1993_04_april_mabobox

Before white settlement Australian was terra nullius, meaning vacant land, because Aborigines did not have cultivation or an organised system of custom and law.

Upon white settlement the whole of Australia came under the sovereignty of the Crown.

That on legal principles laid down in the 18th century, terra nullius land taken by settlement vested in the Crown which had to sole right to hand out title.

Once granted to individuals, the land could not be taken back by the Crown without parliamentary approval (and compensation in the case of the Commonwealth).

The Crown retained the mineral rights, and could assign them to others on payment of a royalty.

Upon white settlement the whole of Australia came under the sovereignty of the Crown.

The common law says that native title survives the Crown’s acquisition of sovereignty.

However, sovereignty meant the Crown could take away native title as it pleased.

Native title could further be surrendered to the Crown by the indigenous group no longer acknowledging or practising indigenous custom, or by the death of the last members of the group, or by the group voluntarily surrendering the land.

Since Federation, the Commonwealth could not take away native title without paying compensation.

The states can take away native title as they please subject to Commonwealth law, in particular the Racial Discrimination Act.

Acts of government would not be enough in law to extinguish native title unless they were clearly inconsistent with it. For example, a national park would not be inconsistent, but the building of a government factory on the land would be.

In summary, the common law did not take away native title, rather is became extinguished through acts of government or acts of white settlers who caused the destruction of indigenous custom or death of Aboriginal groups.

The nature of native title in any given case depends upon the customary use of the land of that group. It might not, therefore extend to minerals if those minerals were not customarily used.

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