Australian and international perspectives on native title, archaeology, and the law

Native Title is Australia’s acknowledgment that some Indigenous peoples have a continued beneficial legal interest in and rights to land that survived acquisition of title by the Crown when Empress Queen Victoria gained sovereignty of Australia in 1901.The concept embraces two distinct systems of law-traditional Indigenous law and the English-derived law-operating within the same geographic, national, and jurisdictional space. Following the Mabo decision of 1992, which overturned the legal fiction of terra nullius (that the land was “unoccupied” by people), and then with the passage of the Native Title Act (1993), a juggernaut of cases asserting Native Title rights has been mobilized. While many Aboriginal groups have avoided full litigation and received a consent determination1 (after meeting certain conditions), others have been involved in extremely protracted and costly (both monetarily and culturally) court cases run- ning to the tens of millions of dollars.There is currently a backlog of over 600 Native Title cases in the federal courts of Australia.