...Surrender, abandonment and extinction...

Native title may be surrendered to the Crown by agreement, as the Crown asserts the sole right, as sovereign, to acquire native title outside of the Indigenous system of law. Native title then is effectively given up. In addition to surrendering to the Crown, native title can lose recognition under the common law if the connection to the land no longer exists. Native title may be lost if the laws and customs that sustain native title are abandoned by the people themselves, or through extinction of the community that hold native title. In Mabo v Queensland [No. 2], for Justices Deane and Gaudron at least, continued occupation would suffice to show that the connection is maintained. The decisions such as that of the Federal Court rejecting the application of the Yorta Yorta for native title, has cast doubt on the circumstances in which the law will recognise continuing connection.

Keywords: Deane, Sir William, Federal Court of Australia, Gaudron, Justice Mary, land ownership, land rights, Mabo v Queensland No.2, native title, Yorta Yorta, Yorta Yorta Decision

Author: Strelein, Lisa