LAWS20009 Lecture 4: NATIVE TITLE, ABORIGINAL HERITAGE & ENVIRONMENTAL PROTECTION
LECTURE 4: NATIVE TITLE, ABORIGINAL HERITAGE &
ENVIRONMENTAL PROTECTION
• Common Law: combination of case law and legislation (statutes/Acts),
adversarial, body of precedent, reliance on oral testimony
o Importance of written and unwritten law seen in Indigenous
proceedings in Australia
o Our legal system, important in acknowledging how and why native
title was recognised
• Civil Law: codified laws (codes), inquisitorial, greater use of evidence provided
in writing
Origins of Property Law in Aus
• For the purpose of law, deemed uninhabited, with no civilisation
• 3 ways of acquiring territory to the British (at time of 1788): settle a place,
concur or succession
o Australia was understood to be settled – all laws of the settler
became laws of the new land
• Australia received its law from England in 1788 – presupposing Australia was
lawless beforehand
• Indigenous customary legal systems entirely ignored, resulting in displacement
of this operating’s in Aus legal system since 1788 – believed it did not exist
NATIVE TITLE
What is Native Title?
• Do not look like property rights, no universal NT rights, rights are defined on a case basis
• Never include exclusive possession, of a communal nature, never an individual nature
• Generally, they are rights & interests traditionally held by ATSI people in accordance with their customs, laws or practice
and that have not been extinguished by abandonment or removal
• Extinguishment occurs where native title cannot exist with other uses or grants of rights to that land
o Freehold land where someone has built a house
o Land where a mine has been dug out
• Use of land in a way that does not preclude the exercise of enjoyment of native title rights will not extinguish (Wik, 1997)
• Native title rights: need to talk about in terms of USE
• No common law property rights of trespass etc. on native title landholdings
Native Title Act 1993 (Cth)
• Section 223:
o The expression native titles or native title rights and interests means the communal, group or individual rights
and interests of ATSI in relations to land or waters
• Must be traditional and customary, traditions and customs must still be observed and connected with place
• Native Title rights lost as soon as customs stop being observed, continuity of practice
• Sets out: the proceedings for gaining native title, ways native title can be extinguished, tribunal etc.
Lecture Overview
• Recapping Australia’s legal history
– Terra Nullius
• Mabo and the origins of Native
Title
• Native Title Act 1993 (Cth) and key
elements of Native Title –
requirements of
tradition/continuity
• ‘Future acts’ and the rights of
native title holders
o Rights to negotiate
o Indigenous Land Use
Agreements (ILUAs)
• Cultural heritage laws
• The relationship of Indigenous
interests & environmental
concerns
Mabo v Queensland (No 2) (1992) 175 CLR 1
• Emergence of Native Title rights, recognised for the first time
• Mabo decisions rejected the idea that Australia had been ‘Terra Nullius’ when British settlers arrived in 1788
• Case fought by a group of Torres Strait Islanders
• Argued that the Murray Islanders had a system of laws before the time they became part of Australia, and they
hadn’t been displaced when the islands did become part of Australia
• High Court agreed, yet Crown still owns the land, given a bundle of rights to use the land – different from freehold
and leasehold title rights
o Bundle of rights to sit alongside existing land laws
• Justice Brennan: laws imposed were discriminatory, needed to be changed
• Unable to retrospect a legal system based on discrimination from 1788, instead we shall incorporate where we can
Document Summary
Common law: combination of case law and legislation (statutes/acts), adversarial, body of precedent, reliance on oral testimony. Importance of written and unwritten law seen in indigenous proceedings in australia. Terra nullius: mabo and the origins of native, our legal system, important in acknowledging how and why native. Civil law: codified laws (codes), inquisitorial, greater use of evidence provided in writing. For the purpose of law, deemed uninhabited, with no civilisation. Future acts" and the rights of native title holders: rights to negotiate. The relationship of indigenous interests & environmental concerns. Mabo v queensland (no 2) (1992) 175 clr 1. Justice brennan: laws imposed were discriminatory, needed to be changed: unable to retrospect a legal system based on discrimination from 1788, instead we shall incorporate where we can. Extinguishment occurs where native title cannot exist with other uses or grants of rights to that land. Freehold land where someone has built a house.
