Native title as a source of Indigenous water rights

Following the seminal 1992 High Court decision in Mabo v Queensland [No 2] (‘Mabo’), ¹ the legal fiction that Australia was terra nullius, or uninhabited, was finally put to rest. Prior to Mabo, in Australian law Indigenous Australians had no legal rights to land arising from their original occupation. The Mabo decision thus marked a watershed moment in Australia’s history of settler relations with its original Indigenous inhabitants. With the rejection of the terra nullius doctrine came the recognition that Australia’s Indigenous peoples were the prior owners and occupants of this country, and that any rights and interests that survived British sovereignty could be recognised by the common law. Native title thus emerged, albeit not unscathed, from the shadows of the land ownership regime imported by the colonial settlers.