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HIGH COURT DECISION ON MABO - (XIII) LEGISLATIVE POWERS WITH RESPECT TO COMMON LAW NATIVE TITLE.
Like other legal rights, including rights of property, the rights
conferred by common law native title and the title itself can be
dealt with, expropriated or extinguished by valid Commonwealth, State
or Territorial legislation operating within the State or Territory in
which the land in question is situated. To put the matter
differently, the rights are no entrenched in the sense that they
are, by reason of their nature, beyond the reach of legislative
power. The ordinary rules of statutory interpretation require,
however, that clear and unambiguous words be used before there will
be imputed to the legislature an intent to expropriate or extinguish
valuable rights relating to property without fair compensation (297).
Thus, general waste lands (or Crown lands) legislation is not to be
construed, in the absence of clear and unambiguous words, as
intended to apply in a way which will extinguish or diminish rights
under common law native title. If lands in relation to which such
title exists are clearly included within the ambit of such
legislation, the legislative provisions conferring executive powers
will, in the absence of clear and unambiguous words, be construed
so as not to increase the capacity of the Crown to extinguish or
diminish the native title. That is to say, the power of the Crown
wrongfully to extinguish the native title by inconsistent grant will
remain but any liability of the Crown to pay compensatory damages
for such wrongful extinguishment will be unaffected. The executive
acts of the Crown under Crown or waste lands are transferred to
trustees to be held upon trust for Aboriginal interests, it will be
presumed, in the absence of clear and unambiguous words, that the
lands were intended to be held by the trustees for the holders of
the common law native title to the extent necessary to enable
enjoyment of their rights of occupation and use.
There are, however, some important constraints on the legislative
power of Commonwealth, State or Territory Parliaments to extinguish
or diminish the common law native titles which survive in this
country, In so far as the Commonwealth is concerned, there is the
requirement of s.51 (xxxi) of the Constitution that a law with
respect to the acquisition of property provide "just terms". Our
conclusion that rights under common law native title are true legal
rights which are recognised and protected by the law would, we
think, have the consequence that any legislative extinguishment of
those rights would constitute and expropriation of property, to the
benefit of the underlying estate, for the purposes of s.51 (xxxi).
An even more important restriction upon legislative powers to
extinguish or diminish common law native title flows from the
paramountcy of valid legislation of the Commonwealth Parliament over
what would otherwise be valid State or Territory, legislation. In
particular, as
Mabo v. Queensland
(298) has demonstrated, the provisions of the
Racial Discrimination Act
1975 (Cth) represent and important restraint upon State or Territory
legislative power to extinguish or diminish common law native title.
It is unnecessary and would be impracticable to seek to identify
the extent to which particular legislative provisions have clearly
and unambiguously extinguished or adversely affected common Alawa
native title in different areas of this country. That being so, the
general comments about enforcement and protection in the next section
of this judgment must necessarily be read as subject to the
provisions of any valid applicable legislation.
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