Native Title in the Twenty-First Century

This is the third in a special series of posts reflecting on 25 years of the Gilbert + Tobin Centre of Public Law. To see other posts in this series, click here.

Sean Brennan

14.10.2026

‍In Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)), the High Court of Australia said that under defined conditions Indigenous property rights that long pre-dated the arrival of British colonists could be recognised in the present day as ‘native title’. That inflection point in Australian law and society was about a decade old when the Gilbert + Tobin Centre of Public Law (the Centre) was established, and the law of native title was about to undergo a phase of judicial retrenchment in the High Court. As a research centre focused on contemporary public law issues of importance to Australia, Indigenous legal issues have been part of the Centre’s core business since its inception through to the present day. In the area of native title law and policy, the Centre has endeavoured across a quarter century to anticipate issues, explain and critique the role played by courts and governments, and engage with Indigenous aspirations for political and economic empowerment. Much of that work has been done in partnership with the Indigenous Law Centre.

Constitutional law, treaty and native title

Constitutional law hovers close by in discussions of Indigenous law and policy, and is threaded through the unfolding story of native title recognition in Australia (as discussed in this chapter, co-authored with Megan Davis). For nearly 150 years, Australian judges expressed an assumption that, with the assertion of sovereignty, the Crown also acquired full beneficial ownership of the land. That assumption of symmetry between public law and private law was amongst the reasons Blackburn J gave in Milirrpum v Nabalco (1971) 17 FLR 141 for blocking the Yolngu people in their first attempt to achieve native title recognition in an Australian court.

Eddie Mabo and other Meriam people commenced proceedings in 1982 to challenge that closed judicial mindset about pre-existing property rights. In 1985, Queensland tried to terminate the litigation by exercising the State parliament’s constitutional power to abolish property rights without compensation. The Queensland legislation was found invalid by the High Court in Mabo v Queensland (No 1) (1989) 166 CLR 186 (Mabo (No 1)) because of the supremacy under s 109 of the Australian Constitution of a Commonwealth law that provides for equality before the law (the Racial Discrimination Act 1975 (Cth) (RDA)). The High Court decision was, in turn, built on the earlier litigation by John Koowarta from Wik country in far north Queensland (explained in this ABC TV interview). Koowarta v Bjelke-Petersen (1982) 153 CLR 168 (Koowarta) successfully established that the Commonwealth had constitutional authority under the external affairs power to make a national law prohibiting racial discrimination. It was these two constitutional landmarks – Koowarta and Mabo (No 1) – that together gave the Mabo litigation a reprieve, and allowed the Meriam people to carry on to ultimate success in the High Court in 1992. Section 109 and the RDA proved constitutionally sufficient in the High Court again in 1995 when, along with the federal Native Title Act 1993 (Cth) that had come into force in 1994, they secured national standards and over-rode inferior Western Australian legislation (Western Australia v Commonwealth (1995) 183 CLR 373).

As debates about constitutional recognition of First Nations warmed up in the 2010s, the Centre sought to crystallise the relevance of that debate to questions of land justice, pointing out that ‘[e]ach time a political or judicial institution exercises its power it will do so with one eye to what the Constitution says’. For more than a decade in the run-up to the Voice to Parliament referendum in 2023, numerous members of the Centre were involved in the constitutional recognition process, for example, as pro bono lawyers supporting the Regional Dialogues that culminated in the Uluru Statement from the Heart; in making submissions to parliamentary committees and like bodies; and in engaging with workplaces, community organisations, academic audiences, and the general public. Traditional Owners were given guaranteed participation in the Regional Dialogues, which were hosted in several locations by Native Title Representative Bodies, and land justice was a significant issue in many delegate discussions. It is difficult to imagine the wider public debate over constitutional recognition gaining the salience and momentum that it acquired in Australian society in this period, but for the earlier impact of Mabo (No 2) and its rewriting of legal fictions about Australia’s foundational history.

