Pre-Mabo 1971 – Milirrpum Australia's first native title case was not decided until 1971. Emblematic of the problems Aboriginal people had in having their land claims recognised, in 1835, John Batman purported to sign
Batman's Treaty with Aboriginal elders in the
Port Phillip District. Governor Bourke declared Batman's Treaty was "void and of no effect as against the rights of the Crown" and declared any person on "vacant land of the Crown" without authorization from the Crown to be trespassing. The proclamation was approved by the Colonial Office. The official objection to the Treaty was that Batman had attempted to negotiate directly with the Aboriginal people, whom the British did not recognise as having any claim to any lands in Australia. In 1971, in
Milirrpum v Nabalco Pty Ltd (the "Gove Land Rights Case") in the
Supreme Court of the Northern Territory,
Justice Richard Blackburn explicitly rejected the concept of native title, ruling against the claimants on a number of issues of law and fact.
1972–1976: Aboriginal Land Rights Act In the wake of
Milirrpum and the election of the
Whitlam government in 1972, the
Aboriginal Land Rights Commission (also known as the Woodward Royal Commission) was established in 1973 to inquire into appropriate ways to recognise Aboriginal land rights in the
Northern Territory. Prime Minister
Gough Whitlam introduced a new policy of Aboriginal
self-determination, and initiatives such as the Aboriginal Land Fund and the
National Aboriginal Consultative Committee was set up. The latter consisted of elected Aboriginal representatives, who would advise the Minister of Aboriginal Affairs. The Whitlam government introduced legislation later passed by the
Fraser government as the
Aboriginal Land Rights (Northern Territory) Act 1976, which established a procedure to transfer almost 50 per cent of land in the Northern Territory (around 600,000 km2) to collective Aboriginal ownership. The Fraser government continued to implement many of the previous government's initiatives, under the description "self-management" rather than self-determination. The court held in
Coe v Commonwealth (1979) that no
Aboriginal nation holds any kind of sovereignty, distinguishing the US case of
Cherokee Nation v Georgia (1831). However, the substantive issue of continuing land rights was not heard due to the lack of precision, vagueness and other serious deficiencies with the statement of claim presented to the court.
Justice Gibbs said, at paragraph 21, 'The question what rights the aboriginal people of this country have, or ought to have, in the lands of Australia is one which has become a matter of heated controversy. If there are serious legal questions to be decided as to the existence or nature of such rights, no doubt the sooner they are decided the better, but the resolution of such questions by the courts will not be assisted by imprecise, emotional or intemperate claims. In this, as in any other litigation, the claimants will be best served if their claims are put before the court dispassionately, lucidly and in proper form'. was introduced by Premier
Don Dunstan in November 1978, several months prior to his resignation from Parliament. An amended bill, following extensive consultation, was passed by the
Tonkin Liberal government in March 1981. This legislation gave significant rights well in advance of any other to date in Australia. In 1981, SA Premier Tonkin returned of land (10.2% of the state's land area) to the
Pitjantjara and
Yankunytjatjara people. However, it did not give the people the power of veto over mining activities; any disputes would need to be resolved by an independent arbitrator. This granted rights over of land in the
Great Victoria Desert, including the land contaminated by the
British nuclear weapons testing at Maralinga. In 1992 the rejection of native title in
Milirrpum v Nabalco was overruled by the High Court in
Mabo v Queensland (No 2), which recognised the
Meriam people of
Murray Island (Mer) in the
Torres Strait as native title holders over part of their traditional lands. The Court rejected the notion that all Indigenous rights to land were abolished upon acquisition of sovereignty over Australia. The Court held that native title rights continued to exist, and that these rights existed by virtue of the continuing connection of Indigenous People to land, independent from a grant from the Crown. Native title would continue to exist as long as traditional laws and customs continue to be observed, unless the rights were otherwise extinguished by an incompatible grant by the Crown. Justice
Gerard Brennan delivered the lead judgment in this landmark decision, stating: However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. The Act attempted to clarify the legal position of landholders and the processes to be followed for native title to be claimed, protected and recognised through the courts. The Act also established the
National Native Title Tribunal.
