Explain how Australian law has recognised native title and land rights, and evaluate how well the law protects the rights of Aboriginal and Torres Strait Islander peoples.

What this dot point is asking

You must explain how native title was recognised, the key cases and legislation, and evaluate how well the law protects Aboriginal and Torres Strait Islander land rights.

The Mabo decision

For most of Australian legal history the land was treated as terra nullius, meaning that it belonged to no one at settlement and that Aboriginal and Torres Strait Islander peoples held no recognisable property rights. In Mabo v Queensland (No 2) (1992) the High Court rejected terra nullius and held that native title survived British settlement where Indigenous people had maintained a continuing connection to the land and where that title had not been extinguished by valid government action.

The Native Title Act 1993

Following Mabo, parliament passed the Native Title Act 1993 (Cth) to create a national framework. The Act established processes for making and determining native title claims, set up the National Native Title Tribunal, and created the right to negotiate over certain future dealings with land. It aimed to provide certainty for landholders while recognising native title.

The Wik decision

A key question after Mabo was whether native title could survive on land subject to a pastoral lease. In Wik Peoples v Queensland (1996) the High Court held that native title and pastoral leases could coexist, and that a pastoral lease did not necessarily extinguish native title. Where the two conflicted, the rights of the leaseholder prevailed. This decision was politically controversial and led to amendments to the Native Title Act in 1998.

Land rights compared

Land rights are different from native title. Land rights are grants of land made by specific legislation, such as state and territory land rights statutes, often as a form of compensation or recognition. Native title arises from traditional connection recognised by the common law and the Native Title Act. Both protect Aboriginal and Torres Strait Islander interests in land, but they have different legal sources and tests.

How well does the law protect these rights?

This is the evaluative part of the dot point.

Arguments that the protection is significant include the rejection of terra nullius, the legal recognition of continuing connection, and a national process for claims. Arguments that protection is limited include the difficulty and cost of proving continuous connection, the fact that native title can be extinguished by past valid grants, the long delays in claims, and that where interests conflict native title usually yields. These limits connect to the tension between the empowered and the disempowered.

Connection to the rest of the course

Native title links to the origins of Australian law, the role of the High Court, rights protection and law reform. It is a leading example of the legal system correcting historical injustice and of the interaction between common law, statute and contemporary community values, making it a popular focus for the independent inquiry.