Defining native title: the Native Title Act 1993
The Native Title Act was introduced into law by the Commonwealth Parliament in 1993 with the purpose of recognising and protecting native title. The Act defines native title in similar terms to those of the Mabo judgement. Under section 223(1), native title is:
'The communal, group or individual rights and interests of Aboriginal people or Torres Strait Islanders in relation to land or waters where:
the rights and interests are possessed under the traditional laws acknowledged and traditional customs observed by the Aboriginal people or Torres Strait Islanders; and the Aboriginal people or Torres Strait Islanders, by those laws and customs, have a connection with the land and waters;
and the rights and interests are recognised by the common law of Australia.
Therefore, the scope of native title is left to be developed by the common law and in the particular circumstances of each case.'
'The communal, group or individual rights and interests of Aboriginal people or Torres Strait Islanders in relation to land or waters where:
the rights and interests are possessed under the traditional laws acknowledged and traditional customs observed by the Aboriginal people or Torres Strait Islanders; and the Aboriginal people or Torres Strait Islanders, by those laws and customs, have a connection with the land and waters;
and the rights and interests are recognised by the common law of Australia.
Therefore, the scope of native title is left to be developed by the common law and in the particular circumstances of each case.'
Keywords: Common Law, custom, Mabo judgement, native title, Native Title Act (1993), 1993
Author: Strelein, Lisa