Brennan On Extinguishment
Justice Brennan wrote:
'Sovereignty carries the power to create and to extinguish private rights and interests in land within the Sovereign's territory.'
'[T]he exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or by the Executive. This requirement, which flows from the seriousness of the consequences to indigenous inhabitants of extinguishing their traditional rights and interests in land, has been repeatedly emphasized by courts dealing with the extinguishing of the native title of Indian bands in North America. It is unnecessary for our purposes to consider the several juristic foundations - proclamation, policy, treaty or occupation - on which native title has been rested in Canada and the United States but reference to the leading cases in each jurisdiction reveals that, whatever the juristic foundation assigned by those courts might be, native title is not extinguished unless there be a clear and plain intention to do so. That approach has been followed in New Zealand. It is patently the right rule.'
[(1992) 175 C.L.R. 1 at 63 - 64]
In summarising his judgment in point form, Justice Brennan said:
4. 'Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished by grants of estates of freehold or of leases but not necessarily by the grant of lesser interests (e.g., authorities to prospect for minerals).
5. Where the Crown has validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished to parcels of the waste lands of the Crown that have been validly appropriated for use ... and used for roads, railways, post offices and other permanent public works which preclude the continuing concurrent enjoyment of native title. Native title continues where the waste lands of the Crown have not been so appropriated or used or where the appropriation and use is consistent with the continuing concurrent enjoyment of native title over the land (e.g., land set aside as a national park).'
[(1992) 175 C.L.R. 1 at 69 - 70]
Keywords: Brennan, Justice Gerard, Canada, Canberra, Common Law, crown land, doctrine of tenure, extinguishment, High Court Decision, 03/06/1992, native title, New Zealand (Aotearoa), pastoralism, sovereignty, terra nullius, United States of America, 1992
(1992) 175 C.L.R. 1 at 63 - 64, (1992) 175 C.L.R. 1 at 69 - 70.
Author: Nettheim, Garth
Source: Brennan, Justice