5.3. Aboriginal land rights

174Property Law

and content of which is dictated by the laws and customs by which they consider themselves to be bound, and there can be no question of transfer of any of those rights outside the tribe, either to a member of another tribe or to anyone else. Native title is, therefore, wholly inalienable. The only form of alienation that he envisaged was surrender to the Crown, which would result in the extinguishment of the title.

5.3.3. Abandonment

Secondly, he said, if native title is defined by reference to the connection which a community has with a territory under the laws and customs by which it feels itself to be bound, it must follow that it will be lost if the community loses that connection to their territory. It will have lost that connection, in his view, if the community has ceased to acknowledge the relevant laws and (except in so far as impracticable) ceased to observe the relevant customs. Equally, the connection will be lost if the community itself has ceased to exist because the last of the members has died. Although Deane J and Gaudron J expressed reservations about this principle that native title is necessarily lost when the community’s traditional way of life is lost, it represents the majority view of the court in Mabo (No. 2) and again it has been confirmed by the Native Title Act 1993.

We have seen that this principle does not exist in English common law. English customary rights cannot be lost by non-user, nor (on the whole) can private property rights. It has proved to be controversial in Australia. First, there is the political problem of how to view a disintegration of a community, or an abandonment of its traditional way of life and its connection with its territory, where this was forced on it by the settlers. In the United States native title is not considered to be abandoned if the abandonment resulted from failure to resist white encroachment or from being forced onto a reservation (see Bartlett, ‘Humpies Not Houses’, p. 27). Secondly, there is an evidential problem. In Australia (unlike in Canada and in the United States, as Bartlett notes in the same article) the onus is put on claimants to prove that there has been no abandonment. This can be done only by proving continuity of the community and of its traditional way of life, and continued observance of its laws and customs. This perhaps explains the length and complexity of the proceedings now reaching the courts in Australia.

5.3.4. Variation

However, it seems that, in some respects at least, native title is more flexible than English customary rights. Brennan J envisages that it might change in content if the community adapts its way of life to meet changing conditions, although he appears to have in mind gradual evolutionary change rather than radical change: see paragraph 68 of his judgment. However, even this does not appear to be possible for English customary rights, as we saw in section 5.2 above. Probably of more practical significance is the confirmation in the Native Title Act 1993 that native title can be surrendered to the state in exchange for other rights, even private