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
For more see:
are Native Title Rights?
do Native Title and Land Rights differ?