...Is recognition of native title necessary?...
Queensland had failed to persuade the Court that annexation delivered an absolute ownership of the islands to Queensland incompatible with the survival of native title. However, it raised a further argument against the survival of Meriam native title rights, submitting that all pre-existing customary rights are abolished upon colonisation of an inhabited territory unless expressly recognised by the new sovereign.
Justice Brennan, at p 54, acknowledged that '[t]here is a formidable body of authority, mostly cases relating to Indian colonies created by cession, to support this submission.' Justice Blackburn in Milirrpum had followed this line
of authority.
Nevertheless Justice Brennan, at p 55, considers that such a position 'is not in accord with the weight of authority.' The majority (Justice Dawson dissenting) took the view that an alternative line of authority, represented by cases such as In re Southern Rhodesia, Amodu Tijani v Secretary Southern Rhodesia [1921], Guerin v The Queen, Calder and Delgamuukw v British Columbia, was more persuasive and should be followed. These cases elucidate what is referred to as the 'doctrine of continuity' according to which traditional title to land is not extinguished by the acquisition of sovereignty but is presumed to continue unless and until lawfully terminated by the new sovereign. Native title survives the acquisition of sovereignty regardless of whether there is recognition by the new sovereign.
Justice Brennan, at p 54, acknowledged that '[t]here is a formidable body of authority, mostly cases relating to Indian colonies created by cession, to support this submission.' Justice Blackburn in Milirrpum had followed this line
of authority.
Nevertheless Justice Brennan, at p 55, considers that such a position 'is not in accord with the weight of authority.' The majority (Justice Dawson dissenting) took the view that an alternative line of authority, represented by cases such as In re Southern Rhodesia, Amodu Tijani v Secretary Southern Rhodesia [1921], Guerin v The Queen, Calder and Delgamuukw v British Columbia, was more persuasive and should be followed. These cases elucidate what is referred to as the 'doctrine of continuity' according to which traditional title to land is not extinguished by the acquisition of sovereignty but is presumed to continue unless and until lawfully terminated by the new sovereign. Native title survives the acquisition of sovereignty regardless of whether there is recognition by the new sovereign.
Keywords: Australian Court Case, Blackburn, Justice, Brennan, Justice Gerard, Guerin v The Queen, International Court Case, International Court Case, Mabo judgement, Milirrpum v Nabalco Pty Ltd, 1971 , native title, Queensland, recognition, Southern Rhodesia, Amodu Tijani V Secretary, 1921
Author: Kenna, Jonathan