Native title also has a connection to modern-day treaty-making, a subject addressed by one project early in the life of the Centre (see, for example, this Issues Paper discussing that link). Modern treaty-making is now the subject of another ARC-funded Centre project led by Associate Professor Harry Hobbs. The shift in law, politics, and society brought about by the Mabo decision gave fresh momentum to what was an already substantial movement for modern treaty-making. In the native title era, post-Mabo (No 2), the experience with agreement-making between the state and traditional owner groups has better equipped Australia for the challenges of modern treaty-making. At the same time, the gaps and inadequacies in native title law, and the very uneven distribution of recognition and its benefits, have given added impetus to the case for treaty-making on a broader scale.

One native title issue identified early within the Centre’s work was the constitutional basis for compensation. This detailed 2004 article examined whether the just terms guarantee for the acquisition of property under Commonwealth law in s 51(xxxi) of the Constitution applies to the extinguishment of native title. It argued for the rejection of Gummow J’s insistence, in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, that native title was inherently defeasible. That anticipated the High Court’s position 20 years later, when the issue finally came before it for resolution, as part of a second and still-running Yolngu native title claim. That litigation is conducted in the name of Yunupingu, the late Yolngu leader. The threshold constitutional questions in that litigation involved a High Court hearing in Darwin in August 2024, which was explained in this Centre webinar and AUSPUBLAW blog post. The High Court judgment itself – Commonwealth v Yunupingu (2025) 284 CLR 1 (Yunupingu) – arrived a few months later. It confirmed that extinguishment under Commonwealth law does attract the just terms guarantee, a major step in further consolidating the place of native title in the Australian legal system. The judgment was analysed and explained in various media interviews such as this one, as well as in this article, webinar hosted by the Indigenous Law Centre, blog post, and conference. In between 2004 and 2025, some of the other potential ways in which the just terms guarantee interacts with native title and Aboriginal land interests were explored here and here.

First-order issues in native title law: title, extinguishment, connection

Aside from constitutional issues with a direct or indirect connection to Mabo (No 2) and native title, the Centre has continuously foregrounded analysis of judicial decision-making on the primary questions of native title law itself.

In 2002, the first full year for the Centre, the High Court decided three native title test cases: Western Australia v Ward (2002) 213 CLR 1; Wilson v Anderson (2002) 213 CLR 401; and Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (Yorta Yorta). An analysis delivered at the February 2003 Centre conference critically dissected the technical grounds for each decision and exposed the choices made by the High Court regarding three key issues. On the nature of the property right, it commented that ‘[t]he possibility lurking in earlier High Court decisions that native title might be a genuine “title” akin to ownership … suffered heavily at the hands’ of the 2002 Court, which ‘treated native title instead as an accumulation of [severable] rights’. As to extinguishment law, the Court passed up the opportunity ‘to develop a more nuanced understanding of the potential for co-existence between titles and for friction without obliteration of one by the other’. And finally, in stating legal preconditions for recognition of traditional connection to country that went beyond what had been said in Mabo (No 2), the Court ‘put severe demands on any group seeking to establish native title under the Act’.

That 2003 analysis highlighted the risk to equality before the law in native title law, as well as the surrender of the Court’s previous willingness to find extinguishment only as a last resort. A few years later, a stocktake of High Court decision-making in native title and land rights cases pointed to ‘an evident tendency in these cases to formalism and the avoidance of explicit reference to normative considerations in carrying out statutory interpretation’. It argued that ‘such an approach is ill-suited to these particular legal paradigms of land rights and native title’ and that it was ‘not unreasonable to expect that … the High Court would pay due regard to developing Australian native title law in a way that is compatible with non-discriminatory principles’.

By 2025, it was possible to observe that, by contrast, ‘the joint judgment in Yunupingu posed the inherent defeasibility argument as a choice between two plausible interpretive approaches, and assembled three propositions about values and policy’ to explain its ultimate decision. One of those propositions was a concern to uphold equality before the law, which the judgment described as a motivating rationale of the Mabo (No 1) decision (at 64 [79]).

