Native Title & Indigenous Law

In the Mabo decision, the High Court established that native title is recognised under the common law, but not created by it.

However, while "common law" native title has its source in the laws and customs of Indigenous peoples, neither is it part of Aboriginal law. That's because the common law imposes its own limitations on the recognition of Aboriginal law and Aboriginal relations with the land.

As a result, Aboriginal law may recognise rights to land where the common law native title does not, because the Crown has extinguished those rights.

Furthermore, while the common law recognises indigenous laws about land, it does not recognise other rights and laws of Aboriginal peoples.