Native title in Australia

In Australia, the common law doctrine of Aboriginal title is referred to as native title, which is "the recognition by Australian law that Indigenous people have rights and interests to their land that come from their traditional laws and customs".^[1] The concept recognises in certain cases there was and is a continued beneficial legal interest in land held by local Indigenous Australians which survived the acquisition of radical title to the land by The Crown at the time of sovereignty. Native title can co-exist with non-Indigenous proprietary rights and in some cases different Indigenous groups can exercise their native title over the same land.

The foundational case for native title in Australia is Mabo v Queensland (No 2) (1992).^[2] 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 ("NTA"). 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 Federal Court of Australia mediates claims made by Aboriginal and Torres Strait Islander peoples 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.

Native Title Determinations

The National Native Title Register (NNTR), maintained by the NNTT, is a register of approved native title determinations. A determination can be that native title does or does not exist. As part of the determination of native title, native title groups are required to nominate a Native Title Prescribed Body Corporate to hold (as trustee) or manage (as agent) their native title. Following a determination, Prescribed Bodies Corporate are entered onto the NNTR. At this point, the corporation becomes a Registered Native Title Body Corporate (RNTBC).^[3]

On 1 July 2011, the 160 registered determinations of native title covered some 1,228,373 km² (or approximately 16 per cent) of the land mass of Australia.^[4]

Timeline

1971 - Milirrpum

Australia did not experience litigation involving Aboriginal native title until the 1970s, though several earlier cases tangentially involved issues of native title.^[5] In 1835, John Batman purported to sign the 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.^[6] 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, but rejecting the doctrine of Aboriginal title in favor of terra nullius, which held that land belonged to no one at the time of British settlement.^[7]

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. The Fraser Government passed the Aboriginal Land Rights Act 1976 which established a statutory procedure that transferred almost 50 per cent of land in the Northern Territory (around 600 000 km2) to collective Indigenous ownership.^[8] The subsequent Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 had a similar effect in South Australia.

In 1981 South Australian Premier David Tonkin returned 102,650 square kilometres of land (10.2% of the state's land area) to the Pitjantjara Yankunytjatjara people. The land rights legislation 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 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.^[9] In May 2004, following the passage of special legislation, Premier Mike Rann handed back title to 21,000 square kilometres of land to the Maralinga Tjarutja and Pila Nguru people. The land, 1000 km Northwest of Adelaide and abutting the Western Australia border, was then called the Unnamed Conservation Park. It is now known as Mamumgari Conservation Park. It includes the Serpentine Lakes and was the largest land return since 1984. At the 2004 ceremony Premier Rann said the return of the land fulfilled a promise he made to Archie Barton in 1991 when he was Aboriginal Affairs Minister after he passed legislation to return lands including the sacred Ooldea area (which also included the site of Daisy Bates' mission camp) to the Maralinga Tjarutja people.^[10] The Maralinga Tjarutja lands now total 102,863 square kilometres.

In 1979, Paul Coe commenced, as plaintiff, an action in the High Court of Australia arguing that at the time white people came to Australia, Aborigines were there and therefore the Court had to recognise their rights. (Coe v Commonwealth [1979] HCA 68). Coe's claim was never heard due to serious deficiencies with his statement of claim. Chief 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'.

1988–1992 – Mabo

In 1992 the doctrine of terra nullius confirmed in Milirrpum v Nabalco was overruled by the High Court in Mabo v Queensland (No 2), which recognised the Meriam People of Murray Island in the Torres Straits as native title holders over part of their traditional lands. The Court repudiated the notion of absolute sovereignty over Australia to the Crown at the moment of European settlement. The Court held, rather, that native title existed without originating from the Crown. Native title would remain in effect unless extinguished by a loss of connection to the land. 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.^[11] 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 Indigenous 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.

