Unit rationale, description and aim
Native Title arises from common law and is regulated by the Native Title Act 1993 (Cth), determinations reflecting 55 percent of Australia’s land area. In addition, in the Northern Territory, more than 50 percent of land and 80 percent of coastline is Aboriginal controlled pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Studying the Native Title Act inevitably involves an explanation of Milirrpum (the Gove Case), and the Land Rights Act noting inquiries, litigation, a Royal Commission and political responses to amend and override rights. Yet studying this field of Australian land law and Indigenous rights remains largely neglected.
This unit offers a clear understanding of Indigenous peoples’ rights to claim, negotiate, and seek compensation, and States’ power to deny, diminish and extinguish. Students will examine concepts of dispossession, “terra nullius”, extinguishment, exclusive possession, use and enjoyment. Students will analyse the claim process, roles of Native Title Representative Bodies and the National Native Title Tribunal. Integrated work-learning with such bodies may be sought as part of the law and double-degrees. The unit aims to provide students with historical and legal insight to native title as well as the necessary knowledge skills to seek employment in these organisations.
Campus offering
No unit offerings are currently available for this unit.Learning outcomes
To successfully complete this unit you will be able to demonstrate you have achieved the learning outcomes (LO) detailed in the below table.
Each outcome is informed by a number of graduate capabilities (GC) to ensure your work in this, and every unit, is part of a larger goal of graduating from ACU with the attributes of insight, empathy, imagination and impact.
Explore the graduate capabilities.
Evaluate Aboriginal and Torres Strait Islander con...
Learning Outcome 01
Analyse the history of the passing of native title...
Learning Outcome 02
Examine the roles of Native Title Representative B...
Learning Outcome 03
4. Evaluate legal principles and issues arising in...
Learning Outcome 04
Content
Topics will include:
- Two Systems of Law
- Protection and Recognition: Native Title Act 1993 (Cth)
- Political and Legislative Responses to Mabo
- Pastoral Leases and Equality: Wik
- Frozen rights: Denial of, retreating from and returning to Mabo and Wik
- Onerous Burden of Proof: Yorta Yorta
- Native Title in Urban areas
- Elements of a Native Title Claim
- Content and development of Native Title
- Making a claim: Extinguishment jurisdictions and right to negotiate
Assessment strategy and rationale
To pass this unit, students must achieve an overall minimum grade of pass (50%). Rubrics and feedback will be utilised to describe the standard of work expected.
Students will be expected to demonstrate learning outcomes through scaffolded oral and written activities. To assure assessment in the age of generative artificial intelligence, demonstrating learning outcomes will be integrated with supervised in-class interactive exercises, oral assessment and Cadmus for written assignments.
Task 1. In a brief verbal in-class presentation, students will articulate their ideas about key conceptions of native title in Australian common law. This will enable achievement of LO1.
Task 2. In an in-class interactive exercise, students will locate a court case to reflect upon the history of the passing of native title law and policy in Australia. Subsequently, students will write a case study contextualising their research with analysis and citations. This will enable achievement of LO2.
Task 3. In a research essay, students will reflect upon roles of Native Title Representative Bodies and the National Native Title Tribunal. The purpose is to develop an argument based on legal principles and issues arising in native title claims and their application in practice. This will enable achievement of all learning outcomes.
Overview of assessments
1. Seminar Presentat...
1. Seminar Presentation
Students are expected to participate in tutorials, whether in-person or online, recognising that pre-reading materials and preparation for tutorials contribute to quality group engagement and their own learning.
Assessment Method: Presentation - in-person or online (5 minutes, equivalent 800 words).
Students will present verbally to explain key concepts in Indigenous peoples’ rights to claim, negotiate, and seek compensation, and States’ power to deny, diminish and extinguish native title rights.
The purpose is to develop students’ knowledge and comprehension about Aboriginal and Torres Strait Islander conceptions of land in Australian native title law.
20%
2. Reflective Case Study In an in-cl...
2. Reflective Case Study
In an in-class interactive exercise, students will locate a court decision of relevance to the Native Title Act and explore historic legal principles.
Assessment Method: Reflective Report on a Court Case. (1000 to 1500 words)
In their subsequent written assignment, students will identify issues, undertake legal research, analyse the context and different values utilising a range of sources, and communicate their reflections.
The purpose is to develop personal reflective skills about Native Title in the context of different values, beliefs and relevant Indigenous peoples’ standpoint.
The purpose is to develop skills in critical reading, analysis across a range of sources (texts, sound, visual arts, audio-visual) and clear communication.
