Native title, or indigenous land rights, is a concept in Australian law that recognises the continued ownership of land by local Australian Aborigines or Torres Strait Islanders.
Native title can co-exist with non-indigenous proprietary rights and in some cases different indigenous groups can exercise their native title over the same land. In this way, it represents a local example of the fragmentation of proprietary interests. More particularly, it is also an example of two distinct systems of law operating within the same geographic, national and jurisdictional space. It is a recognition by the common law of Aboriginal law .
Mabo
The colonisation of Australia was conducted under the false assumption that the land was unoccupied (terra nullius) and could therefore be claimed for the Crown and distributed to colonists by the government. Only in 1992 was this assumption struck down by the High Court in the Mabo decision, which granted Murray Island in the Torres Strait to its native residents.
As Justice Brennan stated in Mabo (No. 2), "native title has its origin and is given its content by the traditional laws acknowledged by and the customs observed by the indigenous inhabitants of a territory".
Native Title Act 1993
As the legal concept of Native Title was not created directly by legislation, but by the judicial system, the Keating government later enacted the Native Title Act in 1993 to clarify the legal position of landholders.
Pastoral leases
The law was subsequently modified by the High Court's Wik Decision in 1996 and by further legislation (the Native Title Amendment Act) in 1998 which intended to grant better security of tenure to the holders of pastoral leases on potentially Aboriginal land.
The concept of land rights is independent of native title.
In a land rights claim Indigenous Australians can seek a grant of title to land from the Commonwealth, state or territory governments.
That grant may recognise traditional interest in the land, and protect those interests by giving indigenous people legal ownership of that land.
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