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Mabo V Queensland
Mabo V Queensland
Facts
The Plaintiff [Mabo, representing the Merriam people] had occupied
certain islands in Queensland long before colonial occupation. The
present inhabitants were direct descendants of those people described
in colonial reports.
In Mabo (No 1), the court held that the new legislation was indeed
contrary to the Racial Discrimination Act. This case concerned the
question of ownership and title, in particular, whether the common law
doctrine of tenure could coexist with native title.
Argument
Plaintiffs:
2. The islands were not and never had been ‘Crown land’ per
the Land Act 1962 (Qld) and previous Crown lands legislation;
Issues
Native Title:
Whether the Crown acquired full beneficial ownership or
radical title to the land in the Murray Islands.
Judgement
Radical Title
Once the Crown made a land grant, that land was thereafter held
on the basis of tenure, and the Crown got full beneficial
ownership over that land. A title thus acquired cannot be
disturbed.
However, land which was not the subject of such 'grants' were
not acquired by the crown and thus are not subject to the
doctrine of tenure.
Native Title
The common law of Australia recognises a form of native title.
This title reflects the rights of the indigenous inhabitants in
accordance with their laws and customs.
Native title exists where:
Only the indigenous can have native title, and once it is lost (eg,
by purchase, voluntarily, by losing connection with the land, if it
was extinguished by the Crown), it is lost forever.