Analysis of Aboriginal Native Title Rights in Land Law

This essay examines the native title rights of Aboriginals in Australia, focusing on the legal principles and landmark cases that define these rights. It begins by analyzing the concept of native title and its evolution, starting from the rejection in the Milirrpum v Nabalco Pty Ltd case and highlighting the shift towards recognizing these rights. The essay addresses the specific issues of Anna's native title claims over land bought by her grandfather and the impact of a pastoral lease on these rights. It delves into the concept of fee simple, exploring the transferability of land ownership and the connection between Anna and the land. The analysis covers key cases such as Mabo v Queensland (No. 2), which overturned the terra nullius doctrine, and Wik Peoples v Queensland, which addressed the co-existence of native title rights and pastoral leases. The essay concludes that while Anna retains exclusive native title rights over land inherited through fee simple, her rights on the leased land are non-exclusive, subject to the terms of the pastoral lease and the potential for conflict of rights. The essay provides a comprehensive overview of the complex interplay between property rights, land law, and Aboriginal native title claims in Australia.

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Native Title Rights of Aboriginals
Student Name
Institutional Affiliation

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Table of Contents
Introduction................................................................................................................................3
Issues..........................................................................................................................................3
Rules applicable.........................................................................................................................3
Analysis......................................................................................................................................3
Conclusion..................................................................................................................................6

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Introduction
This essay will focus on the “native title rights” of aboriginals in Australia. The article will
look at precedent cases on native titles. The first case on aboriginal native title in Australia
was “Milirrpum v Nabalco Pty Ltd” in 1971. In the Nabalco case, the concept of native title
was explicitly rejected by Justice Richard Blackburn. The Judge upheld the doctrine of terra
nullius (inhabited land belongs to no one).1 However, several courts have departed from this
decision; therefore, this essay will not base its evidence on the Nabalco case.
Issues
The first question is whether Anna has native title rights on the piece of land bought by her
grandfather (John Donne). If so, what type of rights does she own?
Secondly, does the pastoral lease stub out native title rights on the part of the land?
Rules applicable
 “Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of
Australia [2013] HCA 33”
 “Coe v Commonwealth [1979]”
 “Kogolo v State of Western Australia [2007]”
 “Mabo and others v. Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 F.C.
92/014 (3 June 1992)”
 “Mabo v. Queensland (No. 1) [1988] 166 CLR 186 F.C. 88/062” “Milirrpum v Nabalco Pty Ltd [1971] 17FLR 141”
1 Milirrpum v Nabalco Pty Ltd [1971] 17FLR 141

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 “Ward v Western Australia [1998]”
 “Western Australia v Ward [2002]”
 “Wik Peoples v Queensland [1996]” “Yorta Yorta v Victoria [1998]”
Analysis
Indigenous title rights can be defined as the “bundle of rights” indigenous Australians have
over land. In the process of determining a native title claim, not all the rights are
automatically granted.2 Some rights are extinguished depending on the case basis and the
native laws and customs. In “Coe v Commonwealth [1979]”, the plaintiff brought an action in
court requesting it to recognize the rights of aborigines since they were there before the
Whites settled in Australia. Chief Justice Gibbs rose the question of what are the rights
owned by aboriginal people? The claim was rejected since it was lucid, dispassionate and not
in proper form. However, it can be interpreted from the case that it is possible to bring a
claim on native title rights provided it is not self-deficient.3 This case opened doors to native
title rights’ suits.
What rights does Anna have over the 200 acres of land bought by John Donne? The land was
purchased on a fee simple interest which, therefore, makes it a freehold title. In freehold
titles, the owner exercises absolute ownership without restrictions and has total control for
life. That means that the title can be transferred to the owner’s descendants. John did not
purchase a conditional freehold, which, therefore, means that the land was legally acquired by
Andrew and can be transferred to Anna upon Andrew’s death. The decision in the Nabalco
case would have granted the land back to the Crown. However, the court in the Mabo v
2 Nativetitle.org.au. (2019). Native title, rights and interests | Prescribed Bodies Corporate. Available at:
https://www.nativetitle.org.au/learn/native-title-and-pbcs/native-title-rights-and-interests [Accessed 26 Sep.
2019].
3 Coe v Commonwealth [1979]

