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HIGH COURT DECISION ON MABO - THE "PATRIMONY OF THE NATION" BASIS OF THE PROPOSITION OF ABSOLUTE CROWN OWNERSHIP
In
Williams v. Attorney-General for New Sooth Wales
(103) and in
The Commonwealth v. Tasmania. The Tasmanian Dam Case
(104), there are references to the importance of the revenue derived
from exercise of the power of sale of colonial land. The funds
derived from sales of colonial land were applied to defray the cost
of carrying on colonial government and to subsidize emigration to
the Australian colonies. Further, the power to reserve and dedicate
land for public purposes was important to the government and
development of the Commonwealth and the Sates and Territories.
Therefore it is right to describe the powers which the Crown - at
first the Imperial Crown and later the Crown in right of the
respective Colonies - exercised with respect to colonial lands as
powers conferred for the benefit of the nation as a whole (105),
but it does not follow that those were proprietary as distinct from
political powers. nor does it follow that a combination of radical
title to land and a power of sale or dedication of that land was
not a valuable asset of the Colonies. it can be acknowledged that
the nation obtained its patrimony by sales and dedications of land
which dispossessed its indigenous citizens and that, to the extent
that the patrimony has been realized, the rights and interests of
the indigenous citizens in land have been extinguished. But that is
not to say that the patrimony was realized by sales and dedications
of land owned absolutely by the Crown. What the Crown acquired was
a radical title to land and a sovereign political power over land,
the sum of which is not tantamount to absolute ownership of land.
Until recent times the political power to dispose of land in
disregard of native title was exercised so as to expand the radical
title of the Crown to absolute ownership but, where that has not
occurred, there is no reason to deny the law's protection to the
descendants of indigenous citizens who can establish their entitlement
to rights and interests which survived the Crown's acquisition of
sovereignty. Those rights and interests which may now claim the
protection of s.10 (1) of the
Racial Discrimination Act
1975 (Cth) which "clothes the holders of traditional native title
who are of the native ethnic group with the same immunity from
legislative interference with their enjoyment of their human right to
own and inherit property as it clothes other persons in the
community":
Mabo v. Queensland
(106).
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