Aboriginal Land Rights Essay Research Paper 10

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Aboriginal Land Rights Essay, Research Paper [1.0] ABORIGINAL LAND RIGHTS [1.1] Establishment of Native Title Three basic requirements were enunciated to establish Native Title in Mabo No 2 (1992) 175 CLR 1: 1. There must be an identifiable group, 2. There must be traditional rules and customs, 3. Traditional rules and customs must be in existence so that the group’s connection to the land has been substantially retained If any of these requirements are not met, there can be no native title over the land [1.1.1] Application On the facts the Marla people are an identifiable group maintaining their connection to their traditional land through traditional use. They have continued to practice traditional customs on their lands. [1.2] Extinguishment of Native Title [1.2.1]

Fundamental Principles: The legislature and/or the executive may extinguish native title by a clear and plain intention (Mabo No 2 (1992) 175 CLR 1). If the Crown validly alienated the land by granting an interest, wholly or partially inconsistent with native title, native title is extinguished to the extent of the inconsistency (Mabo No.2 (1992) 175 CLR 1). [1.2.2] Application [1.2.3] Aboriginal Reserve In Mabo v Queensland [No 2] (1992) 175 CLR 1 the High Court held that the creation of the reserve for the Islander inhabitants did not extinguish native title as it did not entail an inconsistent use. The setting aside of the Aboriginal Reserve by the government does not extinguish the Marla people’s native title in that area. [1.2.4] Freehold In a freehold grant, the grantee

has the right of exclusive possession over the land and native title is therefore extinguished (Mabo v Queensland [No 2] (1992) 175 CLR 1, Fejo v Larrakia [1998] HCA 58) [1.2.5] Marla Aboriginal Community Association Lease The 1000-hectare lease granted to the Marla Aboriginal Community Association in 1970 effectively extinguishes the Marla people’s native title in this area because the granting of such an interest is inconsistent with native title. [1.2.6] Pastoral Leases Pastoral leases do not extinguish all instances of native title (Wik People v The State of Queensland (1996) 187 CLR 1). In Wik it was held that pastoral leases do not necessarily extinguish native title because they do not confer exclusive possession therefore denying inconsistency with “all incidents”

of native title. Section 104 of the Land Administration Act 1997 (WA) also provides: “Aboriginal persons may at all times enter upon any unenclosed and unimproved parts of the land under a pastoral lease to seek their sustenance in their accustomed manner.” Therefore although a grant of a pastoral lease may be inconsistent with ‘some’ incidents of native title, if particular incidents of native title can be concurrently enjoyed without inconsistency with the Crown grant then they will not be extinguished by it. Given these findings I believe that the pastoral lease does not extinguish “all incidents” of the Marla peoples native title over the land. More information is required to determine which incidents of native title are extinguished by the lease however the

construction of the holding yards is likely to extinguish native title in this area because it is an ‘improvement’ to the land and therefore inconsistent with native title. It may be argued that section 104 by implication appears to exclude those native title rights in respect of enclosed parts of the relevant land. In the present case Charlie has fenced the perimeter of the pastoral lease therefore this act of enclosing the land may in fact, by virtue of section 104, operate as an extinguishment of native title in relation to those parts. Despite these implications I do not believe the pastoral lease extinguishes “all incidents” of native title. The doubts in relation to the effect of pastoral leases on native title will remain until a fixed principal is established.