| Native title | History |
Since before European settlement
Native title is the name given to the traditional land system of indigenous Australians which was developed over thousands of years.
Unlike 'land rights', which are created by governments, 'native title' is a right that existed before the coming of the Europeans to Australia.
High Court judgements
Although native title has been recognised by other countries with similar legal systems to Australia, such as the United States of America, Canada and New Zealand, it was only recognised in Australia in 1992 when the High Court of Australia delivered its judgement in the Mabo case (3 June 1992).
Before that, the the legal fiction of terra nullius (that the land of Australia belonged to no one) had prevailed since the arrival of the British settlers in 1788.
The Mabo judgement found that native title did exist in 1788 and may continue to exist provided it had not been extinguished by subsequent acts of government and provided indigenous groups continue to observe their traditional laws and customs in association with those lands.
In a later case known as the Wik Judgement (December 1996), which decided an issue left unresolved by the Mabo Judgement, the High Court of Australia determined that native title could coexist with other rights to land, such as pastoral leases.
Common law
The concept that indigenous property rights pre-exist and survive the establishment of sovereignty in colonised lands has existed in British common law for well over two centuries. It applies in places where indigenous people live according to their own system of laws that address property and other rights.
Other former British colonies, such as New Zealand, Canada and the United States of America, have long recognised that two land tenure systems exist in their countries:
the system introduced on colonisation - from which freehold and leasehold titles arise; and the pre-existing indigenous system - from which indigenous property rights derive.