70317 Chap.2 Native Title and Its Extinguishment
Native Title and Its Extinguishment
A doctrine with a different origin
The High Court's 1992 judgment, Mabo v State of Queensland (No 2), recognised native title, but native title reflects the bond between traditional owners and their country, which long predates the common law.
Brennan J rejected the idea that the land was terra nullius and held that the Crown acquired radical title, not full beneficial ownership.
Recognition and extinguishment
Native title is recognised where traditional laws and customs continue and connection with the land is kept. It can be extinguished by a Crown grant inconsistent with it.
A grant of fee simple gives exclusive possession and ends native title permanently, as Kirby J explained in Fejo; it does not revive if the Crown later reacquires the land.
Why it is examinable
Mabo and Fejo both carry the asterisk that marks a case you may be asked about, and the Part A quiz may include native title.
What this chapter covers
- 01
Mabo (No 2) and the rejection of terra nullius
- 02
Radical title and beneficial ownership
- 03
What must be proven for native title
- 04
Extinguishment by inconsistent grant
- 05
Fejo and the permanence of extinguishment
- 06
Pastoral leases and the inconsistency question
Worked example · free
Testing whether native title survives a later grant
- 1Separate existence from survival: continuing laws, customs and connection go to whether native title existed.
- 1The 1935 fee simple conferred exclusive possession, which is inconsistent with native title rights.
- 1An inconsistent grant extinguishes native title, and a fee simple does so permanently.
- 1The 2001 repurchase does not revive it (Fejo), so no native title exists over the block at common law.
Key terms
- Terra Nullius
- The idea that land belonged to no one when the Crown acquired sovereignty, rejected by the High Court in Mabo.
- Radical Title
- The Crown's underlying title, giving power to grant interests without full beneficial ownership of the land.
- Extinguishment
- The permanent ending of native title by a grant or act inconsistent with the native title rights.
- Pastoral Lease
- A Crown lease of land for grazing, whose effect on native title depends on the rights it grants.
Native Title and Its Extinguishment FAQ
What did Mabo (No 2) decide?
The High Court recognised that the common law could acknowledge native title, the rights of Indigenous people arising from their traditional laws and customs. Brennan J rejected terra nullius and held that the Crown acquired radical title on sovereignty, so pre-existing rights could survive wherever no inconsistent grant had been made.
Why does a fee simple extinguish native title?
A fee simple gives its holder exclusive possession, the right to exclude everyone else. That is inconsistent with continuing native title rights over the same land, so the grant extinguishes them. Fejo confirms the extinguishment is permanent and does not reverse if the land later returns to the Crown.
Is native title tested in the quizzes as well as the exam?
Yes. The instructions for the Part A quiz, which covers Weeks 1 and 2, warn that although the practice videos do not discuss native title, quiz questions may still cover it. Mabo and Fejo are also asterisked readings, which the subject says can be the basis of an exam question.
Can native title exist alongside a pastoral lease?
That depends on what rights the lease granted, which is why the pastoral lease appears on the Week 1 revision list. The question is whether the rights given to the leaseholder are inconsistent with the native title rights claimed. A fee simple always is; a lease granting fewer rights must be examined before reaching a conclusion.
Exam move
Read the set paragraphs of Brennan J in Mabo and Kirby J in Fejo, and paraphrase one sentence from each in your own words. Then practise separating the two questions every native title problem raises: whether native title exists, and whether a later grant extinguished it.
Write a short comparison of Attorney-General v Brown with Mabo for tutorial question 12, and use respectful language about traditional owners and their country throughout. Then list the words of the Week 1 revision page that relate to native title, terra nullius, extinguishment and the pastoral lease, and check that you can define each one in a sentence of your own.
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