“One of the most distinct and enduring characteristics of native title rights and interests in Australia is their susceptibility to extinguishment. The scope and range of doctrine of extinguishment is sweep.”This article discusses the development and consequences of the doctrine of extinguishment since Mabo v Queensland (No 2) in protecting the native title of aboriginals. After outlining the recent development of this doctrine, this article examines how the courts and legislation narrowed the meaning of the doctrine as McRae suggested in three scenarios. The effect of application of the doctrine is also examined to determine whether it is detrimental to the purpose of native title protection by considering the result of the court decision. This article argues that the “law often helps in one way, but also does something that has a negative effect” seeming correct at face value. However, the development of the doctrine of extinguishment improved certainty and workability for solving the native title issue gradually. It is a necessary concession to achieve the land justice for the whole society because the court needs to find a balance point of competing interest. The courts’ decision must be tolerated by the current Australian Parliament. If the ultimate purpose of the law is to achieve the promise of land justice for all, that law helps to find a practical solution. In this process, some sacrifices in restricting the applicable scope and condition of the doctrine of extinguishment are inevitable. The doctrine of extinguishment is a useful tool to achieve the ultimate land justice goal.
Development of the doctrine of extinguishment since Mabo
Mabo v Queensland (No 2) utilized the common law doctrine of extinguishment and recognised the native title in Australian law for the first time. The following decision marked the scope and condition of this doctrine. Wik People v Queensland held that native title and pastoral leases were capable of coexisting. Western Australian v Ward redefined the doctrine and held that “Native title Act mandates partial and permanent extinguishment using inconsistency of incidents test before alternatives. For native title determinations under the Native Title Act, the primary regard is the Act. Common law principles, such as those established in Mabo and Wik, are only to be used for the interpretative purpose.” The case Members of the Yorta Yorta Aboriginal Community v Victoria requires the proof of a native title society to sustain native title. “Akiba v Commonwealth held extinguishment would happen only if this was a necessary implication of legislation. Karpany v Dietman and Queensland v Congoo both held regulating the exercise of rights is not pertinent to the question of extinguishment of those rights, the Court read the Act in a way that could allow it and native tile rights to co-exist.”In Western Australia v Brown “the Court held that the native title right could be suspended.” “In Warrie v Western Australia, the Federal Court developed a more flexible approach to interpreting the native title right of exclusive possession”. “Recent decision of High Court suggested a more restrictive approach to the extinguishment of the native is being developed.” 
Consequence of Doctrine of Extinguishment
McRae Proposed that “Mabo itself and the following courts’ case imposed the restrictive doctrine of extinguishment”. The doctrine of extinguishment adopted by courts can be classified into three categories according to the scenario involved.
- “A lawful legislative or executive exercise of power to grant interests in land inconsistent with the continued rights of indigenous people to enjoy native title”.
“Where the Crown has validly alienated land by granting an interest that is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency.” In this circumstance, the court is required to “identification of and comparison between two sets of rights, sometimes call the inconsistency of incidents test. The extent of the inconsistency requires a careful analysis as to the nature and extent of the rights which Parliament intended to create under a relevant statutory provision.”
- A lawful exercise of legislative or executive power in the form of a legislation provision or framework which is interpreted to be in consistent with native title rights and interests”.
The decision in Mabo (No 2) laid down that “An extinguishment arising from the necessary implication of law occurs where it is determined that Parliament intended, through a clear and plain exercise of sovereign power, to extinguish native title rights and interests,” “a ‘clear and plain’ intention could be necessarily implied from the fact of inconsistency between native title and an extinguishing act.” Here, “the doctrine of extinguishment is qualified by two constitutional limitation, section 51 (xxxi) and section 109 by considering Racial Discrimination Act 1975(RDA) section 10(1).” “The prevailing mythology has been to bifurcate the possible characterisations of the legislative framework as prohibitive or regulatory. In each instance, the justifications and interpretative strategies employed to determine which characterisation the legislation in issue should be given varies in scope and form.”
As a result, “Legislation enacted prior to implementation of RDA is prima facie valid and any extinguishment of native title in this context will depend upon common law assessment process” . This is where the doctrine of extinguishment can play a role to determine the existence of native title. “By contrast, legislation enact after RDA which may be invalid as a consequence of Section 10(1), is subject to the validating provisions of the Native Title Act (NTA) provided that the exercise of legislative or executive power predates 1 January 1994, which is the date when the NTA enter into force.” The doctrine of extinguishment normally will not play an important role in this circumstance.
- Native title to a particular land belongs to indigenous people who have connection with the land. 
