Mabo v State of Queensland No 2 1992 175 CLR 1 413 1Required determination in

Mabo v state of queensland no 2 1992 175 clr 1 413

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Mabo v State of Queensland (No 2) (1992) 175 CLR 1 – 4.131.Required determination in the HC of the Crown’s right/ interest in the land2.Required determination of nature of Native title if found to existColonies established on the basis that Indigenous did not have any law in respect to land – NOW FALSE-land control regulated feudal system – Crown all land – managing particular social relationships-question of whether Aus legal system was going to continue insist on the validity on this system even though its modern effect was out of contemporary legal values + was racist-HC said although the Crown did initially acquire sovereignty (terra nullius) was not justiciable in court, they made decisionto depart from this difference and attempted to rectify the situation by accepting that past legal decisions had conflated sovereignty with dominionAn assertion of sovereignty did not necessarily go hand in hand with absolute beneficial ownership.What the Crown acquired on sovereignty was “Radical title”It was only when the Crown actuallyexercised its sovereign right to control, use or allocate ownership by actual grant or by actual regulation did the concept of radical title mature into something like ordinary titleWhen Captain Cook planted the flag, this didn’t mean immediately that the English Crown had absolute beneficial ownership of all of the land in Aus. Only got sovereignty – the right to make law over land but rights of occupation which was pre-existing the grant of sovereignty could continueAboriginal people who had rights of occupation over land could continue to exist together with Crown’s claim of sovereigntyBUT native title only continued where the traditional connection with the land had been maintained;Native title would be extinguished where the Crown had indicated a clear and plain intention to do so. Native title did not have a status equal to other Crown grants. It was an encumbrance on the Crown’s radical title rather than agrant originating with the Crown. Aboriginal sovereignty not recognised though, can’t make own laws to land1.Recognised Native title but would only continue if Indigenous people continued to maintain their traditional connection with their land through all years – would extinguish city centres2.Recognised Native Title could be extinguished where the Crown had indicated intention to do so where it had made grants of land to othersProperty, Sovereignty and the doctrine of Radical titleThere is a sharp distinction between government and ownership, imperium and dominiumThe Crown’s radical title (loosely eminent domain) includes the power to create, regulate or extinguish property rights Does not carry with it rights to possess or enjoy it but does allow it to make grants.Sovereigntyincludes the power to create, regulate or extinguish property rights as well as to create laws about things other than property. This is not the same as ‘ownership’‘Radical Title’A M Honoré, ‘Ownership’ in A G Guest
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