In between, and as its membership changed, the High Court moderated the harshness of the extinguishment law doctrines articulated in 2002. Extinguishment has again indeed become a conclusion of last resort, driven by the concept of ‘necessity’ (explained here) – though the way pastoral leases were analysed by the Court in 2002 remains heavily imprinted on the native title map of Australia. Simultaneously, in characterising native title as a property right, the Court has made a qualified shift away from atomisation to a more holistic conception. Amongst other things, that lent itself to recognition of native title rights with a trading or commercial character (analysed in Chapter 4 of this collection). The current Court is yet to confront a case fully testing its perspective on proof of connection issues, decades on from the much-criticised Yorta Yorta judgment, and groups continue to be refused recognition on the basis of its reasoning. But it is evident that to some extent things have moved on in terms of government attitudes and the Federal Court’s approach.

Compensation for native title extinguishment

The High Court in Mabo (No 2) said, by narrow majority, that the extinguishment of native title was not compensable at common law. The Native Title Act introduced a scheme for native title compensation covering acts done after 1993 and a limited subset of extinguishing acts that occurred before then. As explained in this chapter co-authored with Jason Behrendt, ‘the substantial barriers to recovery (including very high litigation costs) deterred most groups’ from seeking to make good on their legal rights to compensation through the courts.

It was not until 2019 that the High Court began to clarify the law of compensation, in Northern Territory v Griffiths (2019) 269 CLR 1 (Timber Creek), which concerned extinguished native title rights of Ngaliwurru and Nungali Peoples in the remote Northern Territory township of Timber Creek (analysed in this AUSPUBLAW post).  

This year, in 2026, there were two further contested determinations of native title compensation in the Federal Court. One related to Gudanji, Yanyuwa and Yanyuwa-Marra Peoples’ interests over the McArthur River mine on the Northern Territory side of the Gulf of Carpentaria. The other (now under appeal), concerned the exclusive possession native title held by Yindjibarndi people over the Solomon Hub mine in the Pilbara region of Western Australia. To date, the application of conventional valuation methods seems prone to create a gross disproportion between the wealth extracted by miners from Indigenous land and the amount assessed for economic loss experienced by native title holders.

Those two cases, plus Timber Creek and Yunupingu, are still scratching the surface of what may yet need to be clarified in this emerging area of law. A new project with my University of New South Wales colleague Leon Terrill will unpack the developments in the case law so far, with a view to making relevant interventions in law and policy debates over methods and mechanisms for the vindication of legal rights to compensation. The first outcome from that project is a co-authored article analysing the McArthur River and Yinjibarndi decisions, forthcoming in the Australian Law Journal.

Conclusion

The Centre’s work on native title has had a strong focus on the judicial development of native title law and that will continue. Judges have made the weather for many years in the world of native title inhabited by First Nations people, governments, and third parties. But interdisciplinary work is also important – as reflected, for example, in the collaboration with an Indigenous Law Centre workshop about native title as vehicle for political and economic empowerment, which resulted in this edited collection, and this book event. Governments also play a crucial role not just as respondents but also as policy-setters, underlining the importance of public engagement in that sphere as well. The challenges of achieving a fairer mechanism for the recovery of compensation, and a reform agenda for mining and other development on native title land spelt out in a recent Australian Law Reform Commission report are just two current examples of why native title law and policy will continue to ask fundamentally important questions of government about fairness and the place of First Nations people in contemporary Australia.

Sean Brennan is an Associate Professor at UNSW Law & Justice and Director of the Indigenous Legal Issues Project at the Gilbert + Tobin Centre of Public Law.

Suggested citation: Sean Brennan, ‘Native Title in the Twenty-First Century’ (14 October 2026) <https://www.auspublaw.org/blog/2026/10/native-title-in-the-twenty-first-century>