Native title: history and conflict

Abstract

Introduction In Australian universities, property law is often taught in a way that excludes Indigenous perspectives of the land. This exclusion can even occur during weeks dedicated to native title. For this reason, it is important to stress that the law of native title is not the same thing as Indigenous land law or the law that was practised by Indigenous Australians prior to colonisation in 1788. Rather, native title is a peculiar body of Western jurisprudence that was first articulated in Australia by seven non-indigenous High Court judges in Mabo v Queensland (No 2) (‘Mabo (No 2)') and subsequently refined by the federal government in the Native Title Act 1993 (Cth) and the Native Title Amendment Act 1998 (Cth). The linguistic anthropologist Peter Sutton makes this point as follows: Native title rights are rights recognised by Australian law, not customary rights per se. … Native title rights are products of a process in which evidence about indigenous cultural understandings and practices comes under legal scrutiny and is tested, usually by non-indigenous professionals. It is common for that body of information to be presented in the form of written and oral anthropological evidence, or anthropological evidence combined with that obtained directly from those whose native title application is being determined. One of the key organising ideas in this chapter is the tension between traditional land law and native title. This tension is examined through accounts of traditional law, drawing on both Indigenous accounts and anthropological evidence. Following this, is a description of the English law in Australia and some of the early attempts in Australian law to recognise the prior ownership of Aboriginal people. This narrative highlights the early land rights legislation and the social and political context that gave rise to the recognition of common law native title Mabo (No 2). After considering some of the reactions to Mabo (No 2), the chapter looks at the way native title was defined in the Native Title Act 1993 (Cth) and how the Act represents a further movement away from traditional law and provides successful claimants with very limited rights. The next issue examined is whether native title has equal or lesser status to Western property rights. This discussion encompasses a close look at pastoral leases and the decision in Wik Peoples v Queensland.