Section 51(XXXI) of the Australian Constitution and the compulsory acquisition of native title

This article explores the application of J W Harris's theory of communitarian property to Australian native title to bring a new perspective to the compulsory acquisition of native title. Communitarian property such as native title has two dimensions - internal content and external protection. The internal content is derived from the traditional, social, economic and cultural practices of Indigenous communities. External protection is the protection of the internal content afforded by the dominant legal system. When this form of property is acquired, the impact spans both internal content and external protection dimensions. The article considers how the recognition of the dual impact can warrant a broader approach to considering whether 'just terms' have been provided for a compulsory acquisition of native title.