1996 – Wik

After the Mabo decision, uncertainty surrounded whether native title claims over pastoral leases would extinguish these leases. The Wik Decision in 1996 clarified the uncertainty. The court found that the statutory pastoral leases 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 extinguish the remaining native title rights.^[12] The decision found that native title could coexist with other land interests on pastoral leases, which cover some 40% of the Australian land mass.

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. It streamlined the claims system and provided security of tenure to non-Indigenous holders of pastoral leases and other land title, where that land might potentially be claimed under the Native Title Act 1993. The Act placed some restrictions on native title claims.

1998-2002 - Yorta Yorta

Yorta Yorta v Victoria^[13] was a native title claim by the Yorta Yorta Indigenous 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.^[14] The 2002 High Court decision adopted strict requirements of continuity of traditional laws and customs for native title claims to succeed.^[15]

2001 – Yarmirr

Yarmirr v Northern Territory (2001) was an application made on behalf of a number of clan groups of Aboriginal people to an area of seas and sea-beds surrounding Croker Island in the Northern Territory. It was the first judgment by the High Court of native title over waters. The judge, Olney J, determined that members of the Croker Island community have a native title right to have free access to the sea and sea-bed of the claimed area for a number of purposes. The case established that traditional owners do have native title of the sea and sea-bed; however common law rights of fishing and navigation mean that only non-exclusive native title can exist over the sea. The decision paved the way for other native title applications involving waters to proceed.^[16]

2002 - Ward

Western Australia v Ward (2002) held that native title is a bundle of rights, which may be extinguished one by one, for example, by a mining lease.^[17] 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. In Western Australia v Ward (2013) the appellant appealed from the HCA decision, to award an interlocutory order seeking that native title rights and interests was a basis for compensation. The appeal was revoked.

2005 - Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagalk

The Indigenous peoples of the Wimmera region of Western Victoria won recognition of their native title on 13 December 2005 after a ten-year legal process commenced in 1995 when they filed an application for a determination of native title in respect of certain land and waters in Western Victoria. It was the first successful native title claim in south-eastern Australia and in Victoria, determined by Justice Ron Merkel involving Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagalk people.^[18][19] In his reasons for judgement Justice Merkel explained the significance of his orders:

"The orders I propose to make are of special significance as they constitute the first recognition and protection of native title resulting in the ongoing enjoyment of native title in the State of Victoria and, it would appear, on the South-Eastern seaboard of Australia. These are areas in which the Aboriginal peoples suffered severe and extensive dispossession, degradation and devastation as a consequence of the establishment of British sovereignty over their lands and waters during the 19th century."^[19]

2006 – Noongar

In 2005 the Federal Court brought down a judgment recognising the native title of the Noongar people over the Perth metropolitan area, known as Bennell v State of Western Australia [2006] FCA 1243.

Justice Wilcox found that native title continues to exist within an area in and around Perth. It was the first judgment recognising native title over a capital city and its surroundings. The claim area itself is part of a much larger area included in the "Single Noongar Claim", covering the south-western corner of Western Australia. An appeal was subsequently lodged and in 2008 the Full Bench of the Federal Court upheld parts of the appeal by the Western Australian and Commonwealth governments against Justice Wilcox's judgment.

2007 – Native Title Amendment Act 2007

In 2007 the Howard Government passed the Native Title Amendment Act 2007^[20] and the Native Title Amendment (Technical Amendments) Act 2007, a package of coordinated measures and technical amendments to improve the performance of the native title system.^[21][22] These are aimed at making the native title process more efficient and to speed up the determination of whether native title exists on the 580 claims that had been registered but not yet determined.

2009 – Native Title Amendment Act 2009

The Native Title Act 1993 was further amended by the Rudd Government by the Native Title Amendment Act 2009.^[23][24]

Native title rights and interests

Native title concerns the interaction of two systems of law:

• The traditional laws and customs that regulated the lives of Aboriginal and Torres Strait Islanders prior to Australia's colonisation by the British ("customary Aboriginal law"). Although colonisation wrought social changes upon the Aborigines, customary Aboriginal law continues to regulate the lives of many Indigenous Australians.
• The now dominant, English-derived legal system, which was brought to Australia with colonisation, which includes the common law and enacted laws ("Australian law").

