Commercial native title?

8.19       The inquiry as to whether native title includes rights and interests of a commercial nature, including rights to trade, raises central issues about the scope of native title and ‘the capacity of native title to support Indigenous economic development and generate sustainable long-term benefits for Indigenous Australians’.^[18]

8.20       For Indigenous communities, there are expectations that native title can provide the platform for redressing disadvantage and a more secure economic future for native title holders. Principle 5 identifies that reform should promote sustainable long-term social, economic and cultural development for Aboriginal people and Torres Strait Islanders.

8.21       These considerations form the context for the following discussion of the law in relation to the nature and content (scope) of native title rights and interests. There are three main points. First, there are questions about the ‘nature’ and ‘content’ of native title rights and interests. Secondly, with respect to the ‘nature’ of native title, case law has affirmed that a distinction should be made between the native title right and its exercise. Thirdly, questions are raised about the extent to which the exercise of a right (with its origins in the pre-sovereignty period) can develop—for example, by reference to adaptations such as modern technologies.