...What is native title?...
According to Justice Brennan:
'The term "native title" conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants.' (1992) 175 CLR 1 at 57
The content of native title is thus determined by these traditional laws and customs. It does, however, generally bear the following features:
* It encompasses usufructuary rights under which native title holders are able to use their lands for hunting, gathering and fishing - but the content of native title rights are not frozen as at the time of European settlement
* It may be possessed only by the indigenous inhabitants and their descendants
* It may be held by a community, group or individual in accordance with traditional law and customs
* It cannot be transferred except to the Crown or in accordance with traditional law and customs
* It may be extinguished if the native title holders lose all connection to their lands and ceased to observe their traditional laws and customs
For a fuller exposition of these principles see the judgment of Brennan J. Mabo v Queensland (1992) 175 CLR 1 at 58-63.
'The term "native title" conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants.' (1992) 175 CLR 1 at 57
The content of native title is thus determined by these traditional laws and customs. It does, however, generally bear the following features:
* It encompasses usufructuary rights under which native title holders are able to use their lands for hunting, gathering and fishing - but the content of native title rights are not frozen as at the time of European settlement
* It may be possessed only by the indigenous inhabitants and their descendants
* It may be held by a community, group or individual in accordance with traditional law and customs
* It cannot be transferred except to the Crown or in accordance with traditional law and customs
* It may be extinguished if the native title holders lose all connection to their lands and ceased to observe their traditional laws and customs
For a fuller exposition of these principles see the judgment of Brennan J. Mabo v Queensland (1992) 175 CLR 1 at 58-63.
Keywords: Brennan, Justice Gerard, indigenous law, Mabo v Queensland No.2, native title, 1992
Author: Kenna, Jonathan
Source: Brennan, Justice
Source: Brennan, Justice