Native Title in the New Millennium Native Title Representative Bodies Legal Conference 16-20 April 2000: Melbourne, Victoria

The law can sometimes be glacial in its evolution, moving ever so slowly through fine points of interpretation by judges and equally careful (if not ponderous) processes of legislative reform. Only when an observer stands back and looks at a particular area of jurisprudence over a period of a few decades can the movement be clearly detected. In other instances, the law can seem to be like an earthquake. Everything appears to be quiet and then the High Court or the Parliament destroys an entire legal landscape and replaces it with a new structure. Depending on your perspective, the law of native title can embody both the characteristics of the glacier and the earthquake. Indigenous Australians and those who argue for the inherited rights of the traditional owners of Australian lands and waters, could reasonably assert that Mabo v Queensland [No 2] (fMabo'Y was generations in coming. It was a decision built on the foundations (if not the wreckage) of previous decisions, royal commissions, statutory land rights successes and failures, international treaties and painfully slow social change. For others, Mabo appeared as a bolt out of the blue, the invention of lawyers which shook the principles upon which the land management system and economic development had operated for well over a century. Regardless of the perspective that is held of the Mabo decision, it undoubtedly was the trigger for the most dynamic period of contemporary Australian jurisprudence. Mabo told us that Aboriginal and Torres Strait Islander customary law was the source of traditional rights to land which were recognisable by the common law. It gave the common law basic principles and a framework for understanding the relationship between native title rights and the actions taken by governments in granting statutory interests in land. It did not, nor could it, do much more than this. The questions of who held native title rights, the geographic locations where the rights could still be *