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most important questions faced by the court in Mabo (No. 2) was whether these events had had the effect of extinguishing Aboriginal rights.

4.5.3.3. Extinguishment

The court was divided on this issue. They all agreed that those rights that survived annexation continued to be enforceable unless and until extinguished by one of four events.

Express extinguishment

They all agreed that the rights could have been taken away by the state on or just after annexation by the state expressly declaring them to be extinguished, but equally all agreed that this had not happened.

Implied extinguishment by inconsistent grant

They also all (apart from Toohey J) agreed that Aboriginal rights were extinguished by the Crown either granting inconsistent property rights to others, or taking inconsistent property rights for itself. However, while a bare majority took the view that this was a lawful (if not morally justifiable) extinguishment of Aboriginal rights (Brennan J at paragraphs 81–2; Mason CJ and McHugh J agreeing at paragraph 2; and Dawson J, who dissented on the main point but agreed that, if he was wrong and Aboriginal rights had survived annexation, they would have been extinguished by inconsistent grant), the minority disagreed (Deane and Gaudron JJ at paragraphs 23–4, 29–30 and 60). They took the view that, although the government had the power to extinguish Aboriginal rights in this way, they did not have the right to do so. In other words, Aboriginal rights were effectively extinguished by the government making inconsistent grants, but the government committed a legal wrong in doing so, and consequently any such extinguishments gave rise to a claim in compensation. This consequence flowed from the view taken by these judges that Aboriginal rights are personal rights only and not property rights (this is a point we return to in the next chapter). Toohey J agreed that extinguishment by the government was unlawful unless proper compensation was paid, but also considered that it was ineffective – so that past inconsistent grants made without compensation did not extinguish the rights, and gave rise to an entitlement to compensation in so far as they interfered with the exercise of the rights (Toohey J at paragraphs 121–7 and his conclusion at paragraph 128(3)).

Abandonment

In Brennan J’s view, the nature and content of each Aboriginal tribe’s rights in the land they used was to be determined ‘according to the laws and customs of the indigenous people who, by those laws and customs, have a connection with the land’ (paragraph 83(6)) (we consider further what this might mean in