Native Title

Native Title is the common law recognition that Indigenous people have certain rights over land, due to their connection to that land because of their local customs and spiritual practices. Previously, there were limits around Native Title, according to the Mabo decision by the High Court. However, a recent High Court decision has lifted this, and has found that the Commonwealth Government is liable to pay compensation to an Indigenous community for their lost Native Title rights because of a mining lease on the land. This decision has also changed the understanding of the type of rights held under Native Title. Previously, it was been defined as a ‘bundle of rights’ (such as the right to camp, hunt, fish, teach culture etc.). Native Title has now been recognized as ‘property’, which requires the Commonwealth to pay “just terms” compensation for using the land.

The Majority of the Court argued that this was a necessary change to “bring the common law into conformity” with the “values of justice and human rights, which are aspirations of the contemporary Australian legal system.” Justice Steward dissented, and argued that the extinguishment of Native Title for the purpose of mining leases does not sever Indigenous people’s connection to the land, but instead only withholds their enforcement of certain rights in relation to that property.

This decision will have sweeping implications for the validity of historic grants of land that purport to extinguish Native Title, based on the precedent set that found that the land of the Yolngu tribe had been acquired on unconstitutional grounds.

‍