Australian law recognising that Aboriginal people have rights to their traditional land
Native title is the set of rights, recognised by Australian law, held by Aboriginal and Torres Strait Islander groups or individuals to land that derive from their maintenance of their traditional laws and customs. These Aboriginal title rights were first recognised as a part of Australian common law with the decision of "Mabo v Queensland (No 2)" in 1992. The doctrine was subsequently implemented and modified via statute with the "Native Title Act 1993".
The concept recognises that in certain cases there was and is a continued beneficial legal interest in land held by Indigenous peoples which survived the acquisition of radical title and sovereignty to the land by the Crown. Native title can co-exist with non-Aboriginal proprietary rights and in some cases different Aboriginal groups can exercise their native title rights over the same land.
The Federal Court of Australia arranges mediation in relation to claims made by Aboriginal and Torres Strait Islander peoples, and hears applications for, and makes, native title determinations. Appeals against these determinations can be made to a full sitting of the Federal Court and then to the High Court of Australia. The National Native Title Tribunal (NNTT), established under the "Native Title Act 1993", is a body that applies the "registration test" to all new native title claimant applications, and undertakes future act mediation and arbitral functions. The Attorney-General's Department advises the Australian Government on legal and legal-policy regarding on native title, and assists the Attorney-General to administer the "Native Title Act 1993".
Definitions: Native title/land rights.
According to the Attorney-General's Department: ;templatestyles src="Template:Blockquote/styles.css" / ;There are fundamental differences between land rights and native title. Land rights are rights created by the Australian, state or territory governments. Land rights usually consist of a grant of freehold or perpetual lease title to Indigenous Australians. By contrast, native title arises as a result of the recognition, under Australian common law, of pre-existing Indigenous rights and interests according to traditional laws and customs. Native title is not a grant or right created by governments.
The "Aboriginal Land Rights Act 1976" (see below) covers the granting of land to Aboriginal Land Trusts; setting up Aboriginal land councils; mineral rights; decision-making processes for dealing with land; dealing with income from land use agreements; and negotiations about leases for development on Aboriginal land. The "Native Title Act 1993" (NTA) gives recognition that "Aboriginal and Torres Strait Islander people have rights to land, water and sea, including exclusive possession in some cases, but does not provide ownership". It allows for negotiations over land, but does not provide for a veto over development, and nor does it grant land, as the "Aboriginal Land Rights Act" (ALRA) does.
Native title definitions.
National Native Title Tribunal definition: ;templatestyles src="Template:Blockquote/styles.css" / ;[Native title is] the communal, group or individual rights and interests of Aboriginal people and Torres Strait Islander people in relation to land and waters, possessed under traditional law and custom, by which those people have a connection with an area which is recognised under Australian law (s 223 NTA).
Commonwealth Government's indigenous.gov.au website: ;templatestyles src="Template:Blockquote/styles.css" / ;Native title is the recognition in Australian law, under common law and the "Native Title Act 1993" (Cth), of Indigenous Australians' rights and interests in land and waters according to their own traditional laws and customs.
Native title has also been described as a "bundle of rights" in land, which may include such rights as camping, performing ceremony, etc. If native title is granted, specific rights are decided on a case-by-case basis, and may only sometimes includes freehold title.
History.
Pre-Mabo.
1971 – Milirrpum.
Australia did not experience litigation involving Aboriginal native title until the 1970s, though several earlier cases tangentially involved issues of native title. In 1835, John Batman purported to sign Batman's Treaty with Aboriginal elders in the Port Phillip District. Governor Bourke declared Batman's Treaty was "void and of no effect as against the rights of the Crown" and declared any person on "vacant land of the Crown" without authorization from the Crown to be trespassing. The proclamation was approved by the Colonial Office. The official objection to the Treaty was that Batman had attempted to negotiate directly with the Aboriginal people, whom the British did not recognise as having any claim to any lands in Australia.
In 1971, in "Milirrpum v Nabalco Pty Ltd" (the "Gove land rights case") in the Supreme Court of the Northern Territory, Justice Richard Blackburn explicitly rejected the concept of native title, ruling against the claimants on a number of issues of law and fact.
1972–1976: "Aboriginal Land Rights Act".
In the wake of "Milirrpum" and the election of the Whitlam government in 1972, the Aboriginal Land Rights Commission (also known as the Woodward Royal Commission) was established in 1973 to inquire into appropriate ways to recognise Aboriginal land rights in the Northern Territory. Prime Minister Gough Whitlam introduced a new policy of Aboriginal self-determination, and initiatives such as the Aboriginal Land Fund and the National Aboriginal Consultative Committee was set up. The latter consisted of elected Aboriginal representatives, who would advise the Minister of Aboriginal Affairs. The Whitlam government introduced legislation later passed by the Fraser government as the "Aboriginal Land Rights Act 1976", which established a procedure to transfer almost 50 per cent of land in the Northern Territory (around 600,000 km2) to collective Aboriginal ownership. The Fraser government continued to implement many of the previous government's initiatives, under the description "self-management" rather than self-determination.
1979 – "Coe v Commonwealth".
