The Australian Experience of Aboriginal Title: Lessons for South Africa

Abstract

ABSTRACTSince Mabo v Queensland (No 2) (1992) 175 CLR 1, Aboriginal title claims in Australia have been the primary mechanism by which indigenous communities have made claims to land. In the same period in South Africa, land claims by blacks dispossessed of their land during the Apartheid era have focused on the statutory remedy provided by the Restitution of Land Rights Act 22 of 1994. In December 1998, an Aboriginal title claim was lodged before the South African courts for the first time. It is likely that there will be more such claims in the future as restitution is available under the Act only to claimants dispossessed of land after 19 June 1913 who lodged their claims before the expiry date on 31 December 1998. This article provides an overview of the state of Aboriginal title law in Australia up to the decision in Western Australia v Ward (2000) 170 ALR 159. The analysis of the Australian law is used to consider the potential benefits and dangers of pursuing common-law Aboriginal title claims in South Africa.