This article argues that the definition of native title in the Native Title Act 1993 (Cth) has been interpreted by the High Court to contain at least two restrictions. This argument is advanced through an examination of the protection of Indigenous cultural knowledge by the native title regime. Part 1 outlines a definition of cultural knowledge, establishes a proposed categorisation of rights in relation to that knowledge and identifies arguments for their protection. Part 2 introduces the Native Title Act 1993 (Cth) in the context of the development of native title jurisprudence in Australia, sets out the statutory definition of native title and the relevant part of the majority’s reasons in Western Australia v Ward (2002) 191 ALR 1. Part 3 is a discussion of that definition and its treatment by the High Court in Ward. Two concepts are identified and discussed – the requirement of specificity in defining a claim and an implied restriction favouring a physical connection to land or water.
This article was originally published as Arcioni, E, Defining native title - Indigenous cultural knowledge and the Native Title Act, Southern Cross University Law Review, 7, 2003, 50-88. Journal information available here.