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Native Title

  • by Mary Rose Costello

Contents:

‘At what point does the dominant society cease to operate as a colonial invader and come to terms with the fact that the Aboriginal and Islander peoples of this land will continue to assert ownership and authority of the lands, rivers and seas of their traditional domain?’

Pat Dodson, Aboriginal Leader and Director of the Kimberly Institute

Definition

Native title is the recognition that some Aboriginals and Torres Strait Islanders have rights and interests to their land and that these existed prior to the arrival of the first European settlers. It involves the acknowledgment of both native Aboriginal laws and common Australian law, (derived from the British legal system) which can co-exist together. The native title rights and interests held by particular Aboriginal people of communities are determined by both their traditional laws and customs, as well as the interests held by others in the area or land concerned.

Background

Aboriginal people and Torres Strait Islanders occupied Australia for at least 40,000 to 70,000 years before the first British colony was established in Australia. They spoke their own languages and had their own laws and customs. Those laws and customs were characterised by a strong spiritual connection to ‘country’. However after claiming sovereignty, in 1889 the British courts applied the doctrine of terra nullius to Australia, i.e., Australia belonged to no one before it became a British settlement. High Court of Australia rulings in the 1960’s and 1970’s did the same, stating that Australia was a territory which, ‘by European standards, had no civilised inhabitants or settled law’.

Eddie Mabo

Eddie Mabo was born in 1936 on Murray Island, one of the Torres Strait islands, and is a famous figure in Australian history for his role in campaigning for Aboriginal land rights. When he was 31 years old he got a job as a gardener at the James Cook University in Townsville, Queensland. Being at the college was a massively significant period in his life. He would sit in on lectures and go to the library. It was here that his belief that it was not the crown or state that owned Murray Island came to the fore. He believed that it was the Aboriginal people of Murray Island themselves that owned the land. In 1981 a Land Rights Conference was held at James Cook University and to that audience, Eddie Mabo made a speech where he spelt out clearly land ownership and land inheritance in Murray Island. A lawyer in attendance did not miss the significance of this and suggested there should be a test case to claim land rights through the court system. Eddie Mabo was chosen by the Murray Islanders to be the one to lead that action and to challenge the principle of terra nullius. This landmark case was a long and hard fought 10-year battle. Eventually in January 1992, Mabo died of cancer. He was fifty-six years of age. Five months after he died the High Court announced its historic decision which overturned the concept of terra nullius –’no-mans land’. Later that year he was posthumously awarded the highly prestigious Human Rights Medal in recognition for his hard work and persistence in fighting for Aboriginal land rights.

Recognition

‘We don’t own the land, the land owns us. The land is my mother, my mother is the land. Land is the starting point to where it all began. It’s like picking up a piece of dirt and saying this is where I started and this is where I’ll go. The land is our food, our culture, our spirit and identity.’

S. Knight

In 1992 Native Title was recognised as a result of the landmark ruling in the Mabo v Queensland case, which overturned the assumption that Australia was ‘terra nullius’ or ‘no-mans land’. As a result of the ruling Indigenous Australians, who have maintained a continuing connection with their country according to their traditions and customs, can hold native title. This was seen as a positive step for Australia in recognising the distinct history and right to land of its indigenous people. For the first time, the common law rights in relation to land of indigenous people in Australia were recognised.

Native Title Act 1993

In 1993 the Australian Federal Government introduced legislation in response to the Mabo decision. This legislation, the Native Title Act 1993, set up mechanisms for native title claims by Aboriginal people and the National Native Title Tribunal mediates these claims. The Act was passed to recognise and protect surviving native title rights throughout Australia.

The Act:

  • provided a definition of native title
  • Set up a claim process for Aboriginal people seeking recognition of native title,
  • provided that native title would have no lesser protection than other interests in land, in relation to future developments on the land
  • allowed Aboriginal groups claiming native title to negotiate about mining developments proposed on the land before proving their claim (the ‘right to negotiate’)

By September 2008, the total number of native title determinations (decisions made on a claim) in Australia numbered 116. Of these, 81 were determinations that native title exists, therefore Aboriginal people had the right to the land.

Amendments

‘We all have equal rights to be clothed, to be sustained, to have shelter, and this also includes our homelands, big and small. These are places of significance to us, that have our songlines, where our names come from, where our dance comes from, where our art comes from, and where our law and culture comes from – it makes us who we are.’

Indigenous homelands resident, Barayuwa Mununggurr

Since the landmark Mabo case there has been some uncertainty around aspects of Native Title, mostly in relation to land owned by the government which has been leased to pastoralists (farmers). Further cases have changed the fabric of Native Title, most notably the Wik case in 1996. The Wik Decision stated that native title and farmer’s leases could co-exist over the same area and that native Aboriginal people could use land for hunting and performing sacred ceremonies, without legally exercising rights of ownership. However, in the event of any conflict between the rights and interests of farmers and native Aboriginals, the rights of farmers would prevail. This decision then led to amendments to the Native Title Act in 1998, in which the then-government published their ‘Ten Point Plan’. The amendments strengthened the security of non-indigenous leaseholders over the land. It also strengthened the powers of State governments and the mining industries at the expense of native title claimants.

Limitations

In 1999, the Convention on the Elimination of All Forms of Racial Discrimination (CERD) Committee placed Australia on its agenda of urgent business, mainly because of the Government’s 1998 amendments to the Native Title Act. The Committee found that the 1998 Native Title amendments were racially discriminatory, because they put limitations on the rights of indigenous people that did not apply to other citizens. Mick Dodson, who believes that Australia’s native title system is bias against Aboriginals, backed this view. The Aboriginal activist and Australian of the Year has insisted that native title law should be changed so the onus of proof rests with state and territory governments, not Aboriginal claimants.

Further Information about the Native Title

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