A Critique of the Development in the High Court’s Jurisprudential Approach: Extinguishment of Native Title and the Principle of Equality before the Law


One of the most challenging aspects of the law of native title is its historical underpinnings in the development of international jurisprudence of European colonial powers regarding settlement, conquest and cession,[1] which asserts and legitimises the sovereign power assumed by the Crown to be able to extinguish native title rights and interests,[2] herein after generally referred to as ‘traditional title’ and ‘traditional title rights and interests’, which seems a less derogatory way of referring to it.[3] While repudiating the legal fiction of terra nullius and holding that the Crown’s radical title acquired upon settlement was burdened by the prior traditional title rights and interests, the High Court maintained that tradition title could be extinguished by valid legislative and executive acts.[4] I will argue that, irrespective of which legal test for extinguishment is applied, while the protection of traditional title appeared to be grounded upon the application of the principles of equality, ultimately, because traditional title was deemed to have a “unique status” – due to its source, not from Crown grant, but traditional law and custom – which rendered it uniquely vulnerable to extinguishment, the fact that it is not being protected to the same degree by the universal presumption against Parliament intending to extinguish private property rights, evinces a fundamental rejection of the principles of equality.[5]   

This essay will begin by critically examining the different approaches to equality in Mabo v Queensland (Mabo (No 1)),[6] contrasting the narrower, literal approach of Wilson and Dawson JJ with the broader approach of Brennan, Gaudron, Toohey and Deane JJ. I will explore how these distinctive approaches mirror the tension in international law between the protection of minority rights versus distinctive collective rights, such as the right to self-determination for indigenous peoples.[7] Having laid this foundation, I will examine the underpinnings of the “clear and plain intention” test in Mabo (No 2)[8] in the common law presumption regarding Parliament’s interference with private property rights.[9] I will discuss some of the laws regarding compulsory acquisition and its relationship to extinguishment of native title. Following from this, I will explore the shift in jurisprudential approach towards the “inconsistency of incidents” test,[10] and the later shift back to the “clear and plain intention” test[11] – critically examining the connection between these different approaches and the application (or repudiation) of the principles of equality.[12] Finally, I will examine the critical opinions of the extinguishment of native title in Australian law,[13] the jurisprudence of regret and genuine acknowledgement of difference in developing a pluralistic jurisprudence.[14]

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