...Land, society and culture...
Native title recognises the rights of Indigenous peoples in relation to land, waters and resources but does not appear to extend to the recognition of social and cultural rights which give meaning to relationships with the land. The laws regulating the relationships between people, for example, with respect to more general rights of self-government, have been rejected by the High Court. Chief Justice Mason has reiterated that the Mabo decision did not recognise an alternative legal system operating in Australia, despite those elements of native title that would suggest otherwise. (Walker v NSW (1994) 126 ALR 321)
The High Court has reaffirmed that the existence of rights and interests under Aboriginal law, while necessary to establish native title, may not always be sufficient. (Fejo v Northern Territory (1998) 156 ALR 721 per Kirby J)
The power of the Crown to extinguish is central to native title, making it vulnerable to acts of the new sovereign. This power is inconsistent with Indigenous peoples' relationship to land. Native title rights and interests, which emerge from the law and customs of Indigenous peoples, may lose recognition under the common law despite continuing to exist, and to be exercised, under Aboriginal law.
Keywords: Australian Court Case, Fejo v Northern Territory (1998), legal pluralism, Mabo judgement, Northern Territory, recognition, Walker v NSW (1994)
Author: Strelein, Lisa