Native Title
10 December 2010
Download a copy of the Native Title Q&A
This month marks the 14th anniversary of the 1996 High Court decision in the Wik case. The case followed on from the historic Mabo native title decision in 1992 and together, these cases underpin Australia’s native title system. Issues and controversy around native title still play a large role in the relationship between Indigenous and non-Indigenous Australians. Below we try and answer some important questions about this issue.
1. What is native title?
2. Why does Australia have native title laws?
3. If Aboriginal and Torres Strait Islander peoples have rights to land, what does that mean for other land owners?
4. Does native title give Aboriginal and Torres Strait Islander peoples special rights?
5. How is native title different from land rights?
6. Does native title stop development and slow economic growth?
7. What is the Wik decision?
8. What was the ’10 point plan’?
9. How is native title recognised?
10. What is being done to make the native title process work better?
11. How does native title bring benefit to Aboriginal and Torres Strait Islander peoples?
1. What is native title?
Native title is the name for the ownership rights and interests of Aboriginal and Torres Strait Islander peoples in their traditional land that can be recognised by Australian law. In order for native title to be recognised, Aboriginal and Torres Strait islander people claiming native title must prove continuous customary connection to the land being claimed.
The National Native Title Tribunal states, 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.
2. Why does Australia have native title laws?
Aboriginal and Torres Strait Islander peoples’ occupation of Australia predates European settlement by at least 50,000 years. When the British arrived, they did not recognise that Aboriginal people had rights to land, so they regarded the land as freely available to the Crown. This has been described as the land being ‘terra nullius, land belonging to no-one’. Aboriginal and Torres Strait Islander peoples’ land was taken without any agreement or compensation. This process is called ‘dispossession’.
In 1992, in what is known simply as the ‘Mabo case’, the idea that the settlement of Australia extinguished any Aboriginal rights to land was overturned by the High Court. Put simply, this decision said that under Australian law, Indigenous people have rights to land—rights that existed before Europeans arrived and, where they have not been extinguished by lawful acts inconsistent with the survival of those rights, can still exist today. These rights are called native title.
The preamble to the Native Title Act sets out why dealing with what native title survives is important to Indigenous people:
Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement. They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands. As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.
The Native Title Act is important for all Australians. As well as providing ways in which native title interests can be formally recorded and recognised in Australian law it confirms the validity of the titles granted by governments against native title and ways in which new interests in land such as mining leases can be created where native title still exists or may exist.
3. If Aboriginal and Torres Strait Islander peoples have rights to land, what does that mean for other land owners?
Generally speaking, native title gives way to the rights granted by governments and held by others. For example, freehold residential land and farmland, and land held under residential, commercial or community purpose leases which are inconsistent with the survival of any part of native title cannot be claimed. Public infrastructure such as roads, schools and hospitals are also exempt. This means that most of the land in towns and cities cannot be subject to a successful claim.
4. Does native title give Aboriginal and Torres Strait Islander peoples special rights?
Native title can only be claimed and recognised by and for Indigenous people as the rights flow from their historic and continuing ownership.
5. How is native title different from land rights?
Although they are sometimes referred to as though they are the same thing, land rights and native title are quite different.
With land rights, the government recognises Aboriginal and Torres Strait Islander interest in the land where, for example, they have a traditional connection to the land or where traditional owners have lived in an area for many years on reserves or missions by providing for a form of government granted legal tenure. These rights flow from Acts of Parliament. Most commonly the community owns the land as inalienable freehold title. Land rights are recognised in state laws as well as by Commonwealth law in the NT and the ACT.
6. Does native title stop development and slow economic growth?
Under the Native Title Act 1993, mining companies and other developers are required to negotiate with native title holders and others with a potential interest in the land before commencing any development. The interests of native title holders may well be affected by mining or other industries operating on native title land. Native title holders do not have the power to say no to developments; instead they have a right to negotiate. The outcome of successful negotiations may take the form of Indigenous land use agreements (ILUAs). If the parties can’t reach a negotiated agreement within certain time limits the issue can be subject to compulsory mediation and determination by the National Native Title Tribunal.
Although native title is generally limited to traditional usage rights it may provide opportunities for Indigenous economic development through the right to negotiate as well as such things as cultural tourism, fire and environmental management, and carbon sequestration. For example, in Arnhem Land in the Northern Territory, native title holders are involved in a fire management project called the West Arnhem Land Fire Abatement Project. Native title holders bring their deep knowledge of their land and invaluable skill and expertise to the project, which offsets some of the greenhouse gas emissions from the Liquefied Natural Gas plant in Darwin and brings social and economic benefits to their communities.
