Transcript

The parties to this proceeding were the Commonwealth of Australia and the State of Tasmania. The dispute concerned the constitutional validity of certain provisions of the *Native Title Act 1993* (Cth) (the Act), specifically those relating to the extinguishment of native title by the grant of certain interests in land. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the *Native Title Act 1993* (Cth) validly extinguished native title rights and interests in land where those rights and interests were inconsistent with the grant of certain interests in land, such as pastoral leases, that had been made prior to the commencement of the Act. This involved an examination of the constitutional power of the Commonwealth Parliament to make laws with respect to native title, particularly in light of the *Mabo* decision and the subsequent legislative response.

Gummow J, in his reasons, considered the nature of native title as recognised in *Mabo v Queensland (No 2)* and the legislative power of the Commonwealth under s 51(xxvi) of the *Constitution* to make laws for the people of any race for whom it is deemed necessary to make special laws. His Honour concluded that the *Native Title Act 1993* (Cth) was a valid exercise of this legislative power and that the provisions of the Act, which provided for the extinguishment of native title where it was inconsistent with the grant of certain interests, were constitutionally sound. The reasoning focused on the ability of the Commonwealth to legislate for the extinguishment of native title in a way that reconciled existing interests with the recognition of native title.