30%
3. Research Essay Students will synthesise an...
3. Research Essay
Students will synthesise and evaluate legal principles and issues arising in native title claims and their application in practice.
Students will be required to demonstrate their ability to critically analyse legal issues, legal history and concepts relating to elements of a Native Title claim.
Assessment Method: Research Essay (1500-2000 words).
The purpose is for students to develop skills that persuade readers of an idea based on evidence, to propose solutions and consider implications arising from Native Title claims.
Students will be expected to analyse a question, locate and reference research, organise their ideas, construct drafts, seek feedback, edit and, finalise citations in support of their argument.
50%
Learning and teaching strategy and rationale
This unit will be taught through lectures, tutorials, original sources, library research, use of audio and visual materials to hear Indigenous voices, presentations and scholarly debate as part of inquiry-based learning. Students will progress from inquiry (asking questions and gathering information) to analysis (breaking down information, identifying patterns, and evaluating evidence) to applied reflection in practical contexts. Their progress will be supported by scaffolding assessments, a structured path to develop their knowledge skills as they progress through the unit to develop their own conclusions. Accessibility and flexibilty in learning will be supported through different modes of delivery.
Lectures with audio and visual materials will provide support and structure for student research and investigation. Tutorials will start with proposing a research question, supported by in-class peer reflections. Students will formulate questions about the topic based on their research. Students will be encouraged to work independently and in small groups to evaluate credibility of the sources and evidence. Educators will faciltitate students as a group to reflect and apply their knowledge skills with a focus on “real world” cases. Students will be asked to critically reflect on their research findings addressing socio-economic inequality and rights of Indigenous peoples in an international context.
Representative texts and references
Legal Particulars
Note: Specialist printed materials will be made available free prior to the teaching period.
Select Case Law
Coe v. Commonwealth [1979] HCA 68, (1979) 24 ALR 118
Cooper v Stuart (1889) 14 App Cas 286.
"Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141". ATNS (Gove Land Rights case).
Advisory Opinion on Western Sahara, International Court of Justice 1975, “Terra Nullius”, passim.
Mabo and others v Queensland (No. 2) (Mabo No. 2) [1992] HCA 23, (1992) 175 CLR 1.
Western Australia v. Commonwealth, [1995] HCA 47, (1995) 183 CLR 373.
The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors, (1996) 187 CLR 1.
Members of the Yorta Yorta Aboriginal Community v Victoria, (2002) 214 CLR 422.
Griffiths v Northern Territory of Australia (No 3), 2016 FCA 900
Galarrwuy Yunupingu (On Behalf Of The Gumatj Clan or Estate Group) v Commonwealth of Australia (Gove Compensation Claim) NTD43/2019.
Statutes
Aboriginal Land Rights (NT) Act 1976 (Cth).
Native Title Act 1993 (Cth),
Representative texts and references
Australian Law Reform Commission, Recognition of Aboriginal Customary Laws. ALRC Report 31, 1986.
Bartlett, Richard. ‘Dispossession by the National Native Title Tribunal’ (1996) 26 University of Western Australia LR 108.
Bartlett, Richard et al, Essays on the Mabo Decision (Law Book Company Limited, 1993)
Bartlett, Richard. Native Title in Australia. Sydney: LexisNexis Butterworths, 2020, 4th edition. (Available online)
Bartlett, Richard. ‘The Wik Decision and Implications for Resource Development’ (1997) 16 AMPLJ 27.
Blowes, R. ‘Governments: Can You Trust Them With Your Traditional Title?’ (1993) 15 Sydney LR 254
Brennan, Mabo Background article 1993
Butt, Peter, Robert Eagleson and Patricia Lane. Mabo, Wik and Native Title (The Federation Press, fourth edition, 2001)
Dodson, M. Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report, January–June 1994, 1994–95, 1995–96, 1996–97 reports, Human Rights and Equal Opportunity Commission
French, Justice R. S. "Lifting the Burden of Native Title: Some Modest Proposals for Improvement"(2009) 93 Reform 10 (Native Title), Australian Law Reform Commission, proceedings of the Native Title User Group, Adelaide, 9 July 2008.
French R. and P. Lane. "The Common Law of Native Title in Australia" (2002) 2 Oxford University Commonwealth Law Journal 15.
French, R. ‘The Role of the High Court in The Recognition of Native Title’ (200) 30. University of Western Australia LR 129.
Gammage, Bill. The biggest estate on earth: how Aborigines made Australia. Crows Nest, N.S.W. : Allen & Unwin, 2011, 2012.
Haughton, James. “An unsettling decision: a legal and social history of native title and the Mabo decision”, Research Paper. Parliamentary Library, December 2022.
