The content of Native Title: Questions for the Miriuwung Gajerrong Appeal

This paper considers the distinction between possessory Native Title and the exercise of Native Title rights as referred to by Lee J in Ward v Western Australia. Part of the international development of Native Title under common law, the primacy of the communal title arguably protects against partial extinguishment and invalidates the ‘bundle of rights’ argument.

This paper examines two questions that must be considered by the High Court in relation to the appeal from the full Federal Court decision in . First, what are the general parameters of the ‘content’ of Native Title: must each and every right be proved by reference to a particular customary use of the land or does possessory Native Title confer a generally unencumbered right to use the land as Native Title holders see fit to support their economic and cultural development, as well as diminished sovereign rights to manage the land. (As part of this question it is important to consider the distinction between possessory Native Title and the exercise of individual Native Title rights, as well as what management powers may adhere to the exercise of these individual rights.) Second, it is necessary to consider what is meant by the rule that the pre-existing laws are recognised by the new sovereign until affirmatively changed.