Property Law: Native Title, Legal Framework, and Challenges

This essay provides a comprehensive overview of Native Title in Australian property law, starting with a definition and historical context. It examines the landmark Mabo v Queensland (No 2) [1992] case and the subsequent Native Title Act 1993. The essay explores the legal definitions of Native Title, including the conditions for its survival after the claim of sovereignty, as established in the Mabo case. It discusses the requirements for establishing native title, focusing on the importance of traditional laws and customs and continuous connection with the land, as highlighted in cases like Members of the Yorta Yorta Aboriginal Community v Victoria and Western Australia v Ward. The essay also addresses the significant issues surrounding Native Title, such as the challenges claimants face in proving their rights, particularly in areas with intensive European settlement, and the criticisms of the Native Title Act, including the difficulty and expense for Indigenous communities in establishing their claims. The essay concludes by highlighting the potential impediments to successful claims due to the stringent evidentiary requirements.

Running head: PROPERTY LAW
Property Law
Name of the Student
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Table of Contents
Native Title......................................................................................................................................2
An Overview....................................................................................................................................2
Position of Native Title in Legal property definitions.....................................................................2
Issues surrounding the Native Title.................................................................................................4
Reference List..................................................................................................................................6

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Native Title
An Overview
Native title is a form of property right to land, which lays the foundation of the culture,
religion and well-being of the indigenous group of people. The landmark case for the Australian
native title was Mabo v Queensland (No 2) [1992]1 and subsequent to the statutory recognition
of the statutory concept native title in Mabo, the Keating Government made the recognition
official with the enactment of the Native Title Act 1993 by the Australian Parliament2. In the
Mabo case, the High Court established that the pre-existing rights and interest of the Aboriginal
and Torres Strait Islander people to land survived the claim of sovereignty made by the Crown.
Position of Native Title in Legal property definitions
Brennan J in the Mabo case laid down the conditions that must be established for
survival of native title after the sovereignty claim. The conditions were that native title would
survive after sovereignty under circumstances where:
 a group has persistently observed and acknowledged all the customs and traditional
establishing their consistent maintenance of traditional connection with the land; and
 their traditional connection with the land has not been subdued by the exercise of the
valid sovereign power.
Nevertheless, if any such observance or acknowledgement of the traditional customs of the
aboriginals is ceased to be maintained, the claim of native title shall be considered as withdrawn.
1 [1992] HCA 23.
2 Native Title Act 1993.

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In Members of the Yorta Yorta Aboriginal Community v Victoria3, conditions to determine
native title under section 223(1) of the Native Title Act was construed in the light of proposition
that the term ‘tradition’ referred to the laws and customs that were passed from the ancestors of
the aboriginals from generation to generation. The rights and interests under such laws and
customs has been existing without any interruptions since sovereignty. In the absence of
evidence of such uninterrupted observance of traditional laws and customs, it shall not be
considered as traditional.
In Western Australia v Ward4, the High Court held that as per section 223(1) (a) of the
Native Title Act, it is important to identify the traditional laws and customs and the rights and
interests possessed under such laws and customs. This is because the rights and interest
possessed by the claimants must have their origin from such traditional laws acknowledged and
the traditional customs observed by the aboriginals. In Bodney v Bennell5, the court held that the
aboriginals must have had continuous connection with the land and water as per the laws and
customs acknowledged and observed by their ancestors since sovereignty.
In the Yorta Yorta case, the High Court further held that the rights and interests
possessed by the aboriginals must be recognized by the Common law. In order to determine the
claimed rights and interest are recognized by the Common Law, the consistency of the rights and
interests shall be examined with that of the Common Law. In case it is consistent, the holder of
the rights and interests shall be entitled to remedies to exercise such rights and interests over the
claimed land and waters otherwise, the recognition shall be withdrawn.
3 HCA 58, (2002) 214 CLR 422.
4 HCA 28 (2002) 191 ALR 1.
5 [2008] FCAFC 63.

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Issues surrounding the Native Title
After the recognition of the concept of native title in the Mabo case, the Native Title Act
was enacted wherein section 223(1) was incorporated to determine native title. As discussed
above, the definition necessitates that the native title claimants must establish that they possess
rights and interests over the land and waters under the traditional laws and customs observed by
them. They must establish they maintain a connection with the land or waters based on the rights
and interest they have acquired from their traditional laws and customs which must be
recognized by the Common Law6. The term ‘traditional’ law or custom implied the customs or
laws that have been passed from one generation to another in a society that were observed by
their ancestors at the time of sovereignty.
The most significant issue that arises with respect to the conditions set out under section
223(1) of the Native Title Act is relating to the fact that it may be difficult for the claimants to
establish their native title especially over the land or waters where the Europeans had settled
intensively. The issue has been established in the Yorta Yorta case where the claimant failed to
adduce sufficient historic and oral evidence that were mandatory to establish the claim of native
title over the land or waters. The Native Title Act was enacted for enabling the aboriginals to
negotiate and resolve their issue related to the recognition of the community and their rights and
interests over the land and water.
In the Members of the Yorta Yorta Aboriginal Community v Victoria7, the people
claimed native title to an area of water and land in the Northern Victoria and Southern NSW.
The Federal Court dismissed their claim on the ground that they did not have adequate evidence
to support their claim and there is no evidence of their continual observance of their traditional
6 Native Title Act 1993.
7 HCA 58, (2002) 214 CLR 422.

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laws and customs, which is necessary to establish their native claims as per the conditions
stipulated under section 223 of the Act8. On appeal before the High Court, it upheld the
decision of the Federal court.
The statute has been subjected to criticisms for its requirement to establish the ongoing
connection of the aboriginals with respect to their land and water. This requirement has caused
various difficulties for them to establish their native title over the land and water where there has
been widespread urbanization and agricultural development. The statute has failed to consider
the fact that establishing a connection is expensive and often unaffordable for the aboriginals.
The statute merely requires evidence of continued observance of traditions and customs and
possession of land and water but fails to consider the fact that they were forcefully removed from
their traditional lands by the white invaders in wars, which makes it even more difficult for the
community to adduce sufficient evidence of their native title.
Therefore, as per the findings relating to dismissal of the native title claim in Yorta Yorta
case, it is evident that the conditions set out under the statute may make it difficult for claimants
to succeed in establishing their claim of native title. The evidence to establish the claim is being
placed to high, thus, impeding the aboriginals to establish their native claim.
8 Native Title Act 1993.

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Reference List
Bodney v Bennell [2008] FCAFC 63
Mabo v Queensland (No 2) [1992] HCA 23
Members of the Yorta Yorta Aboriginal Community v Victoria HCA 58, (2002) 214 CLR 422
Native Title Act 1993
Western Australia v Ward HCA 28 (2002) 191 ALR 1