From Doctrine to Practice: Mabo, Native Title Legislation and the Judicial Application of Australian Property Law

This article examines how Native Title is recognised and enforced within Australian property law by connecting three key elements: the High Court’s decision in Mabo v Queensland (No 2), the legislative framework created by the Native Title Act 1993 (Cth) and the Native Title (New South Wales) Act 1994 (NSW), and their judicial application in Barkandji Traditional Owners #8 v Attorney-General of New South Wales [2015] FCA 604. The analysis shows that Mabo overturned terra nullius and articulated Native Title as a communal proprietary interest grounded in traditional law and custom, which the federal legislation then generalised into a national scheme for recognition and protection. The NSW Act is largely complementary rather than in conflict, providing state-level mechanisms to implement Commonwealth principles. The Barkandji determination illustrates how this combined doctrinal and legislative framework can uphold Indigenous land rights in practice through a mix of exclusive and non-exclusive Native Title recognition.Keywords: Native Title, Mabo, Barkandji, property law, Australia, New South Wales, Indigenous land rights, federal–state relations