Native title in Australia
Native title is "the recognition by Australian law that some 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 off for native title in Australia is Mabo v Queensland (No 2) (1992).2 The recognition of the legal concept of native title in Mabo led to its recognition by the legislative system a year later when the Keating government enacted the Native Title Act 1993. It attempted to clarify the legal position of landholders and the processes that must 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.
The National Native Title Register (NNTR) is a register of approved native title determinations and is maintained by the NNTT. 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 (that native title does or does not exist) covered some 1,228,373 km2 (or approximately 16 per cent) of the land mass of Australia.4
Australia did not experience native title litigation until the 1970s. Several earlier cases tangentially involved issues of native title;5 however, it was not in 1971 that Justice Richard Blackburn of the Supreme Court of the Northern Territory explicitly rejected the concept in Milirrpum v Nabalco Pty Ltd (the "Gove land rights case").6 The decision ruled against the claimants on a number of issues of law and fact, 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.
In 1992 the assumption that Australia was terra nullius was rejected by the High Court in the Mabo v Queensland (No 2) decision, 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.7
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".
The recognition of the legal concept of native title in Mabo in 1992 led its recognition by the legislative system a year later when the Keating government enacted the Native Title Act 1993. It attempted to clarify the legal position of landholders and the processes that must be followed for native title to be claimed, protected and recognised through the courts.
The Act established the National Native Title Tribunal.
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.
The decision found that native title could coexist with other land interests on pastoral leases, which cover some 40% of the Australian land mass.
The Wik decision led to amendments to the Native Title Act 1993 by the Native Title Amendment Act in 1998. This Act, also known as the "10 Point Plan", was introduced by the John Howard-led Liberal 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.
Yorta Yorta v Victoria 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.8 The 2002 High Court decision adopted strict requirements of continuity of traditional laws and customs for native title claims to succeed.9
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.10
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.1213 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."13
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.
In 2007 the Government passed a package of coordinated measures and technical amendments to improve the performance of the native title system. 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.
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.14
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:
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
- 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.
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.14 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.15 However, the parties can apply for the termination of the mediation at any time later than three months after the commencement of the mediation.16
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.14
- List of native title claims in South Australia
- Native title legislation in Australia
- Native Title Prescribed Body Corporate
- "Exactly what is native title? – What is native title? – National Native Title Tribunal". Nntt.gov.au. 19 December 2007. Retrieved 28 January 2011.
- Russel, Peter (2005). Recognizing Aboriginal title: the Mabo case and indigenous resistance to English-settler colonialism. University of Toronto Press.
- "Native Title Corporations: Prescribed Bodies Corporate". Australian Institute of Aboriginal and Torres Strait Islanders Studies. Retrieved 28 January 2011.
- National Native Title Tribunal, Annual Report 2010-2011: President's Overview, retrieved 7 February 2012.
- Attorney-General v Brown (1847) 1 Legge 312; 2 SCR (NSW) App 30; Cooper v Stuart (1889) 14 App Cas 286; Williams v Attorney General (NSW) (1913) 16 CLR 404; Randwick Corporation v. Rutledge (1959) 102 CLR 54; Wade v. New South Wales Rutile Mining Co. Pty. Ltd. (1969) 121 CLR 177.
- Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.
- "Mabo v Queensland (No 2) ("Mabo case")  HCA 23; (1992) 175 CLR 1 (3 June 1992)". Austlii.edu.au. Retrieved 27 June 2010.
- Federal Court of Australia, Members of the Yorta Yorta Aboriginal Community v Victoria & Ors,  FCA 1606 (18 December 1998). Accessed 11 September 2011
- Members of the Yorta Yorta Aboriginal Community v Victoria  HCA 58.
- National Native Title Tribunal, Talking Native Title, Issue 1, National Native Title Tribunal, December 2001.
- Western Australia v Ward  HCA 28.
- Fergus Shiel, Past gives us strength, Aborigines say, The Age, 14 December 2005. Accessed 10 September 2011
- Federal Court of Australia, Clarke on behalf of the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v Victoria  FCA 1795 (13 December 2005), AUSTLII, 13 December 2005. Accessed 10 September 2011.
- Department of Foreign Affairs and Trade (Australia), Indigenous land rights and native title, retrieved 30 January 2012.
- Sourdin, Tania (2001). Alternative Dispute Resolution. Pyrmont, NSW: Lawbook Co. p. 92. ISBN 0-455-21820-X.
- Native Title Act. 1993. pp. ss 86B(1) and (2), 86C(2)
- Native Title Act 1993 at ComLaw
- Native Title Resource Guide at Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS)
- National Native Title Tribunal
- 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.
- 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.