A dynamic system of law and culture
The High Court recognised that the rights and interests under native title are not frozen in time, they change and develop as the system of laws and the culture from which native title rights are derived also changes. This dynamic title recognises the survival of Indigenous peoples as peoples with a system of law which gives rise to legitimate rights and entitlements. Justice Brennan explained that: 'so long as the peoples remain an identifiable community, the numbers of whom are identified by one another as members of that community, living under its laws and customs, the communal native title survives to be enjoyed...' (Mabo v Queensland [No.2] (1992) 175 CLR 1, at p 61)
Therefore, native title is not a bundle of rights and interests, but a reflection of a system of law that regulates Indigenous peoples' relationships with land.
The Court suggested that native title will be recognised where the Indigenous people have substantially maintained a traditional connection to the land or waters, observing the laws and customs, as far as is practicable, since the time of colonisation. This connection did not, nor should it, reflect the kinds of relationships that exist with other titles.
Keywords: Brennan, Justice Gerard, land ownership, Mabo judgement, Mabo v Queensland No.2, native title, 1992
(1992) 175 CLR 1, at p 61. Still: Sir Gerard Brennan, Courtesy High Court of Australia.
Author: Strelein, Lisa