Do the Walls Have Ears? Indigenous Title and Courts in Australia

Abstract

Australia has always been a place of legal pluralism. Before the British colonists brought with them the common law and the statute law of England, there were indigenous systems of law. Indeed, there were very many of them. They did not cease to exist just because English law was imported. Sadly, for over 200 years, their existence was not officially recognised by the Anglo-Australian legal system. In 1992, in Mabo v State of Queensland [No.2], the High Court of Australia did more than “invent” native title. It made this nation officially a legally pluralist one. The common law now recognises, and gives effect to, indigenous law with respect to land tenure and, possibly, with respect to other aspects of life and death as well. Native title is what indigenous law says it is, no more and no less, except to the extent that non-indigenous law operates to “extinguish” or “impair” native title. The first inquiry in any application for a determination of native title must be as to the continuing existence of an indigenous legal system and the manner in which that legal system deals with entitlements in relation to the relevant land. If such a system survives and gives entitlement to people, it must then be asked whether non-Aboriginal law has “extinguished” or “impaired” those entitlements. In truth, this inquiry is as to whether the non-indigenous legal system has withdrawn its recognition of those entitlements, because of its creation of interests, or recognition of activities, incompatible with the continuing existence of indigenous entitlements. The entitlements continue to exist in indigenous law, despite any “extinguishment” or “impairment.”