Native Title and the 'Acquisition of Property' Under the Australian Constitution‪.‬

[The 'just terms' guarantee in s 51 (xxxi) of the Constitution offers protection for the property rights of Australians, but does this protection extend to indigenous people who have native title rights and interests in land? Gummow J of the High Court has suggested the answer is no, at least where native title is extinguished by the grant of inconsistent rights over the same land to third parties. This article reviews recent case law on the meaning of 'property' and 'acquisition' under s 51 (xxxi). The Australian law on native title--in particular its characterisation, its content and its extinguishment--is examined and assessed against the law on s 51 (xxxi). The conclusion drawn is that in general the extinguishment of native title answers the description of an 'acquisition of property'. Gummow J's analysis that native title is inherently defeasible, and therefore that the "just terms' guarantee does not apply to its extinguishment by inconsistent grant, should be rejected on the basis of precedent and principle.] I INTRODUCTION