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Native Title is the government response to the land rights movement of Aboriginal and Torres Strait Islander peoples, which progressed to legal agitation in the Australian Courts.
Perhaps the most important case in our history, certainly one of the most notable, was Mabo v Queensland (No 2), involving the Meriam people. The Meriam people are traditional owners of the Murray Islands (which include the islands of Mer, Dauer and Waier) in the Torres Strait.
They made a claim for title over their lands but also challenged the Australian legal system by challenging the assumption that Aboriginal and Torres Strait Islander peoples had no concept of land ownership before the arrival of British colonisers in 1788.
On 3 June 1992, the High Court recognised the continuing connection and rights to land of Aboriginal and Torres Strait Islander people, it went so far as to reject 'Terra Nullius' (the idea that the land originally belonged to no one), and recognised the illegitimacy of the assertion of sovereignty by the British Crown in 1788.
The High Court said that the Meriam people were 'entitled as against the whole world to possession, occupation, use and enjoyment of (most of) the lands of the Murray Islands' and so the common law replaced the doctrine of terra nullius with one of native title.
Legislation – Native Title Act
During his Redfern Address in 1992, Prime Minister Keating said, “We need these practical building blocks of change. The Mabo Judgement should be seen as one of these. By doing away with the bizarre conceit that this continent had no owners prior to the settlement of Europeans, Mabo establishes a fundamental truth and lays the basis for justice.”
The intention of the Native Title Act, when enacted, was to provide the ‘land rights’ that the common law had set to affirm with the Mabo decision. The difficulty lay in getting the States and Territories aligned with the intent – a difficult task.
In addition to establishing the Native Title Tribunal, the Native Title Act gave jurisdiction to the Federal Court, to manage applications for recognition of Native Title and any future access to lands claimed as Native Title lands. To succeed in a claim, the threshold is demonstrably obstructive given that applicants need to prove continuous connection to land that has, for the most part, been forcibly taken. Even if native title is granted, it is not certain and can be extinguished by freehold title and most leases over the land.
Once a claim has been successfully filed and registered, the Aboriginal and/or Torres Strait Islander applicants can claim the right to negotiate against development of the land. This does not mean exclusive land rights are given. If the rights of pastoralists, mining companies, federal government, or private owners come into conflict with Native Title rights, they supersede the Native Title rights. The fact that industrial interests can continue to extinguish Aboriginal an Torres Strait Islander rights over traditional lands is the source of significant advocacy and activism within the recent actions of the land rights movement.
The reality of the Native Title Act, in practice, falls short of the intent of the Keating Government.
The Wik Peoples v The State of Queensland case in 1997 was an incredibly important one – not solely for the cultural importance of the Wik peoples being recognised – but it was also important from a legal perspective in considering the discreet point of law regarding extinguishment of native title in respect of leases.
In this case, the High Court determined that the mere grant of a pastoral lease does not necessarily extinguish any remaining native title rights. The High Court stopped short of stating that the leases were extinguished. They determined that if there was a conflict of rights, the native title holders came off second best. If there was no conflict, the rights of each co-exist.
Following this decision, although a moral victory and legally nuanced, there was considerable debate in the Australian community and parliament that raised concerns about the rights of farmers and mining companies.
In response to pressure from these industries, the Howard Government announced the Wik 10 point plan which set out the manner in which the government would amend the Native Title Act to protect the interests of these industries against claims from Aboriginal and Torres Strait Islander people.
The changes were that any decisions granting exclusive Native Title were rescinded where the land was used for ‘primary production,’ government was the arbiter of the term ‘exclusive,’ if the grant of native title impeded the government’s ability to provide services, it would be extinguished, the claims process was revised and cumbersome and there was significant obstruction to any claims where the land was intended for potential industrial use and, if so, Aboriginal and Torres Strait Islander interests were secondary.
The Wik 10 point plan undermined the nature of the native title legislation enacted under the Keating government. Although imperfect, the intent of the Keating enacted native title legislation was to confer a benefit whereas the Howard 10 point plan cut across this and acted more as a sanction or tool to extinguish.
Native Title – Land rights?
In order to understand how Native Title fails to provide ‘land rights’ we must understand what it does provide:
- Right to ‘share’ the land with other people or parties with an interest in the land; and
- It may also provide right to hunt, conduct ceremony and have a say over what development can occur on the land.
This is not the case with all Native Title claims and native title holders as the conditions are largely set by the government body that administers native title.
The native title process is a fraught one for Aboriginal and Torres Strait Islander people; there is a sense of being forced to participate in a mechanism and process which does not provide the land rights that are culturally sought. Rather, it operates as a ‘legal’ means of dispossession in its application given that there is no exclusive use or ownership of the land, it remains subject to governmental decisions with respect to mining and use so the very nature of land rights to Aboriginal and Torres Strait Islander people – the right to protect country and perform ceremony – is undermined by the native title conceptualised by the legislation.
Aboriginal and Torres Strait Islander people argue that native title is not land rights and continue to agitate to rights to their lands where industrial interests do not take precedence.