Introduction

What's New in Native Title

What is Native Title?

Native title is the name given by the High Court to Indigenous property rights recognised by the Court in Mabo and Others v State of Queensland [No 2] (1992) 175 CLR 1 ('Mabo'). Native title is the recognition in Australian law that Indigenous people had a system of law and ownership of their lands before European settlement. The Mabo decision was the first recognition that those systems continue to exist and give rights to land that are protected through the common law in Australia. The Mabo judgment overthrew the legal fiction of terra nullius – that the land of Australia had belonged to no one when the First Fleet arrived in 1788.

The Court found that the rights of Indigenous peoples’ under their own law in relation to land were not destroyed merely by a change in sovereignty. Instead, Indigenous rights survived intact unless abandoned or surrendered by the people themselves, lost through extinction, or usurped by the colonial administration through clear and unambiguous legislation, or by inconsistent grant. The Mabo decision recognised Indigenous peoples' rights over their land, and also recognised the system of laws from which those rights are derived. Thus native title continues to exist where Indigenous groups continue to observe their traditional laws and customs and where it has not been extinguished by subsequent acts of government.

As a result of the Mabo decision, Aboriginal and Torres Strait Islander people can apply to the Federal Court to have their native title rights recognised under Australian law. Native title may still be recognised in relation to vacant Crown land, some state forests and national parks, public reserves, pastoral leases, beaches, foreshores and waters, government or other public land and Aboriginal land (under land rights legislation).

The native title of a particular group is defined by the traditional laws and customs observed by those people. Native title in each instance is recognised as having its source in, and deriving its content from, the laws of the Indigenous people. The rights and interests that are recognised as native title may vary from group to group, and may differ depending on what is claimed and what might be negotiated between all of the parties with an interest in the area under claim.

The Commonwealth’s Native Title Act 1993 ('NTA') is based on the findings of the Mabo decision.