Hiley G. and K. Levy, Native Title Claims Resolution Review, report, Commonwealth of Australia, March 2006.
Hobbs, Harry and George Williams. “The Noongar Settlement: Australia’s First Treaty”. In Sydney Law Review 40, no. 1 (2018): 1–38.
Hunt, M. ‘Workability of the Native Title Act (as Amended)’ (1998) 17 AMPLJ 330
Keon-Cohen, B. ‘Compensation and Compulsory Acquisition under Native Title Act 1993’ (2002) 28 Monash University LR 17.
Keon-Cohen, B. ‘From Euphoria to Extinguishment to Co-existence?’ (2017) 23 James Cook University LR 9.
Langton, Marcia and Aaron Corn. Law: The Way of the Ancestors. Melbourne: Thames and Hudson, 2023.
McNeil, K. ‘Relevance of Traditional Laws and Customs to the Existence and Content of Native Title at Common Law’, in K McNeil (ed), Emerging Justice: Essays on Indigenous Rights in Canada and Australia, Native Law Centre, University of Saskatchewan, Saskatoon, Canada, 2001.
Mohr, Richard. Two Australian Legal systems InatJ Sem Law
Muir, K. "This Earth has Aboriginal Culture Inside: Recognising the Cultural Value of Country", Land, Rights, Laws: Issues of Native Title, Issues Paper No 23, Native Title Research Unit, AIATSIS, 1998
Neate, G. "Determining Compensation for Native Title: Legislative Issues and Practical Realities". In Compensation for Native Title: Issues and Challenges, National Native Title Tribunal, Perth, 1999.
Neate, G. "Reforming the Claims Resolution Process: Opportunities and Obstacles", proceedings of the AIATSIS Native Title Conference, AIATSIS, Cairns, June 2007.
Pearson, N. "Principles of Communal Native Title" (2000) 4 Indigenous Law Bulletin 5.
Pearson, N. ‘The High Court’s Abandonment of the Time-Honoured Methodology of the Common Law in its Interpretation of Native Title in Miriuwung Gajerrong and Yorta Yorta’, Sir Ninian Stephen Annual Lecture, March 2003, Newcastle School, University of Newcastle (2003) 8 AILR 1.
Pettit, K. "Crown Reserves and Native Title" (2002) 21 AMPLJ 276.
Phillips, S. "Like Something Out of Kafka: The Relationship Between the Roles of the National Native Title Tribunal and the Federal Court in the Development of Native Title Practice", Land, Rights, Laws: Issues of Native Title, Issues Paper No 14, vol 2, Native Title Research Unit, AIATSIS, April 2002.
Razi, Sarouche and Amy Hamilton, “Skeletons in the cupboard: reading settler anxiety in Mabo and Love” in Griffith Law Review (2024-04), 1-21.
Russell, P. Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism, University of Toronto Press, Toronto, Buffalo and London, 2005
Stephenson M. and S. Ratnapala (eds), Mabo: A Judicial Revolution, University of Queensland Press, St Lucia, 1993.
Woodward, Edward Justice. Australian Aboriginal land rights commission: First and Second Reports. Aboriginal Land Rights Commission, May 1974.
Young, S. "The Trouble With Tradition: Native Title and the Yorta Yorta Decision" (2001) 30 University of Western Australia LR 28.
Audio and Visual Resources
ABC News, Mabo anniversary, 6:27. https://www.youtube.com/watch?v=e2KPAuuwYfs
ABC, Four Corners, Judgement Day - ABC News, 2012, video, 45:38 (watch in two parts)
Behind the News, Huckitta Station, Eddie Mabo and Native Title, 3:19. https://www.youtube.com/watch?v=Vh7yNKqd6R8
Gibson, Dean. Wik vs Queensland (2018), 84 minutes is a documentary record of the Wik people’s involvement in and responses to the Commonwealth High Court decision granting Native Title in the Wik land rights case in 1996, and the subsequent Commonwealth legislation to dilute that decision.
Gray, Taylah. Native Title, Dispossession & Colonialism: A Legal Examination, TEDxYouth@Sydney, 13:52. https://www.youtube.com/watch?v=a-03ZUTyS5w
Horton, David. AIATSIS map of Indigenous Australia, 1 p . [The AIATSIS map is an attempt to represent all the language, tribal or nation groups of the Aboriginal people of Australia.] https://aiatsis.gov.au/explore/map-indigenous-australia
Lewis, Robert. The day Wik won the battle but lost the war. Study Guide. https://www.wikvsqueensland.com/aboutthefilm.html