The Usufructuary Rights Of A Person Who Possesses Native Title
The rights inhering to a person who has native title was compared to that of an usufructuary in Mabo. Connolly (1993) argues that the judges were talking through their hat (or rather through their wigs).
It is causing the greatest difficulty for all involved to understand just what it is intended by the expression "native title" which is invented by the decision. The notion seems best identified by the words "usufructuary right" which appear in the judgement. It is a pity that the study of Roman Law has been largely discontinued. It should have been apparent that a usufruct was a right exercisable against the property of another! As used in the Canadian cases which deals with Aboriginal title, it was a right exercisable against the property of the Crown. But the majority deny that the Crown had any property in the law. Who then was this mysterious other? Perhaps Captain Phillip should have been negotiating with him?
But let that be. One form of usufruct was a right to take the fruits of the earth. Giving the widest meaning one can to what in the circumstances is a pretentious and inaccurate expression, what seems to be said is that on first settlement, the Aboriginal population had collective "rights" to move across land, collecting its fruits and the game they found. It is also an historical fact that they resorted to particular places for ceremonial purposes, and as a means to clearing undergrowth and allowing the grasses and young growth to shoot, thus encouraging the proliferation of game, they regularly and constantly set fire to the countryside. If the right to carry on all of these activities is to be included in "native title'' it is still difficult to see in this legislation any basis for suggesting that there were deprived by white settlement of anything other than the right to carry on the activities of Palaeolithic man. In particular, they did not mine the earth. (Connolly:1993:88-89).
It may be that the focus of the Court's creation of native title was to create a right of control. Nevertheless, the Court's analogy to usufructuary rights heightens the general ambiguity surrounding the case.
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