Native Title in Australia, 3rd edition

This authoritative text provides a clear and comprehensive treatment of native title in Australia, covering its current operation, application to resource development and traditional pursuits and historical, political and legal background.

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ISBN/ISSN: 9780409333558

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A clear and comprehensive treatment of native title law and its operation in Australia today

This comprehensive and authoritative work provides the reader with an understanding of both the current operation of native title in Australia and its historical and political background and development. It covers the nature of the concept, its proof, content and extinguishment, explains its limited degree of protection in the context of future acts, and discusses the application of native title principles to resource development and traditional pursuits. It necessarily considers both the common law and the Native Title Act.

In the third edition of this highly regarded work, the author provides insightful discussion and analysis of many developments, including:

  • the more moderate approach to extinguishment underlying recent High Court decisions such as Akiba v Commonwealth (2013), Karpany v Dietman (2013) and Western Australia v Brown (2014);
  • confirmation of the native title right to engage in commercial exploitation of a resource,  grounded in traditional laws and customs;
  • observations on the increased usage of indigenous land use agreements and consent determinations;
  • the inclusion of more substantial native title content in consent determinations;
  • the legislative trend for amendments to the Native Title Act to be directed to efficiency and efficacy, rather than equality, to deliver an effective and timely process

A reflection on the 20 years since the decision in Mabo is also included.

Native Title in Australia provides an ideal basis for both undergraduate and postgraduate study of native title and related indigenous issues, and is a reliable and informative source for practitioners, researchers and government bodies requiring current information in this area.

Related LexisNexis Titles

Edgeworth, Rossiter, Stone & O’Connor, Sackville & Neave Australian Property Law, 9th ed, 2012
Hepburn, Australian Property Law, 3rd ed, 2014
Webb & Stephenson, Focus: Land Law, 3rd ed, 2009

This review was first published in the Law Institute Journal Vol 89.08 August 2015

First published in QLD Lawyer Volume 35 Part 2 July 2015. Reproduced with the kind permission of Thomson Reuters

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Table of contents

Part 1 – The Background


Ch 1 A Legal History


Ch 2 Protection and Recognition of Native Title: Mabo


Ch 3 Political and Legislative Responses to Mabo  Ch 4 Pastoral Leases and Equality: Wik


Ch 5 The Ten Point Plan: Workability and the Denial of Equality


Ch 6 Retreating from Mabo and Wik: Frozen Rights and Judicial Denial of Equality: Ward


Ch 7 An Onerous Burden of Proof: Yorta Yorta


Ch 8 Nigh Impossible to Prove Native Title in Urban Areas: Bennell


Ch 9 Returning to the first principles of Mabo and Wik in Akiba and Brown


Ch 10 Efficiency Not Equality the Focus of Legislative Change


Ch 11 Constitutional Framework of Native Title


Part 2 – The Nature of Native Title


Ch 12 The Concept of Native Title


Ch 13 Proof


Ch 14 Making a Claim Under the Native Title Act 1993


Ch 15 Content of Native Title


Ch 16 Transferability and Alienability


Ch 17 The Proprietary Nature of Native Title


Part 3 – Extinguishment and Validation


Ch 18 Jurisdiction to Extinguish and Constitutional Protection


Ch 19  Extinguishment and Impairment at Common Law: 1788–1975


Ch 20 Confirming or Deemed Extinguishment: 1788–1996


Ch 21 Extinguishment and Suspension: 1975–1996 Ch 22 Disregarding Historic Extinguishment


Part 4 – Future Dealings


Ch 23 The Future Act Process


Part 5 – Agreements and Agreement Making


Ch 24 The Right to Negotiate, Agreements and Settlements


Ch 25 The Right to Negotiate


Ch 26 Indigenous Land Use Agreements


Ch 27 Consent Determinations


Ch 28 Compensation


Part 6 – Fiduciary Obligations


Ch 29 Fiduciary Obligation as to Native Title


Part 7 – Resource Developments and Traditional Pursuits


Ch 30 Minerals and Petroleum


Ch 31 Water


Ch 32 Hunting, Fishing and Gathering Rights


Part 8 – Institutions and Jurisdiction


Ch 33 The National Native Title Tribunal and the Federal Court


Ch 34 Representative Bodies


Ch 35 State and Territory Jurisdiction


Part 9 -   Reflections on Mabo


Ch 36 Twenty Years After Mabo