The Constitution specifies that property cannot be acquired by the Parliament of the Commonwealth without the payment of just terms. The Court has in the past rigorously insisted upon "just terms". The Parliament is denied the right to determine what constitute just terms. The High Court is the arbiter (Lumb 1984:1685.)
The issue of compensation for the present landowner where a claim was made on the basis of the native title under Mabo was not analysed in Mabo. There would have been no acquisition by the Commonwealth Parliament.
But should the High Court have more power than Parliament? If the Commonwealth Parliament had legislated in the same terms as the principles enunciated in Mabo, just terms compensation would have been necessary. But yet the High Court Mabo Edict does not envisage compensation. Is the High Court more powerful than Parliament? Should it be more powerful than Parliament?
If the Commonwealth Parliament legislates in the context of the Mabo decision the question will arise depending on the nature and the content of the legislation, whether there has been an acquisition in terms of the Constitution, requiring just terms.
But if the High Court recognises an implied right to private property as a logical extension of its concern for freedom articulated in the above cases, this should have important implications for Mabo.
Apart from the constitutional protection of just terms, the question must arise whether the High Court will recognise a right to property. The question was not discussed in Mabo.