The existence and extent of connection is decided by the courts. The Court must determine what is considered “tradition” in the sense of keeping the connection and sustain native title as Yorta Yorta case. “The Court suggested that the present tense of the provisions requires that the normative system has had a continuous existence and vitality since sovereignty.” This interpretation of the requirements of proof, and in particular the meaning attributed to the concept of “traditional’, caused Yorta Yorta community to lose the case.
Above all, in practice, it shows the doctrine does not unconditionally protect native title. Besides, “The practice of extinguishment raises several questions regarding fundamental international legal human rights standards on equality and non-discrimination, as extinguishment only affects indigenous peoples”.
From the above analysis on the development and consequences of the doctrine of extinguishment, it suggests McRae’ statement that ‘the knack the law has of giving with one hand and taking away with the other’ has a point at face value, but it should be taken with a grain of salt. I argue that she misses the big picture of land justice advancing and turned a blinded eye to the fact that the case law and legislation contributed to the progress of native title protection. Taken the effect of the doctrine of extinguishment on native title protection into account, the taking back or defects of the doctrine is more likely to be a pragmatic compromise in finding the solution to protect native title for the following reasons.
Firstly, the consequence of these decision primarily shows it made in favour of Aboriginal’s claim on native title. McRae’s view that laws restrict the doctrine of extinguishment harms native title is true to some extent, especially the approach “arguably contradicts the idea that there is a common law presumption working in favour of protecting native title rights”. However, we should focus on the consequence of these decision primarily. As a matter of fact, the High Court indeed provided redress in no less than five decisions regarding the doctrine of extinguishment. E.g. Akiba v Commonwealth, Karpany v Dietman, Western Australia v Brown, Queensland v Congoo, Warrie v Western Australia case. They all have been resolved in favour of the native title claimants.
Secondly, the subsequent case law and legislation improved the certainty and workability for all parties involved. Even though these decisions “may subordinate native title rights to other interests and perpetuating historic power imbalances and reveals itself to be discriminatory and contrary to fundament common law principle” and only affects indigenous peoples, however from the effectiveness of law point of view, it is evident that the courts make the doctrine of extinguishment clearer and more useful for Aboriginal to claim the the native title . Therefore, the concession is more likely to be a pragmatic compromise.
Thirdly, the concession of the doctrine is in the response to the reality created by the tide of history.
At face value, it looks like the High Court interpret the doctrine of extinguishment against native title protection in Yorta Yorta case. Specifically speaking, “The Court defined tradition, continuity and connection in ways that make native title extremely difficult to establish and which artificially limit the kind of rights that may be recognised”. But given the fact that “Yorta Yorta people’s lands are located along the Murray River, in one of the most productive agricultural regions in Australia,”there are legitimate competing interests on this land formed through the tide of history which the Court cannot ignore. “The compromise is seen as necessary because it would be impossible to ignore, or completely deconstruct, the development of over 200 years of land grants in Australia”. Therefore, the Court’s rigorous requirements on continuity of tradition are sensible.
Besides, the restriction created by calling for the “ inconsistency of incidents test” is necessary to identify where and how much native title still exist after the tide of history. Recognising native title without restriction and ignoring other rights having been established by the tide of history is simply impractical and will create another kind of injustice for other non-indigenous people who own the rights of land through righteous means. However, I think a much more lenient approach could be adopted as what Canadian Court have taken “by adopting factual inconsistency approach rather than using legal inconsistency approach”.
Finally, the series of court’s decision is in the process of finding the balance point among competing interests because only the balanced point in this circumstance can last for a long time. If the court’s decisions overreach a legal point beyond the tolerance of Parliament, even though the point is sound in principle and in law, it inevitably will invite the reaction of government by proclaiming new legislation. Native title Amendment Act 1998 (Cth) which makes substantial changes to the Native title Act 1993 after the decision of the Wik People case is a vivid example. As a result of the passage of the Native Title Amendment Act 1998, “the High Court’s native title decision and NTA amendments were collectively ‘clawing back’ the spirit of Mabo and its promise of land justice.” “ It (re)enforces -and continues to protect-white Australian’s investment in indigenous people’s country, land and natural resources.” Consequently, the perfectionism will harm the native title protection in the end.
There is some evidence suggesting McRae is right as the doctrine of extinguishment has shortfalls. However, the doctrine played a vital part in the process of reconciliation of rights with the protection of other legitimate interests. If we accept the doctrine as a vehicle to find out the workable native title solution, considering in such a light, the courts’ decisions can be interpreted as locating the balance point. The balance point helps the native title to be protected from the reaction of parliament by proclaiming more restrictive legislation. As only the interests on the mutually accepted balance point could last, the doctrine contributed to finding a practical way of claiming and keeping indigenous rights in lands and resources to deliver the promise of land justice.
