Recent developments in native title law and practice: Issues for the High Court

The common law recognition of Native Title in the High Court’s Mabo decision in 1992 and the Commonwealth Native Title Act has transformed the ways in which Indigenous peoples’ rights over land may be formally recognised and incorporated within Australian legal and property regimes. The process of implementation has raised a number of crucial issues of concern to Native Title claimants and other interested parties. This series of papers is designed to contribute to the information and discussion.

The range of questions about Native Title tends to increase, rather than subside, as our depth of experience with these matters develops. Basic issues about Native Title are still to be resolved and, as Basten concludes, the underlying principles of Australian property law are being reconsidered. This paper is arranged thematically around connection to country, content, extinguishment, and exclusive possession. National parks and reserves are commented upon. At the time of writing, two of the five cases discussed were reserved awaiting judgement: The Commonwealth v Yarmirr, which has subsequently been handed down; and, Ward v Western Australia, also known as the Miriuwung/Gajerrong Case. Anderson v Wilson was argued subsequently and is presently reserved. Special leave has been refused in DPP Reference No. 1,4 and granted in Yorta Yorta.