Native title: common-law recognition and the statutory framework 

A common student question - "when did native title start?" - actually asks about three different things, and Australian law gives a different, more precise answer to each.

A pre-existing basis, not a grant

Native title is not a form of title that the Crown or the Commonwealth Parliament created and then handed to Aboriginal and Torres Strait Islander peoples. It arises from the traditional laws acknowledged and the traditional customs observed by those peoples, and from their connection to particular land and waters under those laws and customs — the three elements the statutory definition later adopted.² That connection existed before, and independently of, British acquisition of sovereignty over Australia. What later changed was not the existence of that connection, but whether the Australian legal system recognised it.

Common-law recognition: *Mabo v Queensland (No 2)*

Australian common law recognised native title in Mabo v Queensland (No 2) [1992] HCA 23, decided by the High Court on 3 June 1992.¹ The Court rejected the earlier assumption that Australia was terra nullius - land belonging to no one - for the purposes of denying any pre-existing property rights, and held instead that native title survives, to the extent it has not been extinguished, as a burden on the Crown's radical title acquired at sovereignty.

This is a recognition case, not a creation case: the Court did not invent a new right, it removed a legal fiction that had previously prevented the common law from recognising a right that, on the Court's own reasoning, already existed under Aboriginal and Torres Strait Islander law and custom.

The statutory framework: the *Native Title Act 1993* (Cth)

Following Mabo (No 2), the Commonwealth Parliament enacted the Native Title Act 1993 (Cth), which commenced on 1 January 1994. The Act does not itself create native title; it provides the statutory mechanism for recognising, protecting, determining and dealing with native title rights and interests, including the processes for making and resolving native title claims and for regulating "future acts" that may affect native title.

Because the Act's title carries the year 1993 but its commencement is a separate date (1 January 1994), and because the Act has since been amended multiple times, always check the specific provision and the current compiled version on the official legislation register rather than assuming the year in the Act's short title tells you when a particular rule took effect.

Why the distinction matters

A complete answer to "when did native title start" should identify all three points that are actually being asked about, rather than picking one and treating the others as if they did not exist:

1. the pre-existing traditional basis, which has no single "start date" because it is not a creature of Australian statute or common law;
2. common-law recognition, dated to Mabo v Queensland (No 2), 3 June 1992; and
3. the statutory framework, commenced by the Native Title Act 1993 (Cth) on 1 January 1994.

Collapsing these into one date - or assuming the Act created the right it merely regulates - is a common and avoidable error.

Self-check

Before answering a question about native title's origin, check whether it is really asking about the traditional/customary basis, the common-law recognition case, or the statutory commencement date, and answer the one(s) actually asked rather than defaulting to whichever is easiest to state.

For the surrounding constitutional and jurisdictional context, read Commonwealth, state and territory law.