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HIGH COURT DECISION ON MABO - THE ROYAL PREROGATIVE BASIS OF THE PROPOSITION OF ABSOLUTE CROWN OWNERSHIP
Mr Justice Evatt described ownership of vacant lands in a new
colony as one of the proprietary prerogatives (107). But, as that
author's lately published work on
The Royal Prerogative
shows (108), there was no judicial consensus as to whether title to
ownership of the vacant lands in the Australian Colonies was vested
in the King as representing the supreme executive power of the
British Empire or in the Crown in right of the respective Colonies.
The management and control of the waste lands of the Crown were
passed by Imperial legislation to the respective Colonial Governments
as a transfer of political power or governmental function not as a
meeter of title (109). The suggestion that, after the passing of
the powers to colonial governments the Crown commenced to hold Crown
lands "in right of the colony" (110) and held those lands in
absolute ownership, involves the notion that ownership resided in the
Executive Government whose legislature was vested with power to enact
laws governing the management and control of colonial waste lands.
But the Imperial Parliament retained the sovereign - that is, the
ultimate - legislative power over colonial affairs, at least until
the adoption of the Statute of Westminster (111) and it is hardly
to be supposed that absolute ownership of Colonial land was vested
in colonial governments while the ultimate legislative power over
that land was retained by the Imperial Parliament. However, if the
Crown's title is merely a radical title - no more than a postulate
to support the exercise of sovereign power within the familiar
feudal framework of he common law - the problem of the vesting of
the absolute beneficial ownership of the colonial land does not
arise; absolute and beneficial Crown ownership can be acquired, if
at all, by an exercise of the appropriate sovereign power.
As none of the grounds advanced for attributing to the Crown an
universal and absolute ownership of colonial land is acceptable, we
must now turn to consider a further obstacle advanced against the
survival of the rights and interests of indigenous inhabitants on
the Crown's acquisition of sovereignty.
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