Introduction

In this topic, we start by a brief consideration of the nature of public land as regulated in Queensland under the Land Act 1994 (Qld).[1] This Act was amended in 2015. The State plays a critical role in relation to land in the following ways:

(a) Original source of private title;

(b) Residuary holder of land granted on limited tenure;

(c) Holder of land retained for ‘public purposes’;

(d) Holder of parts of land reserved from grants to individuals; and

(e) Regulator of the development and use of private land.

There is a brief overview of some of the key provisions of the Land Act 1994 (Qld).

This topic then proceeds to examine the significant theme of Native Title. We start by considering how the common law has come to recognise Native Title. This part of the topic examines the broader themes of:

(a) The relationship between indigenous people and property law; and

(b) The relationship between indigenous peoples and land.

In relation to tenure the discussion investigates radical title in a settled country like Australia and ultimately the important recognition of Native Title and how this impacts upon the continuing relevance of the doctrine of tenure today.[2]

There is a focus on the landmark High Court decision of Mabo v Queensland (No 2) (1992) 175 CLR 1 and subsequent High Court and Federal Court decisions which have sought to clarify and explain the dimensions of native title in various ways following the enactment of the Native Title Act 1993 (Cth) (NTA) as amended. There is a substantial discussion of the incidents of native title under the NTA and the various bases upon which native title can be extinguished. The topic concludes with a short section on the National Native Title Tribunal (NNTT).

Readings

[APL] Ch 3, [3.76-3.128]

[1] We also considered the Land Act 1994 (Qld) in relation to land boundaries in Topic 2.

[2] This discussion augments the discussion of the doctrine of land tenure in Topic 6.

Objectives

After studying Topic 7 you should be able to:

• Identify and articulate the nature of grants of public land under the Land Act 1994 (Qld);
• Appreciate and show an understanding of the basis of the theory of universal and absolute Crown ownership in the context of the land rights of indigenous peoples;
• Appreciate in an introductory way the recognition of Native Title and be able to distinguish it from radical title in the context land tenure;
• Appreciate and evaluate how and upon what basis the common law has come to recognise the nature and incidents of native title;
• Show an understanding of native title under the Native Title Act 1993 (Cth) as amended;
• Discuss and show an understanding of how native title can be extinguished; and
• Show an awareness of the role of the National Native Title Tribunal (NNTT) and be able to navigate the NNTT website in relation to both the registries of Native Title claims and Indigenous Land use Agreements.

Summary

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Tutorial

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Version

This unit was last updated on 10.03.2019