Abstract

In more than a decade since Mabo v. Queensland II’s recognition of Indigenous peoples’ rights to their traditional lands, the jurisprudence of native title has undergone significant development. The High Court of Australia decisions in Ward and Yorta Yorta in 2002 sought to clarify the nature of native title and its place within Australian property law, and within the legal system more generally. Since these decisions, lower courts have had time to apply them to native title issues across the country. This Essay briefly examines the history of the doctrine of discovery in Australia as a background to the delayed recognition of Indigenous rights in lands and resources. It further examines the way the Mabo decision sought to reconcile the recognition of rights with the protection of the interests of the state. In doing so, the Essay examines two strands of developing native title jurisprudence that have significantly limited the potential of native title for Indigenous peoples—the doctrine of extinguishment and the role of law and custom in the proof of native title.

Keywords

Native title (Australia), Discovery (Law) -- Australia, Extinguishment of Indian title, Mabo, Yorta Yorta