...Native title: a burden on the radical title of the Crown...
The majority took the view, neatly expressed by Justice Toohey at p 184, 'that traditional native title may exist after annexation because it was not precluded by Crown ownership of occupied lands and because it arose regardless of positive recognition by the Crown.'
The result was that the underlying (radical) title to the Islands, which the plaintiffs acknowledged passed to the Crown upon annexation, was burdened by the common law native title of the Islanders. This was the case throughout Australia:
'The lands of this continent were not terra nullius or "practically unoccupied" in 1788. The Crown's property in the lands of the Colony of New South Wales was, under the common law which became applicable upon the establishment of the Colony in 1788, reduced or qualified by the burden of the common law native title of the Aboriginal tribes and clans to the particular areas of land on which they lived or which they used for traditional purposes.'
Keywords: Common Law, native title, New South Wales, plaintiffs, Radical Title, terra nullius, Toohey, Justice , 1992
(1992) 175 CLR 1 per Justices Deane and Gaudron at 109.
Author: Kenna, Jonathan