Since the Mabo decision in 1992 revised fundamental assumptions embedded in Australian law, native title has developed as a complex and controversial area of law and policy. Based on an understanding of native title as the intersection of two legal systems, this course will provide students with a technical and contextual understanding of native title law, policy and practice in Australia. The course will study the evolution of native title law, by common law development and legislative change, and analyse the contemporary state of the law through the prism of issues such as the characterisation and content of native title as a property right, the rules of extinguishment, the requirements to establish a normative society and continuous connection with traditional country, agreement-making and current law reform debates. The course will situate the law in its broader context by exploring the social and practical as well as legal reality surrounding native title recognition, the interaction of native title holders with government and industry sectors and the pursuit of wider Indigenous aspirations in the post-Mabo era.
Main Topics
- From terra nullius to Mabo No 2
- Getting a Native Title Act
- Scoping the Act
- Wik and the 1998 Amendment Act
- Society, continuity and connection
- Native title: characterisation and content
- Extinguishment
- Compensation
- Preparing, pursuing and litigating native title claims
- After the claim is over
- Future acts
- Agreement-making
- Economic and social development and native title
- Current law and policy reform debates
- Evaluating native title and its significance
