Aboriginal native title

What is 'native title'?

You can think of native title as a bridge between customary Aboriginal laws which have existed for many thousands of years and white Australian laws defined and observed by the invading British people.

Native title is tightly linked with a court case the Australian High Court had to deal with in 1982, called the Mabo case.

Native title and Land Rights are often used synonymously. While native title is an entitlement to land it does not cover the rights to that land.

Native Title [is] one of the most complex and slowest parts of the justice system. —Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner [21]

Can native title take away my backyard?

Many people got a wrong idea of what native title is about and which land can be claimed under it. The media is not innocent about these wrong beliefs being very common. Take the test:

What land can be claimed by Aboriginal people under the Native Title Act?

Local parks
Beaches that are National Parks
Vacant government-owned land
Cattle stations
Anyone's property if it's on sacred sites
Backyards if you don't own your property yet

Tell me!

Central Land Council Director David Ross said when nine parks and reserves in South Australia were handed back to Aboriginal people: "Non-Aboriginal people who have previously enjoyed access to these parks have nothing to fear from the handback, but can be pleased that the custodians of these places now have a greater involvement in their care and protection." [27]

Native title is no threat to non-indigenous interests.—Gary Highland, national director Australians for Native Title and Reconciliation (ANTaR) [5]

Native title is born: The Mabo case

Up until 1982 it was common belief that Australia has been 'empty' prior to settlement by the English people. The Latin term for an 'empty country' is terra nullius. It would gain special attention in the next ten years.

The colonial view was that Australia's 'natives' had no connection to the land because the British could not see 'settled' Aboriginal people, houses or farmed land, which were all characteristics of white life in England. Most of these misconceptions have now been disproved (see Convincing Ground by Bruce Pescoe, Gunyah, Goondie + Wurley by Paul Memmott).

Eddie Koiki Mabo was a member of the Meriam people who are the traditional owners of Mer in far North Queensland. Mer is an island of the Murray group (Mer, Dauar and Waier islands).

Eddie Mabo was an activist for his people's rights which he defended passionately. In 1982 Eddie Mabo and four other Torres Strait Islanders wanted their traditional land rights acknowledged. They claimed that their islands had been continuously inhabited and exclusively possessed by their people who lived in permanent settled communities with their own social and political organisation [1].

Eddie Mabo claimed that the rights of his people had not been extinguished when the British Crown claimed land title over Australia. He wanted Australia to recognise these rights.

The High Court's Mabo ruling

1992

June3rd

The High Court took ten years to decide. On 3rd June 1992 it ruled that

• The Crown had acquired a title to the land of Australia (meaning Australia as a land had been claimed by the Crown to belong to the white people). This title could not be challenged in court.
• The Aboriginal people are still entitled to a claim of their own.
• In certain cases the Aboriginal people's claim could be voided ('extinguished') by events which have happened since the white people arrived and which broke the continued connection of Aboriginal people with their land.

Native title is extinguished through freehold or land leases, but native title continues to exist on Aboriginal reserves, vacant Crown land, stock routes and national parks, but only if the local system of traditional law recognises present owners or managers [1]. If native title was extinguished Aboriginal people have to be compensated.

To remember this important day in Aboriginal history, June 3rd is a bank holiday in the Torres Shire.

Native title is very important to us because it has allowed us to get our country back, to protect our spirits and sites, to go camping, hunting and fishing. Before native title we never had any recognition as traditional owners, we had no rights in our own country. Now we feel empowered.—Nyaparu Rose, Nyangumarta Elder, Western Australia [24]

Three of the five applicants died before the High Court passed down its ruling, including Eddie Mabo. His legacy lives on in the common name of this ruling, the Mabo case. On June 3, 2007 a sculpture honouring Eddie Mabo was unveiled in Townsville (north Queensland) where Eddie spent most of his adult life [6].

On May 21, 2008 James Cook University in Townsville named its library the Eddie Koiki Mabo Library [11]. Eddie Mabo had been a gardener at this university from 1967 to 1975 and spent hundreds of hours in the library reading about the histories of Indigenous cultures. It was there that he found out in a conversation with professors that his island was legally considered to be Crown land.

Native Title Act: Securing native title rights

1993

December 

After the Mabo decision Aboriginal Land Councils and other Indigenous organisations lobbied the federal government to legislate to protect any native title that had survived 200 years of colonisation [4].

They also wanted to have a more flexible and appropriate alternative to the courts for claiming and recognising native title. Mining and pastoral industries, however, opposed the Mabo ruling.

In December 1993 the Native Title Act put into law what the High Court's Mabo decision had ruled and made native title claims possible. The Native Title Act established a National Native Title Tribunal and set out processes for the determination of native title rights and dealings on native title land.