In 1979, Paul Coe, a Wiradjuri man from Cowra, New South Wales, commenced an action in the High Court of Australia arguing that Aboriginal people retained rights to land as an Aboriginal nation or nations existed pre-settlement and continues to exist, and that their land had been taken by conquest rather than by settlement. The court held in "Coe v Commonwealth" (1979) that no Aboriginal nation holds any kind of sovereignty, distinguishing the US case of Cherokee Nation v Georgia (1831). However, the substantive issue of continuing land rights was not heard due to the lack of precision, vagueness and other serious deficiencies with the statement of claim presented to the court. Justice Gibbs said, at paragraph 21, 'The question what rights the aboriginal people of this country have, or ought to have, in the lands of Australia is one which has become a matter of heated controversy. If there are serious legal questions to be decided as to the existence or nature of such rights, no doubt the sooner they are decided the better, but the resolution of such questions by the courts will not be assisted by imprecise, emotional or intemperate claims. In this, as in any other litigation, the claimants will be best served if their claims are put before the court dispassionately, lucidly and in proper form'.
1981 – "Pitjantjatjara Yankunytjatjara Land Rights Act".
The South Australian "Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981" was introduced by Premier Don Dunstan in November 1978, several months prior to his resignation from Parliament. An amended bill, following extensive consultation, was passed by the Tonkin Liberal government in March 1981. This legislation gave significant rights well in advance of any other to date in Australia. In 1981, SA Premier Tonkin returned of land (10.2% of the state's land area) to the Pitjantjara and Yankunytjatjara people. However, it did not give the people the power of veto over mining activities; any disputes would need to be resolved by an independent arbitrator.
In 1984 Premier John Bannon's Labor government passed legislation to return lands to the Maralinga Tjarutja people. The legislation was proclaimed in January 1985 and was followed by a ceremony in the desert attended by Maralinga Tjarutja leader Archie Barton, John Bannon and Aboriginal Affairs Minister Greg Crafter. This granted rights over of land in the Great Victoria Desert, including the land contaminated by the British nuclear weapons testing at Maralinga.
Mabo and the "Native Title Act".
1988–1992 – Mabo.
"Mabo v Queensland (No 2)" (1992) was the foundational case for native title in Australia. In 1992 the rejection of native title in "Milirrpum v Nabalco" was overruled by the High Court in "Mabo v Queensland (No 2)", which recognised the Meriam people of Murray Island (Mer) in the Torres Strait as native title holders over part of their traditional lands. The Court rejected the notion that all Indigenous rights to land were abolished upon acquisition of sovereignty over Australia. The Court held that native title rights continued to exist, and that these rights existed by virtue of the continuing connection of Indigenous People to land, independent from a grant from the Crown. Native title would continue to exist as long as traditional laws and customs continue to be observed, unless the rights were otherwise extinguished by an incompatible grant by the Crown. Justice Gerard Brennan in this landmark decision stated:
However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. Thus although over some parts of Australia native title has been lost, in large areas of the nation's interior, native title could be recognised.
As Justice Brennan stated in "Mabo (No. 2)", "native title has its origin and is given its content by the traditional laws acknowledged by and the customs observed by the Aboriginal inhabitants of a territory".
1993 – "Native Title Act 1993".
One year after the recognition of the legal concept of native title in "Mabo", the Keating government formalised the recognition by legislation with the enactment by the Australian Parliament of the "Native Title Act 1993". The Act attempted to clarify the legal position of landholders and the processes to be followed for native title to be claimed, protected and recognised through the courts. The Act also established the National Native Title Tribunal.
Wik and 1998 amendment.
1996 – Wik.
After the Mabo decision it was uncertain as to whether the granting of pastoral leases would extinguish native title. The Wik Decision in 1996 clarified the uncertainty. The court found that the statutory pastoral leases (which cover some 40% of the Australian land mass) under consideration by the court did not bestow rights of exclusive possession on the leaseholder. As a result, native title rights could co-exist, depending on the terms and nature of the particular pastoral lease. Where there was a conflict of rights, the rights under the pastoral lease would prevail over native title rights.
1998 – "Native Title Amendment Act 1998".
The Wik decision led to amendments to the "Native Title Act" 1993 by the "Native Title Amendment Act 1998". This Act, also known as the "10 Point Plan", was introduced by the Howard government. The amendments substantially restricted Native Title by narrowing the right to negotiate and extinguishing Native Title on most pastoral and mining leases granted before 1994.
Cases after the 1998 amendment.
1998–2002 – Yorta Yorta.
"Yorta Yorta v Victoria", addressed a native title claim by the Yorta Yorta Aboriginal people of north central Victoria, which was dismissed by Justice Olney of the Federal Court in 1998. Appeals to the Full Bench of the Federal Court in 2001, and the High Court in 2002 were also dismissed.
The determination by Justice Olney in 1998 ruled that the 'tide of history' had 'washed away' any real acknowledgement of traditional laws and any real observance of traditional customs by the applicants. The 2002 High Court decision adopted strict requirements of continuity of traditional laws and customs for native title claims to succeed.
1998–2003 – Miriuwung Gajerrong.
"Ward v Western Australia" (1998) addressed an application made on behalf of the Miriuwung and Gajerrong people of the east Kimberly, over land in Western Australia and the Northern Territory. Justice Malcolm Lee of the Federal Court ruled in their favour in recognition of the native title. Western Australia appealed the decision to the Full Court of the Federal Court, then to the High Court.
The High Court held in "Western Australia v Ward" that native title is a bundle of rights, which may be extinguished one by one, for example, by a mining lease. In this case, the lease did not confer 'exclusive possession', because the claimants could pass over the land and do various things. But some parts of native title rights were extinguished, including the rights to control access and make use of the land.
The claim was remitted to the Full Court of the Federal