Extinguishment of Native Title Continued
The plaintiffs also acknowledged that the Crown's radical title carried with it the power to extinguish native title.
The Crown was able to grant interests in land which, if inconsistent with the on-going exercise of native title, could effectively extinguish native title over that area of land. The plaintiffs argued that native title continues until either extinguished or abandoned. Their position regarding extinguishment is summarised in paragraphs 12 and 14 of the (amended) Statement of Claim:
'12. Her Majesty Queen Victoria as International Sovereign extended Her sovereignty over the whole of the said Islands subject to the rights of the Meriam people and in particular subject to the rights of the predecessors in title of the Plaintiffs to the continued enjoyment of their rights in the respective lands, seas, seabeds and reefs (all hereinafter called "lands") according to -
(a) their local custom (hereinafter called "ownership by custom")
(b) their original native title (hereinafter called "traditional native title")
(c) their actual possession, use and enjoyment of the said Islands (hereinafter called "usufructuary rights")
until such time as the said
(i) ownership by custom
(ii) traditional native title
(iii) usufructuary rights
were lawfully extinguished, purchased, acquired, interfered with, derogated from, disturbed, detracted from, subjected to inconsistent action, or surrendered (all of which are hereinafter referred to as "impaired")."
"14 Save for the areas referred to in paragraph 4(e) hereof the
(a) ownership by custom
(b) traditional native title
(c ) usufructuary rights
of the Meriam people and in particular of the plaintiffs and their predecessors in title continued and have not been impaired by Her Majesty Queen Victoria or by any of Her successors in title or by the Colony of Queensland or by the defendants since the extension of sovereignty as aforesaid.'
The Crown was able to grant interests in land which, if inconsistent with the on-going exercise of native title, could effectively extinguish native title over that area of land. The plaintiffs argued that native title continues until either extinguished or abandoned. Their position regarding extinguishment is summarised in paragraphs 12 and 14 of the (amended) Statement of Claim:
'12. Her Majesty Queen Victoria as International Sovereign extended Her sovereignty over the whole of the said Islands subject to the rights of the Meriam people and in particular subject to the rights of the predecessors in title of the Plaintiffs to the continued enjoyment of their rights in the respective lands, seas, seabeds and reefs (all hereinafter called "lands") according to -
(a) their local custom (hereinafter called "ownership by custom")
(b) their original native title (hereinafter called "traditional native title")
(c) their actual possession, use and enjoyment of the said Islands (hereinafter called "usufructuary rights")
until such time as the said
(i) ownership by custom
(ii) traditional native title
(iii) usufructuary rights
were lawfully extinguished, purchased, acquired, interfered with, derogated from, disturbed, detracted from, subjected to inconsistent action, or surrendered (all of which are hereinafter referred to as "impaired")."
"14 Save for the areas referred to in paragraph 4(e) hereof the
(a) ownership by custom
(b) traditional native title
(c ) usufructuary rights
of the Meriam people and in particular of the plaintiffs and their predecessors in title continued and have not been impaired by Her Majesty Queen Victoria or by any of Her successors in title or by the Colony of Queensland or by the defendants since the extension of sovereignty as aforesaid.'
Keywords: claim, extinguishment, land ownership, native title, plaintiffs, Queen Victoria, Radical Title, sovereignty, 1989
Author: Kenna, Jonathan