This paper seeks to reanalyse the Mabo case from the point of view of non-discrimination. It argues that the Mabo judgment may have been discriminatory in finding that pre-existing entitlements in surviving native title are restricted to the limited range of activities that can be proven by reference to traditional law and custom and that native title fails as a means of improving the economic and social opportunities of Indigenous Australians because of these restrictions.
It suggests that native title law should be reformed on the basis of possession to recognise Indigenous peoples’ full and beneficial ownership of their land where this has not been extinguished.
The allocation of property rights to Indigenous people should not be limited by misguided and discriminatory assumptions about Indigenous culture and custom. About the Author Shireen Morris is the Constitutional Reform Research Fellow at Cape York Institute for Policy and Leadership. Her areas of research work include constitutional reform, racial discrimination, native title and, more recently, family violence and child reunification in Indigenous communities.