Adnyamathanha's Native Title Claim Analysis

Question 1

In order to determine if the Adnyamathanha’s native title claim is valid, they must demonstrate that they have “maintained Aboriginal law and customs on that land” and that “no other titles allowing ownership of that land [have] extinguished…the native title” . This criteria is based on the decision in Mabo v Queensland (No 2) (1992) 175 CLR 1 (“Mabo [No 2]”) , and supported in The Wik Peoples v Queensland (1996) 141 ALR 129 (“Wik”) and Western Australia v Ward (2002) 191 ALR 1 (“Ward”) . A successful claim is also dependent on the specific South Australian legislation that provides protection to both pastoral leases in the Adnyamathanha’s area of claim – that is, the Land Act 1888 (SA) . If it can be proven that the Goldberg

Since the 1990s, the protections that native title grants have been defined under a number of case law and statute law provisions. In Mabo [No 2], the High Court ruled that Australia’s status as terra nullius was invalid and that native title had existed as a part of Australian law since 1788 . Additionally, Mabo v Queensland (1988) 166 CLR 186 (“Mabo [No 1]”) found that the Queensland Coast Islands Declaratory Act 1985 (QLD) was inconsistent with the Racial Discrimination Act 1975 (Cth) and thus invalid in its deliberate curtailing of Indigenous land rights in the Queensland area. Although the concessions granted in both Mabo cases gave unprecedented recognition to native title, it was also the precursor to the creation of limited legal rights in order for the Australian and Indigenous legal systems to coexist. The community backlash after Mabo [No 2], especially among pastoralists and farmers who feared their existing land rights would be eroded by a wave of native title claims , led the Keating Government to create the Native Title Act 1993 (Cth) . This was done in an effort to codify Mabo [No 2] in statute law, give federal recognition to the land rights of the Indigenous peoples, and to guide native titles co-existence with current Australian land rights. The Act was further amended by the Howard Government in 2007 , and

The Wik case is very similar to the Adnyamathanha’s current land claim in that several areas of native territory had been given up for pastoral lease by the Crown. In Wik, the ratio decendi was that the legislation for the pastoral leases did not provide exclusive land rights or possession to the current tenants, and that the Crown was ultimately the owner of these lands. The High Court ruled that native title therefore could co-exist with current pastoral leases in the area without significantly disrupting either parties’ right to the land. However, in the event of a conflict of rights (i.e. if the grazing and watering area of a farmer disrupted the fishing activities of Indigenous people) the native title over that particular area would be extinguished by the pastoral lease. This decision was upheld in Ward, where Kirby J stated that, “given that substantial and complex amendments to the NTA were enacted by the federal parliament upon the basis that Wik correctly stated the law,” the holding in Wik should not be revisited. However, Wilson v Anderson [2002] HCA 29 (“Wilson”) (a contemporaneous case to Ward) dismissed the findings in Wik. Callinan J noted that there was a lack of unanimous finding in Wik about the factors needed for non-exclusive possession of land rights and subsequently Wik should, “only be binding if the provisions of the Western