Losing Sight of the Big Picture: the Narrowing of Native Title in Australia

Volume 36, No 1
Sky Mykyta

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Native title was recognised at common law in Australia by the High Court in the seminal Mabo v. Queensland [No 2] (1992) deci­sion. In 1993, the Australian Federal Government enshrined native title in legisla­tion (Native Title Act 1993 (Cth)). Recently, the High Court has held that the Native Title Act takes precedence over the common law in determinations of native title. This paper argues that the recent constructions of the definition of native title depart too much from the aim of recognising native title: that is, land justice for lndigenous people in Australia. The definition as it stands requires courts to particularise native title rights and interests in detail placing too heavy an eviden­tial burden on lndigenous peoples. Furthermore, the process requires Australian judges to interpret and apply lndigenous laws and customs, leading to inconsistent and some­times culturally damaging results. In particu­lar, this paper explores these issues through a focus on the recent Full Federal Court decision, De Rose v. South Australia (2003). Canadian law on aboriginal title is used as a counterpoint in this examination of Australia s present direction.

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