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Native Title in Australia, 3rd Edition
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Native Title in Australia, 3rd Edition

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Published Nov 2014 (LexisNexis)
ISBN: 9780409333558. Soft Cover.

Bartlett, R

A clear and comprehensive treatment of native title law and its operation in Australia today


This comprehensive and authoritative work provides the reader with an understanding of both the current operation of native title in Australia and its historical and political background and development. It covers the nature of the concept, its proof, content and extinguishment, explains its limited degree of protection in the context of future acts, and discusses the application of native title principles to resource development and traditional pursuits. It necessarily considers both the common law and the Native Title Act.


In the third edition of this highly regarded work, the author provides insightful discussion and analysis of many developments, including:


  • the more moderate approach to extinguishment underlying recent High Court decisions such as Akiba v Commonwealth (2013), Karpany v Dietman (2013) and Western Australia v Brown (2014);
  • confirmation of the native title right to engage in commercial exploitation of a resource,  grounded in traditional laws and customs;
  • observations on the increased usage of indigenous land use agreements and consent determinations;
  • the inclusion of more substantial native title content in consent determinations;
  • the legislative trend for amendments to the Native Title Act to be directed to efficiency and efficacy, rather than equality, to deliver an effective and timely process


A reflection on the 20 years since the decision in Mabo is also included.


Native Title in Australia provides an ideal basis for both undergraduate and postgraduate study of native title and related indigenous issues, and is a reliable and informative source for practitioners, researchers and government bodies requiring current information in this area.

Richard Bartlett is Winthrop Professor of Law in the Faculty of Law and Co-Director of the Centre for Mining, Energy and Natural Resources Law at the University of Western Australia. He teaches mining law, resources law and native title at undergraduate, postgraduate and professional levels. His recent research has encompassed native title and resource development and water resources law. He appeared before the High Court in several leading Australian native title cases and his writings have been cited by both the High Court of Australia and the Supreme Court of Canada.


Part 1 – The Background

Ch 1 A Legal History

Ch 2 Protection and Recognition of Native Title: Mabo

Ch 3 Political and Legislative Responses to Mabo  Ch 4 Pastoral Leases and Equality: Wik

Ch 5 The Ten Point Plan: Workability and the Denial of Equality

Ch 6 Retreating from Mabo and Wik: Frozen Rights and Judicial Denial of Equality: Ward

Ch 7 An Onerous Burden of Proof: Yorta Yorta

Ch 8 Nigh Impossible to Prove Native Title in Urban Areas: Bennell

Ch 9 Returning to the first principles of Mabo and Wik in Akiba and Brown

Ch 10 Efficiency Not Equality the Focus of Legislative Change

Ch 11 Constitutional Framework of Native Title


Part 2 – The Nature of Native Title

Ch 12 The Concept of Native Title

Ch 13 Proof

Ch 14 Making a Claim Under the Native Title Act 1993

Ch 15 Content of Native Title

Ch 16 Transferability and Alienability

Ch 17 The Proprietary Nature of Native Title


Part 3 – Extinguishment and Validation

Ch 18 Jurisdiction to Extinguish and Constitutional Protection

Ch 19  Extinguishment and Impairment at Common Law: 1788–1975

Ch 20 Confirming or Deemed Extinguishment: 1788–1996

Ch 21 Extinguishment and Suspension: 1975–1996 Ch 22 Disregarding Historic Extinguishment


Part 4 – Future Dealings

Ch 23 The Future Act Process


Part 5 – Agreements and Agreement Making

Ch 24 The Right to Negotiate, Agreements and Settlements

Ch 25 The Right to Negotiate

Ch 26 Indigenous Land Use Agreements

Ch 27 Consent Determinations

Ch 28 Compensation


Part 6 – Fiduciary Obligations

Ch 29 Fiduciary Obligation as to Native Title


Part 7 – Resource Developments and Traditional Pursuits

Ch 30 Minerals and Petroleum

Ch 31 Water

Ch 32 Hunting, Fishing and Gathering Rights


Part 8 – Institutions and Jurisdiction

Ch 33 The National Native Title Tribunal and the Federal Court

Ch 34 Representative Bodies

Ch 35 State and Territory Jurisdiction


Part 9 -   Reflections on Mabo

Ch 36 Twenty Years After Mabo

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