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High Court of Australia |
MABO AND OTHERS v. QUEENSLAND (No. 2) (1992) 175 CLR 1
F.C. 92/014
Aborigines - Constitutional Law - Real Property
High Court of Australia
Mason C.J.(1), Brennan(2), Deane(3), Dawson(4), Toohey(5), Gaudron(3) and
McHugh(1) JJ.
CATCHWORDS
Aborigines - Native title to land - Whether extinguished by annexation by Crown - Reception of common law in Australia - Effect on native title - Terra nulius - Whether doctrine applicable in Australia.Constitutional Law (Q.) - Reception of common law in settled colony - Effect on title of indigenous people - Annexation of territory by colony - Terra nullius - Whether doctrine applicable in Australia - Power of Parliament of Qeensland to extinguish native title.
Real Property - Tenures and estates - Application on settlement of New South Wales - Effect on native title - Land over which native title exists - Whether Crown land - Land Act 1962 (Q.), s. 5 - "Crown land."
HEARING
Canberra, 1991, May 28-31; 1992, June 3. 3:6:1992DECISION
MASON C.J. AND McHUGH J. We agree with the reasons for judgment of Brennan J. and with the declaration which he proposes.
2. In the result, six members of the Court (Dawson J. dissenting) are in
agreement that the common law of this country recognizes
a form of native
title which, in the cases where it has not been extinguished, reflects the
entitlement of the indigenous inhabitants,
in accordance with their laws or
customs, to their traditional lands and that, subject to the effect of some
particular Crown leases,
the land entitlement of the Murray Islanders in
accordance with their laws or customs is preserved, as native title, under the
law
of Queensland. The main difference between those members of the Court who
constitute the majority is that, subject to the operation
from the Murray Islands. Later, Douglas, in a report
from the overturning.
from ownership of the land: the former can belong only to
from common law tenures. In
from exercise
from their traditional
use of Aboriginal Inhabitants of the State" generally(144)
from the mere
from sale left
use for administrative purposes
use are all but unknown(206) See, e.g., Amodu Tijani
from full ownership at common law. The preferable
use under the common law native title is explained by the common law's
from the practical point of view. The personal rights under the title were
from "any unnecessary
from the new
from the community as a whole or some larger section of it. It
from the time of annexation in 1879, any
use of the Aboriginal
from lands in Alaska over which the Tee-Hit-Ton Indians claimed Indian
from the whites to occupy. That description means mere
from legislative definition, understood long before
from the government.
from employment. To some extent
use of the aboriginal population was in the exercise of a benevolent
from occupancy before annexation, have
use and
from being exploited(484)
use of the aboriginal
from the grant(502) ss.334C, 334F and
use and enjoy the Murray Islands.
from that radical title.
from In re Southern Rhodesia noted earlier in this judgment and then heeded
from the vagaries of personal whim or influence. If ever
from the power in the Crown
from general property law.":
from which it
from that of an obligation arising as a result of particular
use of vacant Crown land."
from the present case significantly in that both the
from the plaintiffs' written submissions, be shown that such a possessory
from possession but which
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