Brennan, Sean, ‘Native Title in the High Court of Australia a Decade after Mabo’ (2003) 14 PLR 209
Edgeworth, Brendan, ‘Extinguishment of Native Title: Recent High Court Decision. (Australia)’ (2016) 8(22) 34
Gilbert, Jeremie, ‘Historical Indigenous Peoples’ Land Claims : A Comparative and International Approach to the Common Law Doctrine on Indigenous Title’  Cambridge University Press
Hepburn, Samantha, ‘Statutory Interpretation and Native Title Extinguishment : Expanding Constructional Choice’ (2015) 38(2) UNSWLawJI 20 587
Howden, Kristin, ‘The Common Law Doctrine of Extinguishment – More than a Pragmatic Compromise’ (2001) 8 206
Justin, Cook, ‘Indigenous Land Rights in 21st Century’ (2020) 26 99
Kate, Stoeckel, ‘Case Note- Western Australia v Ward & Ors’ (2003) 25(2) 12 255
Kramer, Jilian, ‘(Re)Mapping Terra Nullius: Hindmarsh, Wik and Native Title Legislation in Australia’ (2016) 29(1) international Journal for the Semiotics of Law 191
Nettheim, Garth and Heather McRae, Indigenous Legal Issues: Commentary and Materials (Thomson Reuters, 4th ed, 2009)
Shuannagh, Dorsett, ‘Clear and Plain Intention : Extinguishment of Native Title in Australia and Canada Post WIK’  Griffith Law School
Strelein, Lisa, Compromised Jurisprudence : Native Title Cases Since Mabo (Aboriginal Studies Press, 2010)
Banjima People v Western Australia [No 2] (2013) 2013 ALR FCA 868, 305
 Samantha Hepburn, ‘Statutory Interpretation and Native Title Extinguishment : Expanding Constructional Choice’ (2015) 38(2) UNSWLawJI 20 587.
 Garth Nettheim and Heather McRae, Indigenous Legal Issues:Commentary and Materials (Thomson Reuters, 4th ed, 2009) .
 Stoeckel Kate, ‘Case Note- Western Australia v Ward & Ors’ (2003) 25(2) 12 255.
 Brendan Edgeworth, ‘Extinguishment of Native Title: Recent High Court Decision. (Australia)’ (2016) 8(22) 34.
 Cook Justin, ‘Indigenous Land Rights in 21st Century’ (2020) 26 .
 Edgeworth (n 4).
 Nettheim and McRae (n 2).
 Samantha Hepburn, ‘Statutory Interpretation and Native Title Extinguishment : Expanding Constructional Choice’ (2015) 38(2) UNSWLawJI 20 587 citing Native Title Act case (1995) 183 CLR 373.
 Nettheim and McRae (n 4) .
 Banjima People v Western Australia [No 2] (2013) 2013 ALR FCA 868, 305 .
 Hepburn (n 6) citing Native Title Act case (1995) 183 CLR 373.
 Ibid.citing A-G (Canada) v Hallet & Carey Ltd  AC 427 
 Kristin Howden, ‘The Common Law Doctrine of Extinguishment – More than a Pragmatic Compromise’ (2001) 8 206.
 Hepburn (n 1).
 Ibid.Citing Kent McNeil, ‘Racial Discrimination and Unilateral Extinguishment of Native Title’ (1996) 1 Australia Indigenous law reporter 181.
 Nettheim and McRae (n 2).
 Lisa Strelein, Compromised Jurisprudence : Native Title Cases Since Mabo (Aboriginal Studies Press, 2010).Citing Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 442.445-5
 Jeremie Gilbert, ‘Historical Indigenous Peoples’ Land Claims : A Comparative and International Approach to the Common Law Doctrine on Indigenous Title’  Cambridge University Press.
 Howden (n 14).
 Howden (n 14).
 Sean Brennan, ‘Native Title in the High Court of Australia a Decade after Mabo’ (2003) 14 PLR 209 .
 Ibid .
 Howden (n 14).Citing Bartleet, Mabo : Another Triumph for the Common Law (1993) 15(2) Sydney law review 178 ; N Pearson, ‘From Remnant Title to Social Justice’, in M Groot and T Rowse (eds) Making a better offer, Pluto Press, Sydney, 1994, p 179
 Dorsett Shuannagh, ‘Clear and Plain Intention : Extinguishment of Native Title in Australia and Canada Post WIK’  Griffith Law School .
 Justin (n 6).Citing Larissa Behrendt, ‘Finding the Promise of Mabo :Law and Social Justice for First Australians’ Queensland Human Rights Commission (Web Page, 2007)4
 Jilian Kramer, ‘(Re)Mapping Terra Nullius: Hindmarsh, Wik and Native Ttitle Legislation in Australia’ (2016) 29(1) international Journal for the Semiotics of Law 191.