Statutory Interpretation and Native Title Extinguishment: Expanding Constructional Choices

33 Pages Posted: 19 Jul 2017

See all articles by Samantha Hepburn

Samantha Hepburn

Deakin University, Geelong, Australia - Deakin Law School

Date Written: May 21, 2015


Native title jurisprudence is derived from the common law. The concept of native title and its re-institutionalisation into the underlying land law framework emanates from the conclusions of the High Court of Australia in Mabo [No 2]. This decision revised the architecture of the ownership framework underpinning Australian land law. The Court allowed native title rights and interests to be recognised in circumstances where they could be shown to have survived the impact of colonisation and the assertion of sovereignty by the United Kingdom. The conceptualisation of native title was given statutory validation in the Native Title Act 1993 (Cth) ('NTA'), which outlined the mandatory requirements for establishing native title rights and interests. The statutory validation of native title gave it a strong legislative foundation, and prompted the High Court to reify native title as a statutory rather than a common law concept.

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 the doctrine of extinguishment is sweeping. Native title rights and interests may be extinguished by the exercise of an inconsistent grant of sovereign power, whether the inconsistency is express or implied and whether it is manifest through the issuance of a specific grant or through legislative acts. Determining whether an exercise of sovereign power is consistent with the recognition of native title rights and interests is therefore the operational fulcrum underpinning the extinguishment process.

In this article, the scope and application of the statutory construction assessment that underlies the consistency evaluation is examined. The focus is upon legislation enacted prior to the Racial Discrimination Act 1975 (Cth) ('RDA') and the NTA because these Acts do not attract the NTA validation provisions and therefore must be assessed in accordance with common law processes. The primary contention of this article is that the interpretative strategy for determining the legislative intent of Acts predating the RDA and the NTA needs to be broadly purposive rather than textualist in orientation to ensure that a range of relevant inter-contextual factors and policies are properly considered. A purposive approach to statutory construction provides a more effective foundation for courts in evaluating the underlying objectives connected with the implementation of native title rights and interests. This is despite the fact that their recognition postdates the implementation of the Act under consideration in a particular case.

Suggested Citation

Hepburn, Samantha, Statutory Interpretation and Native Title Extinguishment: Expanding Constructional Choices (May 21, 2015). University of New South Wales Law Journal, Vol. 38, No. 2, 2015, Deakin Law School Research Paper No. 17-08, Available at SSRN:

Samantha Hepburn (Contact Author)

Deakin University, Geelong, Australia - Deakin Law School ( email )

221 Burwood Highway
Burwood, Victoria 3125, Victoria 3125


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