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The Scope of Native Title Rights and Interests - Property Law Assessment Answer

December 31, 2018
Author : Andy Johnson

Solution Code: 1ADCG

Question: The Scope of Native Title Rights and Interests

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Assignment question: Native Title: The Scope of Native Title Rights and Interests

In Connection to Country: Review of the Native Title Act 1993 (Cth) (2015) the Australian Law Reform Commission (‘ALRC’) recommended that s 223 of the Native Title Act 1993 be amended to reflect the High Court of Australia’s decision in Akiba v Commonwealth (2013) 250 CLR 209. Discuss the significance of the decision in Akiba’s case with regard to the development of native title law.

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The high court’s decision regarding Akiba v Commonwealth (2013) served as a turning point in the handling of both the rights and interests of the native communities in Australia. In their decision, they set a precedence regarding how future cases that dealt with the aboriginals and their property rights would be handled in Australia. Further to this, this ruling has been very significant especially in the native title law development.

The Akiba v Commonwealth of Australia Case

The Akiba v Commonwealth of Australia case dealt with a title claim made by natives regarding a sea area that they believed to belong to them. A native tribe referred to as the Torres Strait laid claim to that land based on the fact that that land had been traditionally theirs. The ruling was an attempt to begin recognising traditional ownership of property.

From the ruling, the courts maintained that both native rights and interests should consist of rights to access all resources for any purpose in an area that is known as a claim area for the native people. Further to this, they held that these rights could be exercised both in commercial and non-commercial purposes.

In addition to conferring the rights to the native inhabitants, the ruling conferred communal rights to the entire community stating that the rights given in the native titles gave all members of the community a right to use the resources in the area under question without fear of being questioned by any other member of the same or different community.

The existence of laws in the native society gave their claim weight because it implied control of the areas that they wanted to claim. For instance, the native tribes were found to have traditional laws that they used to govern themselves. As such, the laws gave them adequate control and right over the property in the marine areas that they sought ownership for.2

The court’s decision also recognised the fact that a physical connection to the right of the water or land didn’t need to be physical. Instead, it held that even spiritual connections to any piece of land was substantial and that if any native could claim a spiritual connection to the piece of land, then they would have the right to claim that land as theirs.

In recognising these rights, it was paramount that the Australian law recognises and respects the laws and traditions that the natives adhered to. In recognising these customs and laws, the connection that the natives have with both the water and the land they are claiming was established and their claim to that land could be cemented.

On recognition, another fundamental step had to be adhered to: observation of their customs. Recognition of the rights that the natives had was not merely enough, the courts held that in addition to recognition, it was imperative that the customs be observed and acknowledged as relevant. The ruling also catered for the un-interrupt ability of the native laws. This implied that the observance of the laws that the natives ascribed to would be observed through generations with no interruptions.3

The Significance of the Decision in Akiba’s Case With Regard to the Development of Native Title Law

Akiba’s case enhanced protection of cultural knowledge in native tribes. In the native communities, cultural knowledge is a vital part of their tradition. It is a sign of oneness with both land and water where certain land marks and areas have particular cultural meanings to them. Preservation of such landmarks was important to them because that cultural knowledge could be passed between generations. The decision on the case allowed for this because it recognised the rights that the natives people have over places and landmarks that they deem to have cultural significance.

Further to cultural knowledge, preservation of sacred sites has been greatly boosted by the case. It placed emphasis on the rights and interests that natives have over their land and recognised these particular rights as lawful. It also led to development of a title law that recognised the importance of cultural knowledge and the importance of ensuring that this knowledge is maintained. Further to this, the Access to these sights that the natives deemed as sacred was also recognised and put into common law as a result of the case concerning Akiba.4

Cultural knowledge was also deemed as important because it indicated long-term habitation of the territory in question. For instance, the in-depth knowledge that the natives provided regarding the areas they were claiming proved that they had lived in those areas for generations and were therefore the ancestral owners of those territories. Further to this, communal ownership and communal responsibility was also evidenced in the way they looked after the territories they believed to be theirs.

The ruling also clarified the issue of sovereignty and ancestral land ownership. In the natives case, the land that had been theirs had been passed through sovereignty to the commonwealth in 1879.In 2003, the sovereignty extended these territories much further. However the ruling found that the laws that the islanders observed were recognised by law and as such the land given to the common wealth could still belong to the community of common law and the rights acquired over that land does not tally.