7. What is the Wik decision?
In 1996, four years after the Mabo decision another native title case went to the High Court. The Wik peoples of Cape York’s case further developed native title law by confirming that limited native title rights could still exist over lands which were held under pastoral leases where those remnant rights were not inconsistent with the rights of the pastoralist. Previous to this decision many people had believed that all such leases completely extinguished native title. As a result at the time it was a controversial decision.
8. What was the ’10 point plan’?
Due to the controversy and extensive public debate which followed the High Court’s decision in the Wik case, the Howard Government developed a ‘10 point plan’ for amending the Native Title Act. The amendments were criticised for winding back some of the advancements for Indigenous peoples’ capacity to make claims.
9. How is native title recognised?
To make a claim for native title, the relevant group of people must first file an application in the Federal Court seeking a determination that recognises them as native title holders. The public are notified of this application so that other interested parties can choose to become involved in the claim process.
The application may then be referred to the National Native Title Tribunal or another person or body for mediation. The Tribunal functions as a mediator between the Aboriginal or Torres Strait Islander claimants and all other parties, such as farmers, businesses and governments. The Tribunal does not decide whether or not native title exists—its role is to provide independent information and impartial assistance to all of the parties involved in a claim. The purpose of mediation is to give the parties a chance to come to an agreement about the native title claim without going to trial.
If an agreement is reached that native title exists, an application for a consent determination can be made to the Federal Court. If no agreement is reached the application can go to trial. The Court will then determine on the evidence whether or not native title exists, and if so what rights it carries.
It can be a long and complex process, involving difficult legal issues and extensive historical, archaeological and anthropological research. Claimants must establish a ‘continuing connection’ to the land and the ongoing survival of a decision making group which operates under rules which are traced back to pre European settlement. The difficulties faced by native title applicants, particularly in the more settled parts of Australia where there has been extensive extinguishment of native title and greater dispossession and dislocation of Indigenous people is reflected in the large number of claims which have yet to be either determined or dismissed.
10. What is being done to make the native title process work better?
It is in everybody’s interests for native title claims to be resolved quickly and fairly. To try and achieve this, there have been various attempts at reforming the process over the years. One of the most recent developments was the Native Title Amendment Act 2009, which gave the Federal Court the central role in managing native title claims and implemented other measures to improve the claims process.
In some cases, such as the Ord Stage 2 Agreement in Western Australia, State governments have adopted a wider approach to native title, including it in land use planning to ensure Aboriginal people have their rights recognized in a development context.
More recently, changes have also been made to the native title process in Victoria. Under the Victorian Traditional Owner Settlement Act 2010 traditional owners can negotiate their claims with the Victorian Government outside of the Court process. Professor Mick Dodson, Chair of the Traditional Owner Land Justice Group which worked with the Victorian Government to make the changes, has said that the approach has the capacity to deliver more practical benefits and economic opportunities.
These examples show that governments have the capacity to make the native title process quicker, more flexible and more likely to ensure opportunities for economic development as well as recognition of traditional rights and interests.
11. How does native title help to bring benefits to Aboriginal and Torres Strait Islander people?
Native title can bring economic, social and spiritual benefits to Aboriginal and Torres Strait Islander communities.
For many Aboriginal and Torres Strait Islanders, just the recognition of native title rights is important. For them land or ‘Country’ as it is often called, is both a physical place created by ancestral beings and a sacred, invaluable place inhabited by ancestors. The ability to live on, access and make decisions about this Country is vitally important to people’s identity and culture.
As one traditional owner says:
'Home is like your house, but home to us is like our Country ... No matter where we go we'll always come back to that tribal Country; where old people used to walk around and used to hunt. That's another way of home. And wherever you go you'll always come back and you'll always have a sense of belonging in that place ... Even if a Martu person was born in one little tree in the desert somewhere and he went up north, first time he seen whitefellas, and he went up north or south or east or west and lived on someone else's Country but he was longing for his Country and wanted to go back ... After he passed away he'll always go back to his home. In his spirit, he'll fly back to his home ... We come out through the Country, we come out through the dreams ... and then we live. And when we die we become part of the Country. That's what we believe. When we die, we become one with the Country. Our spirit goes back.'
Curtis Taylor, Parnngurr, 2009
In addition to spiritual gains, native title can provide opportunities for social and economic advancement. Most new mining projects today involve opportunities for training and employment and business development. In other areas there are environmental management, tourism and other opportunities. For example, the rent that is collected from tourists visiting Uluru is used by the traditional owners to pay for community development projects in central Australia such as upgrading power supplies, youth services and supporting community members needing special health care. Native title holders, governments and some developers are continuing to work to improve the native title system so it can improve the lives and prospects of Indigenous Australians.