It is little understood in the wider community that valid land claims remain the sole form of compensation available to our people in NSW for the dispossession of our lands.—Bev Manton, Chair, NSW Aboriginal Land Council [18]

Native Title Tribunal

The National Native Title Tribunal was established to assist in the implementation of the Native Title Act. The tribunal [3]

• registers native title claims,
• mediates native title claims under the direction of the Federal Court of Australia (FCA); the Court makes determinations on whether native title exists,
• assists people in negotiations about proposed developments (future acts), such as mining,
• acts as an arbitrator or umpire when the people involved cannot reach an agreement,
• assists people who want to negotiate other sorts of agreements, such as consent determinations of native title and Indigenous Land Use Agreements.

Indigenous Land Use Agreements (ILUAs) deal with practical issues of co-existence between native titleholders and pastoral stations. They do not require parties to litigate in court. 364 ILUAs have been made between 1993 and mid-2009. They cover about 14.3% of Australia's land mass and parts of the sea below the high water mark.

In South Australia, ILUAs are sometimes negotiated and finalised before native title is determined, making the claim process "the beginning of a new and productive relationship" between the parties and the land [23].

Before native title we knew that we owned the country, but nobody else recognised that. As part of the native title process we have developed a good relationship with the pastoralists so that in the future we can both look after the country together.—Janet Stewart, Nyangumarta Elder, Western Australia [24]

Native Title Representative Bodies (NTRBs) were formed which

• conduct native title cases (case studies),
• negotiate commercial agreements and
• try to identify traditional owning groups.

Usually this research is conducted before any native title applications are made.

With the Native Title Act Indigenous people won the right to negotiate, but not veto, developments on native title lands. When native title is granted it is looked after by Prescribed Bodies Corporate (PBC).

The Mabo decision and the Native Title Act left unresolved the issues of native title on pastoral leases and native title to the seas.

Wik High Court decision

1996

December 

The High Court's Wik decision concerned land which is, or has been, subject to pastoral leases because governments had been taking action on pastoral leases that did not comply with the Native Title Act.

The pastoral and mining industries, afraid that the court might rule against their interests, sparked a 'take your backyard away' advertising campaign which whipped the Australian people into a wholly unjustified hysteria [9]. It formed views which still persist and are a root of racism and prejudice.

Native Title Amendment Act

1998

September 

This amendment is also commonly referred to as the '10 Point Plan' and is a response to the 1996 Wik Decision created by the John Howard-led Liberal government.

The National Native Title Tribunal lost some powers to the Federal Court which is now in charge of managing the progress of native title claims from lodgement to finalisation.

Among other changes the Act introduced the registration test for native title applications. It also allows parties to negotiate agreements about action being take to settle a native title claim [33]. These agreements can be other than native title, for example negotiating directly with the state to settle native title claims, rather than go through the courts. This is an approach the Victorian government announced in June 2009 and called the Native Title Settlement Framework.

Alternative settlements enable those involved to make progress in ways to suit their local needs, and such settlements can be especially valuable where few native title rights will be recognised or where it will be difficult to prove that native title survives [33].

Native Title Act challenges

The Native Title Act was originally handed down so that Aboriginal people could negotiate and mediate to resolve recognition of Indigenous peoples' ongoing connection with their land.

But as more and more native title cases take many years, sometimes decades, to be resolved in courts rather than by negotiation, critics of the Act ask the Australian government to review and amend the Act.

Native title is at the bottom of the hierarchy of Australian property rights. —Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner [19]

Until we give back to the black man just a bit of land that was his and give it back without provisos, without strings to snatch it back, without anything but complete generosity of spirit in concession for the evil we have done him - until we do that, we shall remain what we have always been so far: a community of thieves. —Xavier Herbert author of Poor Fellow My Country (1970)

Proving ongoing connection

Under the Native Title Act Aboriginal people have to prove their 'ongoing' connection to the land they want to claim native title for. This ongoing connection is often difficult to prove, especially where there has been widespread urbanisation or agricultural development, both of which extinguish native title. Indigenous wars with the white invaders, forced removal from their traditional lands (Stolen Generations) and many massacres of Aboriginal people exacerbate claims further.

During World War II Aboriginal people lost their ongoing connection around Darwin because they were evacuated from the Japanese bombing. "Judges haven't been able to take in account any mitigating circumstances, and that break is enough to throw the case out," says Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner [31].

Evidence used to prove Aboriginal people's connection to their land can sometimes date back over one hundred years, as exemplified in the Yorta Yorta people's native title case which used the 1881 petition of the Maloga residents to the Victorian government [16].

