| Native title | High Court decisions |
On 3 June 1992, the High Court of Australia delivered its historic judgement in the case of Mabo v. the State of Queensland (No. 2) (1992) 1 75 CLR1, declaring that the common law of Australia recognised native title.
The Mabo judgement altered some of the basic premises of our legal system and our society, specifically the legal fiction of terra nullius (a land belonging to no-one).
While the concept of indigenous property rights pre-existing and surviving the establishment of sovereignty in colonised lands has existed in British common law for well over two centuries, and had been long recognised in other former British colonies, such as New Zealand, Canada and the United States of America, the High Court Mabo decision was the first acknowledgment of the legitimacy of indigenous property rights in Australia.
The High Court recognised that indigenous peoples' rights to native title had survived and that in accordance with the Racial Discrimination Act 1975, their native title must be treated equally before the law with other titles that flow from the Crown.
The High Court said that native title could no longer be denied or removed for reasons that were unjust - such as on the basis of race. Native title is defined in s.223 (1) the Native Title Act 1993 as:
"the communal, group or individual rights and interests of Aboriginal people or Torres Strait Islanders in relation to land or waters where:
the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal people or Torres Strait islanders; and b) the Aboriginal people or Tortes Strait Islanders, by those laws and customs, have a connection with the land and waters; and c) the rights and interests are recognised by the common law of Australia."
Where does native title exist?
The High Court did not say which parts of Australia are subject to native title or who holds native title over particular areas. However, general principles arise from the Mabo judgment which indicated that native title may still exist on Vacant Crown land,
state forests, national parks, public reserves, beaches and foreshores, land held by Government agencies, land held in trust for Aboriginal communities, and any other public or Crown lands.Native title may also exist in
oceans, reefs, seas, lakes, rivers, creeks, swamps etc, where those waters are not privately owned.Wik Judgement (1998)
The High Court's second defining decision on native title was the Wik judgement, handed down on 23 December 1998. The Wik judgement said that native title may survive on a pastoral lease if there was no clear intention to extinguish native title when the lease was granted.
The High Court said this was the case with the type of Queensland pastoral lease involved in the Wik peoples' native title application, but it did not decide whether native title actually existed. The court said pastoral lease rights prevail if they are inconsistent with native title rights. Native title cannot take away pastoralists' rights under the terms of their existing leases. Pastoral leases cannot be removed or taken over by native title holders or claimants.
The Wik decision means native title applications on pastoral leases will need to be determined on a case-by-case basis.
There are several types of pastoral leases under different legislation in each State and Territory. Any inconsistency between pastoral and indigenous rights will depend on the relevant State or Territory Land Act under which the lease is granted, the term of the lease, and the extent of native title rights and interests being asserted.
What about other peoples' rights ?
Native title cannot remove other peoples' existing rights if they were validly granted.
For example, native title cannot take over valid grants of freehold land such as for privately owned homes, backyards or other private property such as farms, commercial or residential land.
How is native title extinguished?
Native title is extinguished by valid grants of land or waters to people other than native title holders in ways that exclude indigenous people from having co-existent rights to the same land or waters.
Under the amended Native Title Act 1993, native title is extinguished by: