Native Title and Land Rights

Native Title is the term used by the High Court of Australia to describe the common law rights and interests of Aboriginal and Torres Strait Islander peoples in land and waters according to their traditions, laws and customs.

In 1992 the High Court recognised, in the historic case brought by Eddie Koiki Mabo, that the Meriam people of Torres Strait had native title over their traditional lands. This decision overturned the idea that the Australian continent belonged to no one at the time of Europeans' arrival - the doctrine known as "terra nullius".

For the first time, the common law rights in land of Australia's indigenous peoples were recognised. The common law is the British system of law based on precedents set by previous decisions, and developed from customs and decisions over 800 years. Native title is not a new type of land grant but a common law right that pre-dates the European settlement of Australia.

The Mabo decision said that Aboriginal and Torres Strait Islander people who have maintained a continuing connection with their country according to their traditions and customs may hold native title. Proving a continuing connection usually involves showing that traditional laws and customs have been passed down through generations to the present day. However, where this connection is broken, or where other actions have taken away those rights (such as the issuing of freehold title over the land to another party), then native title is extinguished.

A second crucial decision was made by the High Court in 1996 in its "Wik" judgement in response to a case brought by the Wik Aboriginal people of Cape York Peninsula. Wik focused on pastoral leases in Queensland, but provided guidance concerning other types of title. The fundamental question at stake was whether the granting of a pastoral lease necessarily extinguished native title.

Under the common law, both "freehold" and "leasehold" title were seen as providing the holder with "exclusive possession", which according to Mabo extinguished native title. In the Wik decision, however, the majority of the judges held that while common law titles were reasonably common in England, they played very little part in Australian property law.

Instead most titles in Australia were granted under acts of parliament, or statutory law. Accordingly, when looking at the question of extinguishment of native title, it is necessary to look at both the legislation under which it was granted and the lease or title document that applied to the land in question. In the case of the Wik people, the lease in question was found not to have necessarily extinguished their native title.

For more see:

What are Native Title Rights?

How do Native Title and Land Rights differ?