Unformatted text preview: s, rivers, creeks and swamps,
where those waters are not privately owned. For example, the High Court confirmed in Commonwealth
v Yarmirr  HCA 56 (the ‘Croker Island Case’) that native title holders could have limited rights
over offshore waters. Native title and land rights
Native title and land rights are not one and the same thing. Land rights are grants created by government, while native title is a pre-existing right derived from traditional law and customs that evolved in
Australia long before white settlement occurred. Native title isn’t a grant or right created by governments. Extinguishment of native title
The High Court held in Fejo v Northern Territory of Australia (1998) 195 CLR 96 that once land had
been subject to freehold title, native title rights were then lost and could not be ‘revived’ if the land was
subsequently taken back by the Crown. The High Court also indicated that legislative intention wasn’t
essential to effect an extinguishment of native title. If the act of the executive—for example, by way of a
Crown grant—exhibited a clear and plain intention to extinguish native title, that would suffice. Rights of pastor...
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This document was uploaded on 04/23/2012.
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