Does a grant of statutory title extinguish native title?
This leads to a second question: whether, special measures or not, the grant of statutory titles would extinguish native title, quite apart from the possible salvaging effect of the Racial Discrimination Act 1975 (Cth). In Mabo (No. 2) most of the judges said that there is a presumption that Parliament does not intend to extinguish native title or to authorise its extinguishment unless the intention to do so is ‘clear and plain’. The intention of legislatures in enacting land rights legislation[21] has been clearly to confer land rights and not, I suggest, to extinguish them in the case of those peoples who might be able to claim native title. Of course legislative and executive action may be so inconsistent with the continuance of native title that extineuishment is necessarily inferred. In the case Brennan J said: A clear and plain intention to extinguish native title is not revealed by a law which merely regulates the enjoyment of native title or which creates a regime of control th
