Is Native Title A Proprietary Right
- Publisher:
- Murdoch University
- Publication Type:
- Journal Article
- Citation:
- Murdoch University Electronic Journal, 2002, 9 (3), pp. 1 - 13
- Issue Date:
- 2002-01
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# The aim of this paper is to examine whether or not native title is a proprietary right. Unlike other forms of title,[1] native title has only been recognized by the common law since 1992 when the landmark case Mabo v Queensland (No 2) was handed down.[2] Owing both to the brevity of its existence and the complexity of the concepts underpinning it, there is still debate and a degree of uncertainty surrounding how native title is most appropriately characterized. This debate continues amongst both the judiciary and legal scholars. # Mabo v Queensland (No 2) failed to offer one conclusion on the question of the nature of native title. Indeed it was variously described native title as 'proprietary',[3] 'personal',[4] 'usufructuary',[5] 'sui generis'[6] as affording a 'permissive occupancy',[7] and perhaps as 'possessory'.[8] More recently is has been described as being a 'bundle of rights'.[9] # This paper will examine briefly the alternative characterizations to the proprietary one but ultimately its main focus is an examination of whether or not native title is most appropriately described as proprietary in nature.
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