Ever since Mabo (No 2) (1992) 175 CLR 1, Australian land law has been tethered to two irreconcilable propositions:

1. Indigenous rights pre-dated and survived British sovereignty (Mabo per Brennan J at [63]–[64]).

2. Those rights are extinguished by any inconsistent grant of private title (Native Title Act 1993 (Cth) s 15; Fejo v Northern Territory (1998) 195 CLR 96).

The first is a philosophical assertion of prior title. The second is a legislative override that renders the philosophy inert wherever modern Australia actually exists. The result is not a coherent system of property law; it is a doctrinal oxymoron sustained by political expediency and judicial contortion.

Mabo's Radical Premise — and Its Logical Endpoint: Brennan CJ's reasoning in Mabo was uncompromising: "Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants… It is not a creation of the common law." ([66]) I will show by reductio ad absurdum that the chief Justice was incoherent on this issue.

If this is correct, private freehold cannot extinguish native title by mere inconsistency. A prior right cannot be nullified by a junior grant without compensation or consent. Yet that is exactly what the Native Title Act mandates:

• Section 11: Native title is extinguished forever by freehold.

• Section 15: No compensation for pre-1975 extinguishment.

• Fejo (1998): Even a temporary freehold grant kills native title permanently.

This is not so-called reconciliation. It is legislative reversal dressed as accommodation.

Parliament's Sleight of Hand: The Extinguishment Firewall: The Native Title Act is a statutory firewall erected to protect the Torrens system at all costs. It concedes the existence of native title in theory while confining it to the margins in practice:

Land Type Native Title Outcome Legal Basis

Freehold (urban/rural) Extinguished forever s 15, Fejo

Pastoral lease Extinguished to extent of inconsistency Ward (2002) 213 CLR 1

National park may coexist (co-management) s 211, ILUAs

Vacant Crown land Potentially claimable s 47B (limited)

The pattern is unmistakable: native title survives only where it inconveniences no one. It is a residual right, not a prior right.

Urban Mega-Claims: Symbolism Masquerading as Law: The Wurundjeri Woi-wurrung claim over metropolitan Melbourne is the logical endpoint of this incoherence. Legally, it must satisfy s 223(1):

1. Rights under traditional laws/customs still acknowledged and observed;

2. Substantially uninterrupted connection since 1835;

3. No extinguishment.

In a city of 5 million, founded 1835, freehold since 1840, and subjected to missionisation, assimilation, and urban sprawl, the evidentiary burden is Herculean. The High Court has already ruled:

• Yorta Yorta (2002) 214 CLR 422 at [89]: "The tide of history has washed away any real acknowledgment…"

• Risk (2002): A single generation's break severs continuity.

Yet the claim proceeds, not because the evidence is overwhelming, but because woke symbolism now trumps substance. The Federal Court will be asked to accept revived practices or spiritual connection as proxies for unbroken observance. Precedent says no. Politics says maybe.

The Reconciliation Class: Romantic Primitivism as Policy: The loudest advocates for expansive native title are rarely the traditional owners themselves. They are the urban commentariat, academics in Parkville, barristers in South Yarra, CEOs in Docklands, who own freehold in the claim area and face zero risk.

Their posture is romantic primitivism: Indigenous Australians as pre-modern stewards whose spiritual bond must be "recognised" in the CBD. This is not respect, it is woke projection. And, it ignores the actual priorities of Indigenous Australians:

Issue Indigenous Priority (ABS/NATSISS) Native Title Contribution

Life expectancy gap 8–9 years: None

Incarceration rate 13× non-Indigenous: None

Year 12 attainment 45% vs 80%: None

Remote housing overcrowding 40%+: None

Native title delivers ceremonial access to parks. It does not build a single classroom, clinic, or home.

A Coherent Alternative: Abandon the Doctrine: If prior rights are philosophically valid, extinguish them properly, with full compensation and consent. If they are not, repeal the fiction and fund practical outcomes:

1. Close the Gap via direct investment (health, education, housing).

2. Statutory co-management of Crown land without the evidentiary circus.

3. Voluntary land contributions from the reconciliation class (tax-deductible, of course).

Anything else is moral theatre, a doctrine that promises justice but delivers symbolism, protects property but pretends otherwise, and divides the nation under the guise of healing it.

Conclusion: The Courage to Move On; Native title is Mabo's ghost, a communist idea fuelled by political cowardice and inflated by romantic nostalgia. It is legally incoherent, practically marginal, and socially divisive.

Australia should bury the doctrine, repeal the Keating Act, and build the future:

• Health, education, jobs, safety.

• Equality under modern law.

• Reconciliation through outcomes, not gestures.

The past cannot be undone. The future can be built. Choose the future for all Australians, not a pocket of elites.