A Hope Disillusioned, an Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act

Abstract

It is 10 years since the Native Title Act 1993 (Cth) was passed in response to the High Court's Mabo decision. Those years have been marked by an interplay between the common law and statute. Following the High Court's decision in Ward and Yorta Yorta, this interplay has been starkly enunciated and redefined. The Act is dominant and the common law has been almost relegated, at least for the moment, to a historical artefact. Noel Pearson described the process most dramatically: Ten years in the sunshine of the Rule of Law was all that black Australians were fated to enjoy. How is it that such a determinate view of the state of native title could be made a mere 10 years after the promise engendered by the Mabo decision? While there is little doubt that the nature of the rights emerging from both the common law and the Act have been significantly diminished by both the Native Title Amendment Act 1998 (Cth) and the recent decisions in Ward, Yorta Yorta and Wilson v Anderson, it is indisputable that the recognition and protection of native title as a result of Mabo provided the underpinning for a realignment of relationships between indigenous and non-indigenous Australians. Indigenous rights and interests in land can no longer be ignored or cast aside. This article argues that in spite of both legislation and the courts diminishing the concept of native title and the rights associated with it, the process of change unleashed by Mabo and the Native Title Act 1993 (Cth) cannot be reversed. The question now is where this process of change will lead.