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The High Court’s 1993 Mabo decision and the Native Title Act 1993 (Cth) enable Aboriginal peoples and Torres Strait Islanders to seek the recognition in Australian law of rights arising under their traditional laws and customs in respect of land or waters, as native title. Native title groups may also seek compensation in certain cases for acts that have extinguished or otherwise affected their native title.
A determination of native title by the Federal Court requires proof of matters including the content of the relevant traditional laws and customs, the nature of the rights and interests, and the connection of the native title claim group with the land or waters by those laws and customs. Other matters to be addressed at trial include whether particular rights and interests are capable of being recognised by the common law, and whether valid laws or executive acts of the state or Commonwealth have extinguished native title such that it may not be recognised. Establishing native title also raises issues that are both theoretical and practical, such as the nature of ‘law’ and ‘tradition’, and the interaction between two systems of law.
Once native title is recognised, or a claim is registered, native title holders must engage with other elements of Australian law including state land management and resource extraction regimes, negotiate with other land users including mining companies, make and implement agreements, and manage the proceeds of those agreements using contemporary legal tools such as companies and trusts. Native title holders must manage their recognised native title rights and interests through a corporation that holds the native title on trust for them or manages it as their agent.
The lecturer has many years of academic scholarship in this area, engagement in law reform debates and providing practical, client-focused legal advice.
Principal topics include:
- Aboriginal and Western relationships with land: two systems of law
- Recognition of native title: the Mabo decision and the Native Title Act
- Proof of native title
- Native title practice: role and obligations of a lawyer for a native title group
- Decision-making by native title groups
- Extinguishment of native title
- Dealings with native title: future acts and agreements
- Alternative approaches to land justice in Australia
- Managing native title: commercial native title rights, tax, native title corporations, native title and land management, etc.
- Compensation for invalid acts affecting native title
- International and comparative approaches.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have an advanced understanding of the social, economic and cultural factors according to which Western and Aboriginal relationships with land have developed and are sustained
- Have an advanced and integrated understanding of the legal principles governing native title law and practice
- Have an advanced and integrated understanding of current issues arising in law and in practice in relation to native title
- Be able to critically examine, analyse, interpret and assess the effectiveness of these legal principles
- Be an engaged participant in debate regarding emerging and contemporary issues in the field
- Have a sophisticated understanding of the factors and processes driving proposals for lse reform in the area
- Have the cognitive and technical skills to generate critical and creative ideas relating to native title law and practice, and to critically evaluate existing legal theories, principles and concepts with creativity and autonomy
- Investigate, analyse, critically reflect on and synthesise complex information, problems, concepts and theories in the relevant field
- Have the communication skills to clearly articulate and convey complex information regarding issues arising in native title law and practice to relevant specialist and non-specialist audiences
- Be able to demonstrate autonomy, expert judgment and responsibility as a practitioner and learner in the field of the law regarding native title law and practice.
Last updated: 6 December 2019