However, cases exist where courts have denied recognising native title while at the same time acknowledging that the people before the court are the same people that owned that land at the time of colonisation [20].

As a consequence of extinguished native title the Indigenous Land Corporation was established to purchase land for groups who would not be able to prove native title.

During 2009 Tom Calma and Justice Robert French proposed to reverse the burden of proof in the native title claim system such that all claimants were presumed to have a "continuous existence and vitality since sovereignty" [31].

Numerous groups

For native title claims, parties can be numerous and diverse and their relationships complex. The Thalanyji people's claim in Western Australia involved more than 35 parties [15], the Gunditjmara people's case in Victoria involved hundreds of parties which were divided into 27 groups.

Native title groups can include local, state and Commonwealth governments as well as representatives from the mining, pastoral, pearling, fishing, bee-keeping, telecommunications and many other industries.

The fact that these parties usually don't know, or interact with, each other complicates the mediation process. Parties might not have been in dispute with each other, but the native title claim brings them into a potential conflict.

Lengthy process

Even if there is just one party making a claim and everyone acknowledges that they are the right people it is still difficult to settle claims and 'straightforward' claims can take a decade or more to reach an outcome [24].

Since both state and federal governments are involved in the native title process they wait for each other and exchange blame [9]. On average it takes six years to finalise a contested native title claim [20].

"One of the main reasons resolutions are delayed is the time it takes to prepare and assess the 'connection' material needed to show claimants' links to their traditional land or waters," says National Native Title Tribunal President Graeme Neate [22].

No minimum compensation

Many Aboriginal people live on land rich in resources which will bring wealth for Australia, but delivers little for its Indigenous peoples.

Mining companies are making millions of dollars profit each year operating on Aboriginal land. Between 1988 and 2008 it is estimated that the minerals industry has contributed some $500 billion into the Australian economy [17].

Companies are not required to pay a minimum return from their mining profits to Aboriginal people, and some mining companies pay as little as 0.25% of their gross revenue to traditional Aboriginal owners [10].

"Compensation provisions have never been used successfully," says Aboriginal and Torres Strait Islander Social Justice Commissioner Tom Calma [19]. The problem is that native title can easily be extinguished, it is impossible to 'revive' extinguished title, and there's a lack of either a right of veto or a statutory entitlement to any royalties from mining [28].

There has not been one successful compensation claim.—Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner [21]

Native title helps the white man

Les Malezer, Chairperson of the Foundation for Aboriginal and Islander Research Action (FAIRA) in Brisbane, Queensland, criticises the native title system for its failure to deliver for Indigenous people [25].

"If Koiki Mabo were alive today he would be an angry man," says Mr Malezer. "The rights he won in the High Court have been eroded away by government, courts and socio-economic pressure."

"The current system has not achieved good outcomes in land rights. The native title debates have been so constrained that we have been left holding a process which does not work."

"It is a process that has been proven to be racially discriminatory, removed from the principles of land rights which has totally replaced the land rights agenda of Aboriginal and Torres Strait Islander peoples."

The current legal arrangements in native title have the effect of obscuring the agents of dispossession and blaming the victims.—Brian Wyatt, chair of the National Native Title Council [9]

Benefits of native title for Aboriginal people

Although the process of applying for native title is often a long and difficult one (some last many years), there are also benefits for Aboriginal people when their native title is recognised [2]:

• Evidence of ownership. It means a lot to Aboriginal people to be able to prove they belong to the land and the land belongs to them.
• Access to traditional land for hunting and cultural purposes such as ceremonies.
• Renew relationships. Native title helps Indigenous groups to renew relationships with each other and strengthen their cultural ties with traditional land.
• Protection. Native title protects the land which will be passed on to future generations along with the traditional laws and customs which govern it.
• Business opportunities. Aboriginal people can establish businesses and create training and employment, giving them economic independence. They will also take a seat at any negotiation table alongside mining companies and pastoralists to have a say in developments on their land.
• Creation of national parks. Many land use agreements reached along with native title establish new national parks where Aboriginal people work as rangers and guides.

  To have a job representing your people and looking after your country—who could ask for anything more? —Nigel Stewart, Bundjalung nation, Byron Bay [2]

• Enhanced self-respect, identity and pride. The strong relationship Aboriginal people have with their land greatly influences their health and well-being.

Case study: Nitmiluk National Park

On 10 September 1989 the Nitmiluk National Park (Katherine Gorge) was handed back to the Jawoyn people of the Northern Territory.

Since then the Jawoyn have developed Nitmiluk Tours, a cultural-based tour operation at the gorge, and accommodation in the park, providing employment and an economic base for the 17 clan groups of the Jawoyn [30].

