1.6: History of Law in Australia: First Nations People and the Law

Vocabulary flashcards covering key terms and legislation related to terra nullius, native title, and landmark Australian cases.

Terra Nullius

A legal fiction declaring Australia ‘land belonging to no one’ at the time of British colonisation.

Aboriginal Land Rights Act 1976

Commonwealth legislation granting land in the Northern Territory to Aboriginal land trusts if traditional ownership could be proven.

Mabo v Queensland (No 2) 1992

High Court case overturning terra nullius and recognising that Crown radical title can coexist with Aboriginal native title.

Radical Title

Ultimate ownership of all Australian land held by the Crown after colonisation.

Native Title

The beneficial legal interest in land held by Indigenous Australians under traditional laws and customs, recognised by Australian law.

Beneficial Title

Exclusive legal possession that can coexist with the Crown’s radical title under native title doctrine.

Native Title Act 1993

Statute codifying Mabo; sets procedures, definitions and limitations for native title claims.

Parliamentary Sovereignty

Principle that Parliament can make or unmake any law, allowing it to codify or amend native-title rules.

Pastoral Lease

A Crown lease for grazing that, after Wik (1996), does not automatically grant exclusive possession.

Wik Peoples v Queensland 1996

High Court decision holding that pastoral leases may coexist with native title rights.

Native Title Amendment Act 1998

Legislation imposing stricter barriers on claims, listing many situations that permanently extinguish native title.

Extinguishment

Legal termination of native title rights, e.g., by Crown acts, public works, or certain leases.

Yorta Yorta v Victoria 2002

Case where native-title claim failed because the court found traditional laws and customs had ceased under the ‘tide of history.’

Burden of Proof in Native Title

Claimants must show continuous connection and customary use of land according to common-law evidentiary standards.

Continuous Occupation

Requirement that Indigenous claimants demonstrate enduring presence on land; not sufficient without showing ongoing customary use.

Customary Law

Traditional Indigenous rules and practices governing relationships with land; often contrasted with common law in native-title litigation.

Common Law Recognition

Judicial acknowledgment, starting with Mabo, that Indigenous land rights exist within Australia’s legal system.

Native Title Amendment Act 2009

Reforms easing claim procedures by relaxing evidence rules, broadening mediation, and empowering the Federal Court.

Hearsay Rule Relaxation

2009 change allowing Indigenous oral histories as evidence in native-title proceedings without exclusion as hearsay.

Mediation Assistance

Process expanded in 2009 amendments enabling native-title disputes to be resolved without immediate court litigation.