Mabo's thesis that inconsistency under pins the question of whether a clear and plain intention has been evinced to extinguish or partially extinguish native title, is at odds with the Canadian approach. The concept of native title Fundamentally, I proceed from the notion that native title is a 'recognition concept'. The High Court tells us in Mabo that native title is not a common law title but is instead a title recognised by the common law. What they failed to tell us, and something which we have failed to appreciate, is that neither is native title an Aboriginal law title. Because patently Aboriginal law will recognise title where the common law will not.
Native title is therefore the space between the two systems,where there is recognition.
Native title is want of a better formulation the recognition space the common law and the Aboriginal law which forded recognition in particular circumstances. Adopting this concept allows us to see two systems of law running in relation to land. This is a matter of fact. No matter what the common law might say about the existence of native title in respect of land which is subject to an inconsistent grant, the fact is that Aboriginal law still allocates entitlement to those traditionally connected with the land subject of the grant. Aboriginal law is not thereby extinguished because it survives as a social reality.