“The requirements of proof of traditional title are a function of the protection the title provides. It is the fact of the presence of indigenous inhabitants on acquired land which precludes proprietary title in the Crown and which excites the need for protection of rights. Presence would be insufficient to establish title if it was coincidental only or truly random, having no connection with or meaning in relation to a society’s economic, cultural or religious life. It is presence amounting to occupancy which is the foundation of the title and which attracts protection, and it is that which must be proved to establish title. Thus traditional title is rooted in physical presence. That the use of land was meaningful must be proved but it is to be understood from the point of view of the members of the society.” (footnotes omitted)
Mabo v Queensland (No 2) (1992) 175 CLR 1, 188 (Toohey J).
Discuss this extract from Justice Toohey’s judgement in Mabo and compare his position with the Australian jurisprudence on proof of native title.
