Aboriginal Native Title
What is 'Native Title'?
Native Title describes the rights which Aboriginal people have to land and waters according to their customary laws, but viewed from and recognised by, the Australian legal system.
You can think of Native Title as a bridge between customary Aboriginal laws which exist since many thousand years and white Australian laws which were defined and are observed by the English 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.
77 Number of native title cases which determined that native title exists [12].
854,000 Square kilometres covered by native title determinations (11% of Australia's land mass) [12].
338 Number of Indigenous Land Use Agreements (ILUA) registered [12].
504 Open applications for native title in 2008 [12].
30 Years it may take to determine native title for the open applications [12].
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 that these beliefs are 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
Answer:
Aboriginal people can only claim vacant government-owned land under the Native Title Act and they must prove a continuous relationship with this land.
All other land cannot be claimed because it is already someone's property - see below for conditions that extinguish Native Title.
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
Mer in the Torres Strait. The island is part of the Murray group and lies north-east of Cape York.
Photo: ailanpair, Flickr
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 they did not settle down, build houses and farmed the land, which were all characteristics of white life in England.
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 peoples 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 come to a decision. 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.
Native Title continues to exist on
- Aboriginal reserves
- vacant Crown land
- stock routes
- 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.
Three of the five applicants died before the High Court passed down its ruling, among them 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 where in a conversation with professors he found out 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 said 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.
The National Native Title 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, or not.
- 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 Indigenous Land Use Agreements (ILUA).
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.
Criticism of the Native Title Act
The Native Title Act was originally handed down so that Aboriginal people could negotiate and meditate 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.
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 in the light of Indigenous wars with the white invaders, forced removal from their traditional lands (Stolen Generations) and many massacres on Aboriginal people.
But 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.
Since both state and federal governments are involved in the native title process they wait for each other and exchange blame [9].
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]
Mining companies are making millions of dollars profit each year by operating on Aboriginal land. They 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].
Wik High Court decision
- 1996
- December
The High Court's Wik decision concerned land which is, or has been, subject to pastoral leases.
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 view which still persist today and are a basis of racism and prejudice.
Sample native title cases
Some native title claims are still negotiated in the courts while other cases could be 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, 100km south of Tennant Creek in Australia's Northern Territory, were handed back to traditional owners in October 2008 [13].
The site was handed back 28 years after a native title claim had been lodged. The Ayleparrarntenhe Aboriginal Land Trust will hold the title to Karlu Karlu and immediately signed 99-year leases with the NT government to allow public access to the area.
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.
- 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.
- Creation of national parks Oftentimes a land use agreement reached along with Native Title establishes
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 is closely related to their health and well-being.
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