...Challenges - Is recognition of native title necessary?...
Thirdly, the plaintiffs challenged Queensland's argument that any native title rights, which may have existed, were, unless recognised by the Crown, abolished immediately upon the Crown assuming sovereignty of the Islands. Queensland argued that there had never been any recognition of native title and that, as a result, native title did not form part of the law of Australia.
The plaintiffs put two counter arguments. Firstly, that such recognition had in fact occurred and, secondly, that ultimately it did not matter whether there had been recognition or not as the survival of native title did not depend on recognition by the Crown. The plaintiffs argued that recognition by the Crown was unnecessary.
This, again, was a major hurdle confronting the plaintiffs for, as Justice Brennan noted, the submissions of Queensland on this point were supported by a 'formidable body of authority.' Justice Brennan wrote that 'the relevant question is whether the rights and interests in land derived from the old regime survive the acquisition of sovereignty or do they achieve recognition only upon an express act of recognition by the new sovereign?' [Mabo No.2 (1992) CLR 1 at 54 -55]
The plaintiffs put two counter arguments. Firstly, that such recognition had in fact occurred and, secondly, that ultimately it did not matter whether there had been recognition or not as the survival of native title did not depend on recognition by the Crown. The plaintiffs argued that recognition by the Crown was unnecessary.
This, again, was a major hurdle confronting the plaintiffs for, as Justice Brennan noted, the submissions of Queensland on this point were supported by a 'formidable body of authority.' Justice Brennan wrote that 'the relevant question is whether the rights and interests in land derived from the old regime survive the acquisition of sovereignty or do they achieve recognition only upon an express act of recognition by the new sovereign?' [Mabo No.2 (1992) CLR 1 at 54 -55]
Keywords: Brennan, Chief Justice Gerard, claim, extinguishment, Mabo v Queensland No.2, native title, plaintiffs, Queensland, Radical Title, 1992
Author: Kenna, Jonathan