Aqua nullius

The fiction of terra nullius¹ is addressed in Mabo & Ors v The State of Queensland (No 2)(Mabo) (1992) 175 CLR 1. However the increasing commodification of water has raised the issue of whether a new form of indigenous dispossession is now subtly occurring. When the Crown abrogates its beneficial title in favour of private parties through Crown grants, it is now a legal maxim that any underlying Indigenous property rights are extinguished or at least diminished to the extent of the grant. Since 2000, the granting of exclusive rights of access to water in the various States’ water legislation, has arguably also extinguished or at least diminished surviving Indigenous water property rights. Scant research into this impact suggests that the uncrystallised quantum of compensation that may be attributable as a result of the granting of such private access rights has been deftly underestimated by policy makers.