Incorporating indigenous boundaries into Australian Law

Indigenous-derived boundaries have been existent since time immemorial in Australia. The landmark Mabo decision recognised the continued existence of Indigenous customary title under the common law and the Commonwealth Native Title Act 1993 (NTA) codified the processes for recognition and extinguishment. After thirty years of ongoing recognition, Australia is moving into the implementation and leveraging phases of legislative Native Title. This paper considers how the boundaries of these interests can be unambiguously identified on the ground if required. To do this we first discuss Indigenous customary title itself, how boundaries were understood in pre-European Australia and the nature of evidence relied on by the Federal Court to make Native Title determinations. By examining all litigated Native Title determinations made under the NTA we analyse the decisions in light of the well-established common law boundary determination principles. Similarities are drawn between the hierarchy of evidence used to reinstate typical cadastral and Native Title boundaries. From this, an elementary framework was constructed to allow a surveyor to better understand the Court’s decision-making. We conclude that it is too early to be definitive as to how the courts will resolve Native Title boundary disputes, if they ever eventuate, but there is sufficient evidence to make preliminary evaluations of the relative merit of Native Title boundary evidence.