successor of, but it an organic development from, the law of England." "it is far too late in the day to contemplate an allodial or other system of land ownership. Land in Australia which has been granted by the Crown is held on a tenure of some kind and the titles acquired under the accepted land law cannot be disturbed" - Brennan J Radical Title Section 223 Native Title Act 1993 (Qld) . McHugh J said in Yarmirr v Northern Territory (2001) 208 CLR 1; (at [212]): . ... Radical title was the device that the common law adopted to reconcile the theory of tenure and native title when the Crown acquired sovereignty of a settled country. It was the invention of 19th-century judges confronted with the reality of indigenous persons occupying land over which - according to the orthodox common law view - they had no rights against the Crown. So the judges invented the notion of a radical title burdened with the rights and interests that indigenous people possessed under their traditional laws and customs. Radical title in a native title setting serves the same purpose as the fiction of the grant of an estate does in the case of the fee simple in England. If the Crown claims title to land, that fiction requires the Crown to prove its title. Historically it did so by an inquest of office or an information of intrusion. . See also Brennan J's Judgment in Mabo at paragraphs [48]-[51] . Its lesser interest the Crown has · S 223(1)(a), (b) and (c) NTA sets out 3 elements to claim native title
Commonwealth Consolidated Acts About C? 1 Type Legs Jurisdiction Commonwealth Database Commonwealth Consolid ... Legislation Native Title Act 1993 Section SECT 223 NATIVE TITLE ACT 1993 - SECT 223 Native title NATIVE TITLE ACT 1993 - SECT 223 Native title Common law rights and interests (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation