Australia
Australia did not experience native title litigation until the 1970s, when Indigenous Australians (both Australian Aborigines and Torres Strait Islanders) became more politically active. In 1971, Blackburn J. of the Supreme Court of the Northern Territory rejected the concept in Milirrpum v Nabalco Pty Ltd (the "Gove land rights case"). The Aboriginal Land Rights Commission was established in 1973 in the wake of Milirrpum. Paul Coe, in Coe v Commonwealth (1979), attempted (unsuccessfully) to bring a class action on behalf of all Aborigines claiming all of Australia. The Aboriginal Land Rights Act 1976 established a statutory procedure that returned approximately 40% of the Northern Territory to Aboriginal ownership; the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 had a similar effect in South Australia.
The High Court of Australia, after paving the way by striking down a State statute under the Racial Discrimination Act 1975, overruled Milirrpum in Mabo v Queensland (No 2) (1992). Mabo, rejecting terra nullius, held that native title exists (6–1) and is extinguishable by the sovereign (7–0), without compensation (4–3). In the wake of the decision, the Australian Parliament passed the Native Title Act 1993 (NTA), codifying the doctrine and establishing the National Native Title Tribunal (NNTT). Western Australia v Commonwealth (1995) upheld the NTA and struck down a conflicting Western Australia statute.
In 1996, the High Court held that pastoral leases, which cover nearly half of Australia, do not extinguish native title in Wik Peoples v Queensland. In response, Parliament passed the Native Title Amendment Act 1998 (the "Ten Point Plan"), extinguishing a variety of Aboriginal land rights and giving state governments the ability to follow suit.
Western Australia v Ward (2002) held that native title is a bundle of rights, which may be extinguished one by one, for example, by a mining lease. Yorta Yorta v Victoria (2002), an appeal from the first native title claim to go to trial since the Native Title Act, adopted strict requirements of continuity of traditional laws and customs for native title claims to succeed.
Read more about this topic: Aboriginal Title, History By Jurisdiction
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