...The Crown's power to extinguish...
Under the common law, native title can also be 'extinguished' by the Crown. Justice Brennan stated that 'Sovereignty carries with it the power to create and extinguish private rights and interests within the Sovereign territory' (Mabo v Queensland [No.2] (1992) 175 CLR 1, at p 63). This may occur through legislation, which shows a clear and plain intention of extinguishing native title, or through the making of a grant or reservation that is inconsistent with the continued enjoyment of native title. The law of the coloniser takes priority in this regard, and the rights and interests granted by the Crown once granted will not be taken away. Native title, because it is not granted by the Crown, was not given the same protection. So, to the extent of any inconsistency, the non-native title interests prevail.
Therefore, it has been said that dispossession did not occur when sovereignty was acquired but, 'parcel by parcel', by the 'recurrent exercise of a paramount power to exclude the Indigenous inhabitants from their traditional lands...'(pp 69, 58).
Many questions were left open by the Mabo decision concerning the scope and content of native title and, as Indigenous peoples and others test the limits and ambiguities of native title, a number of decisions have been made that further clarify the principles of native title in relation to, for example, concurrent interests, rights over the sea, the relationship between native title and freehold title and the question of revival of native title.
Keywords: Brennan, Justice Gerard, Common Law, crown land, dispossession, extinguishment, Mabo v Queensland No.2, sovereignty, 1992
Author: Strelein, Lisa