Wik and 1998 amendment 1996 – Wik After the Mabo decision it was uncertain as to whether the granting of
pastoral leases would extinguish native title. The
Wik Decision in 1996 clarified the uncertainty. The court found that the statutory pastoral leases (which cover some 40% of the Australian land mass) under consideration by the court did not bestow rights of exclusive possession on the leaseholder. As a result, native title rights could co-exist, depending on the terms and nature of the particular pastoral lease. Where there was a conflict of rights, the rights under the pastoral lease would prevail over native title rights.
1998 – Native Title Amendment Act 1998 The Wik decision led to amendments to the
Native Title Act 1993 by the
Native Title Amendment Act 1998. This Act contained then Prime Minister John Howard's "10 Point Plan" to counter the effects of the Wik Decision. The amending Act was introduced by the
Howard government. The amendments substantially restricted native title by narrowing the right to negotiate and extinguishing native title on most pastoral and mining leases granted before 1994.
Cases after the 1998 amendment 1998–2002 – Yorta Yorta Yorta Yorta v Victoria, dismissed a native title claim by the
Yorta Yorta Aboriginal people of north central
Victoria, on appeal from a decision of Justice Olney of the Federal Court in 1998. An appeal to the Full Bench of the Federal Court in 2001, had also been dismissed. The determination by Justice Olney in 1998 ruled that the 'tide of history' had 'washed away' any real acknowledgement of traditional laws and any real observance of traditional customs by the applicants. Western Australia appealed the decision to the Full Court of the Federal Court, then to the High Court. The High Court held in
Western Australia v Ward that native title is a
bundle of rights, which may be extinguished one by one, for example, by a mining lease. "Exclusive possession native title was recognised over
Lacrosse Island, Kanggurru Island, Aboriginal reserves within the Kununurra townsite, Glen Hill pastoral lease and Hagan Island. Non-exclusive rights were recognised over a number of areas including islands in Lake Argyle."
2001 – Yarmirr Yarmirr v Northern Territory (2001) addressed an application made on behalf of a number of
clan groups of Aboriginal people for an area of seas and sea-beds surrounding
Croker Island in the Northern Territory. It was the first judgment by the High Court of native title over waters. The judge, Olney J, determined that members of the Croker Island community have a native title right to have free access to the sea and sea-bed of the claimed area for a number of purposes. The case established that traditional owners do have native title of the sea and sea-bed; however common law rights of fishing and navigation mean that only non-exclusive native title can exist over the sea. The decision paved the way for other native title applications involving waters to proceed.
2002 and 2004 – Nangkiriny Nangkiriny v State of Western Australia (2002 and 2004), in which
John Dudu Nangkiriny and others were plaintiffs, were cases addressing the claims of the
Karajarri people in the
Kimberley region, south of
Broome. Land rights were recognised over of land (half the size of Tasmania) via an ILUA on 5 July 2011.
2004 – Maralinga In May 2004, following the passage of special legislation, South Australian Premier
Mike Rann handed back title to 21,000 square kilometres of land to the Maralinga Tjarutja and
Pila Nguru people. The land, north-west of
Adelaide and abutting the
Western Australia border, was then called the Unnamed Conservation Park. It is now known as
Mamungari Conservation Park. It includes the
Serpentine Lakes, and was the largest land return since 1984. At the 2004 ceremony Rann said the return of the land fulfilled a promise he made to Archie Barton in 1991 when he was Aboriginal Affairs Minister, after he passed legislation to return lands including the sacred
Ooldea area (which also included the site of
Daisy Bates' mission camp) to the Maralinga Tjarutja people. The Maralinga Tjarutja lands now total 102,863 square kilometres.
2005 – Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagalk The Aboriginal peoples of the
Wimmera region of Western Victoria won recognition of their native title on 13 December 2005 after a ten-year legal process commenced in 1995 when they filed an application for a determination of native title in respect of certain land and waters in Western Victoria. It was the first successful native title claim in south-eastern Australia and in Victoria, determined by Justice
Ron Merkel involving Wotjobaluk, Jaadwa,
Jadawadjali,
Wergaia and Jupagalk people. In his reasons for judgment Justice Merkel explained the significance of his orders: ::"The orders I propose to make are of special significance as they constitute the first recognition and protection of native title resulting in the ongoing enjoyment of native title in the State of Victoria and, it would appear, on the South-Eastern seaboard of Australia. These are areas in which the Aboriginal peoples suffered severe and extensive dispossession, degradation and devastation as a consequence of the establishment of British sovereignty over their lands and waters during the 19th century."