Only Australian laws are enforced directly in Australian courts. Native title is not a concept that forms part of customary Aboriginal law – rather, it is the term adopted to describe the rights to land and waters possessed by Indigenous Australians under their customary laws that are recognised by the Australian legal system.

Native title is able to be possessed by a community or individual depending on the content of the traditional laws and customs; inalienable other than by surrender to the Crown; and ranging from access and usage rights to rights of exclusive possession. Native title rights and interests are based on laws and customs that pre-date the British acquisition of sovereignty, and may exist over land and waters to the extent that they are consistent with other rights established over the land by law or executive action.^[8][25]

According to the National Native Title Tribunal:

The native title rights and interests held by particular Indigenous people will depend on both their traditional laws and customs and what interests are held by others in the area concerned. Generally speaking, native title must give way to the rights held by others. The capacity of Australian law to recognise the rights and interests held under traditional law and custom will also be a factor.

Native title rights and interests may include rights to:

• live on the area
• access the area for traditional purposes, like camping or to do ceremonies
• visit and protect important places and sites
• hunt, fish and gather food or traditional resources like water, wood and ochre
• teach law and custom on country.

In some cases, native title includes the right to possess and occupy an area to the exclusion of all others (often called ‘exclusive possession’). This includes the right to control access to, and use of, the area concerned. However, this right can only be recognised over certain parts of Australia, such as unallocated or vacant Crown land and some areas already held by, or for, Indigenous Australians.

Native title rights and interests differ from Indigenous land rights in that the source of land rights is a grant of title from government. The source of native title rights and interests is the system of traditional laws and customs of the native title holders themselves.^[1]

Native title mediation

Native title in Australia frequently involves mediation between native title parties and other groups with an interest in native title, such as the Australian Government, state and territory governments, miners and pastoralists.^[8] Due to the large number of respondents to native title applications, the process of mediation differs somewhat from that of other mediations. Rather than the parties referring a dispute to mediation, the Federal Court determines whether the National Native Title Tribunal or some other mediating body should mediate a matter. The mediator does not decide whether native title should be recognised over the land in question; rather it has the role of mediating contested applications and applications for compensation which are lodged in the Federal Court.

The parties must mandatorily attend a native-title mediation unless the Court has granted leave.^[26] The Court, either on the application of a party or of its own motion, must order that there be no mediation if they find that mediation will be unnecessary and if there is no likelihood of the parties being able to reach agreement in mediation.^[27] If mediation does take place however, parties can apply for the termination of the mediation three months after commencement of mediation.^[28]

As familiarity with the provisions and processes of the Native Title Act 1993 has become more widespread, the use of voluntary Indigenous Land Use Agreements and consensual determinations of native title applications is now not uncommon.^[8]

See also

• List of native title claims in South Australia
• Native title legislation in Australia
• Native Title Prescribed Body Corporate

References

External links

• Native Title Act 1993 at ComLaw
• Native Title research and resources at Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS)
• National Native Title Tribunal
  • online
  • Map of current determinations
• Attorney-General's information on native title
• Federal Court of Australia Native Title Infobase, The Native Title Infobase includes selected material commencing from 1839 to the present day and covers all aspects of native title. It gives reference to Australian material including journal articles, book chapters, books, conference papers, reports and press clippings. It also includes relevant material from other jurisdictions such as New Zealand, United States, Canada, Africa and Asia.
• List of finalised Native Title cases at the Federal Court of Australia
• Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Reports, 1994–2011
• Department of the Parliamentary Library (2003) The Mabo debate: a chronology Accessed 17 February 2009
• "Promise of Mabo not yet realised". The Australian. 29 May 2010. Retrieved 31 May 2010.