Native Title Analysis

Decent Essays

between persons of different colour, race, national or ethnic origin so that one group enjoys a right to a lesser extent than a person from another then, by force of the commonwealth law they shall enjoy the right to same extent. The operation of the provision of the Act was summarised in passage from the joint judgement in Mabo (No1).
The decision saw an exponential increase in cultural and economic resurgence fundamentally oiled by the judgement. This case also established two basic principles for determining the existence of common law native title. Thus the ‘recognition’ of aboriginal people’s law and customs in relation to the determination , and its twin concept of ‘ extinguishment’ of common law native title. In response to the court …show more content…

The Native Title Act 1993 was legislated following the decision in Mabo (No2). The Act itself extinguished the colonial doctrine of Terra Nullius and instead established native title rights. Terra Nullius as the name suggests is a Roman law concept, which literally means ‘Land belonging to no one’. Brennan J in Mabo decision rejected the doctrine and its early derivative concepts of native title and essentially replaced it with aboriginal customs, traditions and laws which are recognised legally under Australian common law. The 1993Act provides a process through which the indigenous people can lodge an application to seek a determination of native title to their land. There were significant amendments to the Act, including the introduction of a registration test and indigenous Land Use Agreement. This mechanism allows the aboriginal people who assert that their traditional rights have not been extinguished, and also to validate retrospectively the land titles of the occupiers that may have been called into question by decisions. The judgement in Mabo (No2) depicted that until the decision, the Australian law was actually based upon the precept that with the acquisition of sovereignty ownership of all lands would become the Crown’s automatically. So this practically left no room for the common law to recognise any pre-existing aboriginal law in the form of native title. The Mabo case undoubtedly changed this notion by identifying that radical title, rather than absolute beneficial ownership was a concomitant of

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