Justice Wilcox found that native title continues to exist within an area in and around Perth. It was the first judgment recognising native title over a capital city and its surroundings. The claim area itself is part of a much larger area included in the "Single Noongar Claim", covering the south-western corner of Western Australia. An appeal was subsequently lodged and in 2008 the Full Court of the Federal Court upheld parts of the appeal by the Western Australian and Commonwealth governments against Justice Wilcox's judgment.
2008 – Blue Mud Bay sea rights The 2008 decision by the High Court decided the
Blue Mud Bay sea rights case, establishing a precedent for sea rights over an
intertidal zone for the first time. The
Yolngu people of
Baniyala were involved in this case, which involved Blue Mud Bay in
East Arnhem Land.
2007 and 2009 amendments In 2007 the Howard government passed the
Native Title Amendment Act 2007, and the
Native Title Amendment (Technical Amendments) Act 2007, a package of coordinated measures and technical amendments to improve the performance of the native title system. These are aimed at making the native title process more efficient and to speed up the determination of whether native title exists on the 580 claims that had been registered but not yet determined. The
Native Title Act 1993 was further amended by the
Rudd government by the
Native Title Amendment Act 2009. It allows the Federal Court to determine who may mediate a claim, whether that be the court itself, the Native Title Tribunal, or otherwise.
Further significant determinations 2008–2019 – Timber Creek Northern Territory v Mr Griffiths and Lorraine Jones was a 2018
High Court of Australia case, ruled in 2019, regarding land around
Timber Creek, Northern Territory, involving a compensation claim by
Ngaliwurru and
Nungali lands surrounding Timber Creek. It related to various earlier cases since 1997. Described as "the most significant [case]… since
Mabo", the High Court ruled for the first time on compensation for the extinguishment of native title in Australia. It is considered a "landmark" native title case, because the clauses contained within the
Native Title Act 1993 pertaining to the determination of compensation payable due to the extinguishment of native title had never been heard before in the High Court.
2020 – Yamatji Yamatji Marlpa Aboriginal Corporation was involved in a large native title claim from 1996, based on the
Native Title Act 1993, resulting in an historic determination in February 2020, involving both native title and an ILUA, covering an area of in Western Australia.
2020 – Gurindji, Wave Hill Station A claim was lodged in 2016 by the
Central Land Council on behalf of the
Gurindji peoples in the area, as there were mining interests in area covered by
Wave Hill Station's pastoral lease. The court sitting took place nearly south of Darwin, and descendants of
Vincent Lingiari and others involved in the
Wave Hill walk-off celebrated the determination. The owners will participate in the mining negotiations and exploration work, from which royalties may flow in the future, but just as important is the right to hunt, gather, teach and perform cultural activities and ceremonies, and allow the young people to connect with their land.
2025 – Gove Peninsula In 2019,
Galarrwuy Yunupingu brought a native title claim against the
Australian Government on behalf of the
Gumatj peoples of the
Northern Territory. He sought financial compensation over the acquisition of land on the
Gove Peninsula, which was obtained by the government without the consent of the traditional owners, which were transmuted into
bauxite mines. The Federal Court of Australia ruled in favour of the Gumatj people in 2023, finding that their land was not acquired "on just terms" before being leased to mining consortium
Nabalco in 1968. This was
upheld on appeal by the
High Court of Australia in March 2025. The matter of how much compensation, and to whom it should be paid, was not included in the judgment, and it is likely to be some years before agreement is reached. Mediation overseen by an experienced retired Federal Court Judge and a Federal Court Registrar began in August 2025, to try to reach agreement among various Indigenous parties to identify those who hold native title to the claim areas, and is expected to be complete in January 2026. The decision potentially makes the Commonwealth liable to claims of compensation for decisions made which extinguished native title claims for
territories under its administration. ==Native title rights and interests==