Case: Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1
Outcome: discussed
The judgment of the Full Court then provides (at [66]), a useful summary of the rules which govern the recognition of native title rights and interests at common law, as formulated in Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 (" Mabo (No 2) "): "1. The colonisation of Australia by Great Britain did not extinguish rights and interests in land held by Aboriginal and Torres Strait Islander people according to their own law and custom. 2. The native title of Aboriginal and Torres Strait Islander people under their law and custom will be recognised by the common law of Australia and can be protected under that law. 3. When the Crown acquired each of the Australian colonies it acquired sovereignty over the land within them. In the exercise of that sovereignty native title could be extinguished by laws or executive grants that indicated a plain and clear intention to do so eg, grants of freehold title. 4. To secure the recognition of native title it is necessary to show that the Aboriginal or Torres Strait Islander group said to hold the native title: (a) has a continuing connection with the land in question and the rights and interests in the land under Aboriginal or Torres Strait Islander traditional law and custom, as the case may be; and (b) continues to observe laws and customs which define the ownership of rights and interests in the land. 5. Under common law, native title has the following characteristics: (a) it is communal in character although it may give rise to individual rights; (b) it cannot be bought or sold but can be surrendered to the Crown; (c) it may be transmitted from one group to another according to traditional law and customs; (d) the traditional law and custom under which native title arises can change over time and in response to historical circumstances; (e) native title is subject to existing valid laws and rights created under such laws." 604 It is worth pausing for a moment to remember that at common law, extinguishment occurred when the Crown did an act that evinced a "clear and plain intention" to extinguish native title: Mabo (No 2) at 64, 111 and 196. Once native title was extinguished, it was extinguished for all time. It must be remembered, however, that there was a presumption in relation to common law extinguishment that the Crown did not intend native title to cease to exist merely through the act of acquiring sovereignty: Mabo (No 2) at 57, 82 and 184. 605 Under the NT Act , extinguishment can only take place in accordance with the requirements of the statute. The question is whether the legislature granted, or authorised the grant of, interests that were inconsistent with native title. The test is objective, and has nothing to do with any actual intent on the legislature's part. 606 As previously indicated, s 223(1) requires that the native title rights and interests that are claimed be communal, group or individual. They must be rights and interests in relation to "land" or "waters". Both terms are defined in s 253 , which relevantly provides: " land includes the airspace over, or subsoil under, land, but does not include waters. ... waters includes: (a) sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters; or (b) the bed or subsoil under, or airspace over, any waters (including waters mentioned in paragraph (a)); or (c) the shore, or subsoil under or airspace over the shore, between high water and low water."