While aboriginal land use patterns may have been fragile in the face of colonisation, and severe limits were consequently placed on Aboriginal people's capacity to physically enact local traditional entitlements on many lands, the basis and key content of traditional title to such lands is not fragile but has generally been maintained with considerable robustness. In this chapter I suggest that this robustness arises in a critical sense from the pre-existing and widely continuing dual structure of traditional land tenure, which may be understood as consisting of an underlying title held within the relevant regional jural and cultural system, which underpins proximate entitlements enjoyed by small groups of individuals.

The Australian Native Title Act, at section 223.(1), defines native title as the ‘communal, group or individual rights and interests’ in relation to the land or waters that are ‘possessed under the traditional laws acknowledged, and traditional customs observed, by Aboriginal peoples or Torres Strait Islanders’. That is, the rights and interests derive from and are rooted in a wider set of living principles. These are also defined as rights and interests in the land and waters where the Aboriginal peoples or Torres Strait Islanders ‘by those laws and customs’ must ‘have a connection with’ the land or waters. That is, it is not sufficient to establish just any connection, either by continuing physical occupation or in more cerebral ways.