The ruling regarding physical versus spiritual connection was a major milestone for the natives. It established that it wasn’t necessary for the native tribes to prove physical connection to the land they owned. Instead, it allowed them to claim spiritual connections to the pieces of land or water that they believed they owned rights to. This made it easy for the native tribes to claim the sacred sites and water bodies that they couldn’t prove physical connections to.

The Akiba case also offered protection and security to the native tribes regarding their land. By ruling in the favour of the natives, it set precedence on how future cases would be adjudicated. Further to this, it allowed security to know that the land they lay claim to would be passed on through their generations without the risk of it ever being taken away from them by state or other parties.

By offering them freedom to undertake any activity, both commercial and non-commercial in their land, they were given economic freedom and they had leeway to use the land they lay claim to improve their economic conditions. This allowed then business opportunities which translated to improved living standards.9

The case also brought to the foreground the issue of ownership vs. emplacement. Proof of ownership in the Natives case was the existence of traditional laws that governed the society. For instance, the fact that there was evidence that the community was taking deliberate steps towards preserving and protecting their environment from encroachment from outsiders meant that there existed laws and regulations and that could provide territorial rights to that particular group.

Further to this, ownership laws started encompassing territorial behaviour where a community was allowed to say that a particular piece of land or property belonged to them as a group and from that statement alone and the existence of social order in that community the property could be deemed theirs based on these criterions.10

On giving the title and rights of ownership to the natives, precedence was also set in terms of the leeway that that group of people was given. For instance, in the ruling, they were allowed to control the entry and access of their marine territories to outsiders. As such, they could deny or give entry to the other tribes or outsiders at their own discretion.

Further to this, the issue of continuity of ownership was established in the Akiba case. It sought to establish whether the ownership of the land in question had always been in the hands of the native tribes. In establishing and demonstrating this continuity, they were able to prove that the land in question had solely been owned by the natives over generations.

The case brought to the forefront the issue of communal land ownership. In this case, the ruling gave the native rights to the community in its entirety, implying that the title could only be claimed by the entire populace rather than being claimed by any individual member of the same society. As such it ensured that continuity of ownership by the community was guaranteed. All members of the native community could lay claim to the land but one member of the same community could not claim more ownership rights than the other.

Ancestral land ownership was also reinforced following the ruling on the Akiba case. In the ruling, the fact that the natives could prove ancestral ownership of that particular place, they had rights to continue calming ownership of that piece of land. In that case, ancestral ownership was taken as being similar to fundamental ownership of that particular territory.

In addition to ancestral ownership, the issue of group ownership was further developed in this ruling. In the claims, the whole Torres people residing in the marine area had laid claim to the ownership of that particular area. As such, if they were granted ownership, they would be granted on a group basis with no one person getting to claim sole ownership. In this case, being granted the rights as a group allowed for development of group land ownership where groups of people could lay claim on tracks of land as long as they had prove of either ancestral ownership or cultural knowledge. In this type of ownership, all members in that particular community were granted rights to access that claimed land and live in that land and use the resources that that land has for both trade and consumption.

This case also brought to the limelight the issue of “protect rights”. This implied that the community that had the native title had the right to protect the land they owned from people or things that they deemed to be harmful to it. As such, it granted them the right to deny entry to any persons that they perceived to pose a danger to the safety of their land.

The ruling furthered the development of native law in terms of allowing for the issue of progressive sovereignty. In this case, it began the conversation regarding the creation of new title rights depending on the circumstances. As such, the courts began a conversation regarding the possibility of creating new rights or interests of the indigenous tribes that fall beyond the territorial sovereignty that exists currently in Australia depending on the requirements at that particular time.

In determining the geographical area that the native title could cover, the case contributed greatly to the development of native titles. In the ruling, it was decided that each native community could only claim the resources that were under the reef and water areas in which they resided. They therefore only had claim to the territories they occupied and the water areas that existed within those territories.

The ruling also developed the concept of shared areas that would be open to all communities. These lay on the space between what one community lay claim to and where the claim of the next community begun. Such distinctions were important and greatly contributed to the development of native title law.


That ruling served as a huge milestone for the country in terms of inclusiveness. For a long while, the native tribes had been exploited and neglected and had their rights and property taken from them. With this case and the eventual ruling, they began getting the recognition they deserved. In the preceding years, this ruling has been the backbone on which native title rights have been developed, and native and indigenous tribes are steadily getting legally binding ownership to the ancestral land that they have resided on for generations.

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