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Queensland (No. 1) [1988] held that the native title rights existed where there is a link
between the people and the land and where there is not legislation that extinguishes the
aboriginal right to the land.4
In the case of legislation, however, there are circumstances that government legislation might
not overhaul native title rights; an example is the case of “Akiba v Commonwealth of
Australia [2013]”, where the court held that State Legislative Regimes did not stub out native
title rights, but merely regulated them.5 In Anna’s case it is possible to note that the land was
initially owned by her grandfather (John Donne), later passed on to Andrew (Anna’s father),
and can then be passed down to Anna who is the immediate heir. Therefore, it is right to say
that there is a connection between Anna and part of the farm bought by John from the Crown.
Nevertheless, there is also no legislation in this case that extinguishes Anna’s native title
rights to the piece of land.
Moreover, the high court in the case of “Mabo v Queensland (No. 2) [1992]” overruled the
terra nullius doctrine that was upheld in the Nabalco case. The Meriam people were duly
recognized as native title holders. The court also did away with the notion that the Crown had
supreme sovereignty over Australian land. The court also held that the Crown was not
responsible for granting native title. Justice Brennan ruled that native title has its origin that
only stops being effective if the link to the land is lost. According the Brennan, native title is
given by the traditional customs and laws acknowledged and observed by the aboriginal
people of Australia.6 The tradition in Anna’s case is that the land is to be transferred to the
surviving child (land inheritance). In “Kogolo v State of Western Australia [2007]”, the trial
4 Mabo v. Queensland (No. 1) [1988] 166 CLR 186 F.C. 88/062
5 Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33
6 Mabo and others v. Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 F.C. 92/014 (3June 1992)

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judge ruled that the decision in the Mabo case 2 determines a person’s land, based on the
customs and traditional laws and that that is how it has always been.7
In Yorta Yorta v Victoria [1998], Justice Olney laid off the claim by the Aboriginal people
citing that the precedent actions by the people had ruled off any possibility of
acknowledgment, application, and observance of the traditional laws and customs.8 The court
confirmed the necessity of traditions and traditional laws’ continuity to maintain a successful
claim.
The second part about Anna’s claim to the farm involves the leased piece of land. How does
pastoral lease or a lease in general affect native title rights? A pastoral lease title is issued by
the Crown for an area of land controlled by the crown.9 The land is issued for limited uses,
for instance, agricultural purposes or grazing of stock (just like it was issued to John Donne).
The rights attached to a freehold land are not applicable in a pastoral lease. The lease has a
time limit and the type of activities to be carried out on the land. In John’s case, the land was
leased for 75 years with an option of renewal (which was exercised by Andrew in 1964).
Some of the restrictions in John’s lease were:
 Lessee to open up the land to access for passage of people
 Lessor retains the right of accessing land at anytime
 Not transferring the lease or sub-leasing
 The lessor maintains right of sale, lease or disposal
However, native title rights can still co-exist with pastoral leases. The decision made in the
Mabo case created uncertainty on whether native title claims extinguish leases. The ruling in
7 Kogolo v State of Western Australia [2007]
8 Yorta Yorta v Victoria [1998]
9 Austrade.gov.au. (2019). Pastoral leases – Austrade. Available at:
https://www.austrade.gov.au/land-tenure/land-tenure/pastoral-leases [Accessed 26 Sep. 2019].

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“Wik Peoples v Queensland [1996]” cleared the doubt. According to the court, statutory
pastoral leases that are still under consideration by a court of law do not grant exclusive rights
of ownership to the leaseholder.10 The court also held that native rights and pastoral leases
could co-exist depending on the terms of the lease. However, where a conflict of rights arose,
the pastoral lease rights would traverse the native title rights. This, therefore, means that
Anna could acquire non-exclusive title rights provided that there is no conflict of rights. Non-
exclusive aboriginal title rights are rights that do not give the leaseholder the power to control
access to the land. The rights, however, still acknowledge the customs and traditions of
aborigines.
In “Ward v Western Australia [1998]”, the court ruled in favor of the plaintiff’s native title
rights and the defendant appealed.11 In the appeal, the High Court explained how aboriginal
rights could co-exist with a lease and the rights that are extinguished. In Western Australia v
Ward [2002], the court acknowledges how leases (mining lease in this case) can extinguish
native title rights. In particular, there was no conferment of exclusive possession in the
lease.12 However, only part of the indigenous rights was extinguished (right to access and
control land). In Anna’s case there was no conferment of exclusive possession to John.
Therefore, the pastoral lease extinguishes some of her native rights on the 100 acres of leased
land.
Conclusion
To conclude, it is evident that Anna will retain her exclusive native title rights over the 200
acres of land John Donne bought as land inheritance seems to be the custom in the family.
10 Wik Peoples v Queensland [1996]
11 Ward v Western Australia [1998]
12Western Australia v Ward [2002]

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However, for the 100-acre f land on pastoral lease, Anna will only get non-exclusive native
title rights.