LECTURE NOTES WK 2: Native Title Historical and Political Context: Aus land pre Mabo: - Terra nullius - settled by virtue of land being desert and uncultivated; English law subject to needs particular to colony itself; concept of tenure (absolute and beneficial ownership resides in the Crown) a) The only type of title to land is by Crown grant (fees simple, lease) b) Land either granted or unallocated 'waste lands' c) Customary use/tenure not recognised [Mabo v Queensland (No 2) 1992 HCA 23 per Brennan J]: 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 principle which gives the body of our law its shape and internal consistency. Australian law is not only the historical successor of, but is an organic development from, the law of England. [29] 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. [49] Solution: radical title allows land to be encumbered by a valid native title interest The Crown was treated as having the radical title to all the land in the territory over which the Crown acquired sovereignty. The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty. As a sovereign enjoys supreme legal authority in and over a territory, the sovereign has power to prescribe what parcels of land and what interests in those parcels should be enjoyed by others and what parcels of land should be kept as the sovereign's beneficial demesne. [50] Sovereign still has power to prescribe what parcels of land and what interests in those parcels should be enjoyed by others but it is also potentially burdened by pre-existing rights in the form of native title rights Key Events: The Mabo decision, handed down on 3 June 1992 (common law native title) Native Title Act 1993 (Cth) commenced 1 January 1994 (s 223) Wik decision 1996 (extinguishment / Crown lease) · Fejo v NT 1998 - grant of fee simple Yanner v Eaton 1999 (legislation and hunting rights) Yarmirr decision 2001 (coastal waters) · Akiba 2010 Northern Territory v Griffith 2019 (compensation) Mabo Decision: . Murray Island had been annexed to Qld in 1979, passing of Qld's Coast Islands Declaratory Act 1985
· Legislation attempted to end proceedings being brought by Aboriginals by declaring that annexation of islands led to those islands by vested in the State of Qld freed from all other rights, interests and claims - no provision made to compensate Aboriginal people · 1982 plaintiffs institute action to protect islands. · Queensland Coast Islands Declaratory Act 1985 (Qld) enacted in response, which declared that, when islands were annexed to Qld in 1879, the