A jurisprudence of difference: the denial of full respect in the Australian law of native title

The recognition of native title changed the foundations on which the Australian law of real property rested. However, the phrase "the promise of Mabo" is not one much heard any more, rather one talks of a "high water mark", as if Wik and Yanner v Eaton belonged to a golden age long passed. While Mabo (1992) affirmed native title as a legal right of exclusive occupation and possession, it denied any legal remedy for 200 years of dispossession and extinguishment, and while Wik (1996) affirmed a diminished native title on land subject to pastoral leases, it has been interpreted to deny native title any equality of interest with other proprietary rights. What now is the state of the Australian law on native title? The sad fact is that more than ten years after Mabo and after years of "debilitating litigation",1 no one has a positive word to say about native title as a coherent legal doctrine, least of all, the High Court.2 While it is universally conceded that the settlement of native title issues is best achieved by agreement rather than litigation, there remains a need to focus on the fundamental legal principles which underlie the recognition and protection of native title in Australia, in order that informed discussion of native title can take place and that settlements may have a clear foundation. The object of this thesis is to examine the way in which Australian law has conceived of native title as a legal right to property. This is done by reference to the fundamental legal principles that underlie the recognition of native title and the protection of proprietary interests in land. What is revealed is a constant tension between legal principle and pragmatic concerns.