"Winning back Nitmiluk... provided us with the capacity to have greater control over our land and communities for future generations," says Wes Miller, CEO of the Jawoyn Association. "It gave us credibility and respect in the business world and with governments, and ensured the preservation of Jawoyn culture, land and wildlife in accordance with traditional Jawoyn law and conservation practices."

Sample native title cases

While courts still negotiate some native title claims other cases have been settled.

City of Perth

In September 2006 the High Court granted native title over more than 6,000 km² of Perth city and surrounds.

But in May 2008 the Federal Court upheld an appeal by the federal and West Australian governments, but it did not decide on native title. The ruling meant that the Nyoongar Aboriginal people had to start their case again [7].

Apart from one that I can think of, [the state of WA has] appealed every litigated determination of native title.—Alison Vivian, Jumbunna Indigenous House of Learning, UTS Sydney [8]

Devils Marbles (Karlu Karlu)

The Devils Marbles, a tourist attraction 100 kms south of Tennant Creek in Australia's Northern Territory, were handed back to traditional owners on 28 October 2008 [13].

The site was handed back 28 years after a native title claim had been lodged. The Ayleparrarntenhe Aboriginal Land Trust now holds the title to Karlu Karlu and immediately signed 99-year leases with the NT government to allow public access to the area.

Traditional Aboriginal owners consider Karlu Karlu as one of their most significant sacred sites [14].

Section 400, South Australia

'Section 400' labels a former nuclear testing site, about 300 kms north-west of Ceduna in South Australia.

The Maralinga Tjarutja people were moved from the area in the early 1950s so the British government could test atomic bombs there, heavily contaminating the land with radioactive substances and hazardous chemicals [32].

Hundreds of millions of dollars were spent cleaning up the land, and the first area was handed back in 1984, followed by two more in the 1990s.

The last area, Section 400, was "extensively rehabilitated" and handed back to its traditional owners on 18 December 2009, still containing a few 'no-go zones'.

The Bangarra Dance Theatre incorporated the history of the atomic site in one of their works, called 'X300' which was the operation's code name.

Native title resources

Out of respect for Aboriginal culture I use Indigenous sources as much as possible.
[1] 'Native Title', Encyclopedia of Aboriginal Australia, vol.2, p. 766 [2] 'Native Title and you - More than symbolic', Koori Mail 442, p.22 [3] en.wikipedia.org/wiki/National_Native_Title_Tribunal [4] www.nlc.org.au/html/land_native_act.html [5] 'Govt to be flexible on native title in territorial waters', Tradingroom.com.au, 17/7/2008 [6] 'Indigenous people still battle for land rights: activist', abc.com.au, 3/6/2007 [7] 'Noongar outcome shows native title gridlock: Calma', NIT 1/5/2008 p.4 [8] 'No benefit for WA govt over title appeals, academic says', NIT 1/5/2008 p.5 [9] 'The bitter taste of native title', NIT 10/7/2008 p.28 [10] NIT 26/6/2008 p.27 [11] 'Library named in honour of Mabo', Koori Mail 427 p.9 [12] 'A fair go is the key', Koori Mail 431 p.22 [13] 'Devils Marbles back in Aboriginal hands', NIT 30/10/2008 p.8 [14] 'Handback ends long battle', Koori Mail 438 p.4 [15] 'Bringing parties together', Koori Mail 437 p.22 [16] 'First Australians', Miegunyah Press, 2008, p.XXIX [17] 'Benefits on the agenda', Koori Mail 441 p.8 [18] 'Victory to NSWALC', Koori Mail 436 p.4 [19] 'Mixed results on native title', Koori Mail 442, p.10 [20] 'Now might be the right moment for native title', Koori Mail 442 p.22 [21] 'A few home truths, after Mabo', SMH 6/6/2009 [22] 'Tribunal backs change', Koori Mail 447 p.10 [23] 'Tribunal report shows how claims progress', Koori Mail 447 p.22 [24] 'Nyangumarta get their country back', Koori Mail 453 p.6 [25] '650 delegates pack out MCG', Koori Mail 453 p.12 [26] 'Mabo native title laws inspirie Bedouin claims', SMH 27/6/2009 [27] 'Struggle pays off', Koori Mail 454 p.28 [28] 'Private Property', Sarah Burnside, www.newmatilda.com (accessed 1/8/2009) [29] 'Coming to terms on ownership', Koori Mail 458 p.22 [30] 'Jawoyn to celebrate at Nitmiluk', Koori Mail 458 p.45 [31] 'Govt urged to amend native title legislation', Koori Mail 450 p.10 [32] 'SA land is returned', Koori Mail 467 p.15 [33] 'Alternative approaches', Koori Mail 468 p.22 [34] 'Always was, always will be!', Koori Mail 468 p.32