Native Title: What does it mean and why do we have it?

The Native Title Act was first created 23 years ago and marks a historic moment in Australian law that changed the face of  our land rights system. 

Why do we need native title?
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Following European arrival in Australia, the land rights of Indigenous Australians and their relationship with country were not recognised. The land was deemed terra nullius, Latin for ‘nobody’s land’, a legal doctrine which dictated that land which is recognised as unclaimed or unoccupied can be acquired by occupation.

For the next two centuries the ancestral land of Australia’s Aboriginal and Torres Strait Islander peoples was taken and many families were forcibly removed. 

The impact of Mabo
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There had been several unsuccessful cases discussing the concept of terra nullius before Eddie Mabo and other representatives from the Meriam people presented their claim against the Queensland Government.

Drawing on the traditional inheritance and land rights system found within the Mer (Murray Island) community in the Torres Strait, their legal claim for recognition of their land ownership began in 1982.

On June 3, 1992, the High Court of Australia ruled in favour of Eddie Mabo and the Meriam people, following a decade of litigation, recognising that they had ‘native title’ over their lands.

In the lead judgement Justice Brennan had this to say about the doctrine of terra nullius.

“The fiction by which the rights and interests of Indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country.”

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The Native Title Act is born
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Following the High Court’s decision, the Keating Government passed the Native Title Act 1993, which officially began 24 years ago.

This was a breakthrough for Indigenous Australians, who for the first time since colonisation had the chance to argue the ownership of their traditional lands under common law.

 

It was an important stepping-stone towards acknowledging Aboriginal sovereignty and opening the door for further claims and compensation.

"[T]he common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands” (excerpt from the Preamble to the Native Title Act 1993)

Changes to the Native Title Act
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Several amendments have been made to the original Native Title Act which have significantly modified the process of applying for native title claims.

The Howard government's Native Title Amendment Act 1998 was a result of the 1996 Wik Decision, in which the High Court of Australia declared mining and pastoral leases could co-exist with native title. This legislation prevented the Racial Discrimination Act 1975 from applying to certain sections of the Native Title Act 1993.

In 2007 the Federal Court was given further powers to dismiss claims that did not progress toward native title determination.

The Act was amended again in 2009 by the Rudd government and was considered a slight improvement to previous modifications. It provided more assistance to those making claims and loosened the rules of evidence. The strong oral traditions in Indigenous cultures practiced over the years made it difficult to have written proof of a continuous connection to land. Courtroom set-ups were changed to allow witnesses to give evidence orally and in a narrative form, as opposed to the previous question and answer format that many were not accustomed to.

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The slow pace of change
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As experienced by the Mabo v Queensland case, requests for native title often move slowly and can be dismissed after years of litigation. For example, a claim by the Yaegl people was finally put to rest in June 2015, almost 20 years after it was lodged.

Those applying for native title must show evidence that they have a continuous connection to the land and have maintained their traditional customs. Communities have found that proving 'continuous connection to the land' can be close to impossible in light of their ongoing displacement, the stolen generations and the dismantling of traditional language and culture.

A renowned case involving a rejection of a native title claim was put forward by the Yorta Yorta peoples of Victoria in 1994. In 1998 the Federal Court ruled against them, and in 2002 the High Court upheld the decision stating that the "tide of history had washed away," their connection to land and subsequent loss of culture. The claim was subsequently dismissed.

Where to next?
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The Australian Law Reform Commission conducted a major review  of the Native Title Act and its amendments in 2015.

Findings from the review tabled on June 4, 2015, found the native title claims process to be time wasting, unreasonably complex and called for "constructive change to a system that is often characterised by formulaic approaches to dispute resolution and slowness."

The scale of land rights claims have also changed over time allowing for bigger cases to be heard. As of December of 2015 the High Court oversaw a legal battle between the West Australian government and a group of Noongar people over a native title compensation deal worth a potential $1.3 billion. 

This decision was overturned on the 2nd February 2017 by the Federal Court, which found the agreement could not be registered because some Aboriginal representatives had refused to sign off on it. The decision could impact on countless other existing and future Indigenous Land Use Agreements.

The Attorney General, George Brandis, told parliament that the government would introduce an “urgent” bill to reverse the effect of the federal court decision. The National Native Title Tribunal is currently reviewing the impact of the ruling on existing Indigenous Land Use Agreements.