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.

Some Aboriginal people don't like native title

Michael Anderson, an Aboriginal leader of the Euahlayi tribe in New South Wales, describes the Mabo decision as "legal trickery" because—according to the judgement—hunting, gathering, walking on land and ceremonies on country do not constitute a claim to legal title and ownership, whereas erecting fences, buildings and clearing of land does as an act of adverse possession [25].

"Adverse possession is the means by which the colonisers assert title to alleged 'wild country'," Mr Anderson said. He said this view was underpinned by a 'Doctrine of Discovery' stemming from papal proclamations of the 15th century where Aboriginal people were defined as animals, leaving the world subject to conquer and divide by Christian monarchs.

Aboriginal activist Robbie Thorpe says Aboriginal people were being forced to accept native title [28]. "We never wanted that," he says. "We weren't marching down the road demanding native title. We were saying 'land rights'."

Fact: Did you know that the 1992 Mabo decision inspired art and film—most famously the comedy The Castle. It also stirred writers and historians and mustered widespread political activity [36].

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 works with Aboriginal representative bodies, land councils, community organisations, mining companies, local governments, pastoralists and the fishing industry—basically every group concerned with land. It also [3, 37]

• registers native title claims, tests registrations and maintains the native title register,
• 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, and
• conducts reviews and inquiries into native title matters.

Indigenous Land Use Agreements (ILUAs)

Indigenous Land Use Agreements deal with practical issues of co-existence between native titleholders and pastoral stations. Introduced in 1998, they reflect the parties' aspirations for a positive future as co-users of areas of land or waters.

ILUAs do not require parties to litigate in court and can be made before or after determinations of native title. Just six ILUAs were registered by April 2000, 364 ILUAs had been made by mid-2009, and 421 by April 2010. They cover over 14% 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].

Joint management of land covered by an ILUA is about traditional owners and other stakeholders, such as pastoral station owners or the Parks and Wildlife Service, working together to achieve their shared goals and aspirations, exchanging their knowledge and expertise, solving problems and sharing decisions. In doing so they create jobs and training for Aboriginal people, empowering them to more financial independence while they live and work on their country.

[Joint management is] about caring for our land and preserving the sacred sites and stories for generations to come. —Wali Wunungmurra, Chairman, Northern Land Council [17]

Indigenous Protected Areas (IPAs)

An Indigenous Protected Area is an area of Aboriginal-owned land or sea, where traditional owners have entered into an agreement with the Australian government to promote cultural resource conservation and biodiversity.

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)

Native Title Representative Bodies

• 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.

Becoming a party of a native title claim

The Native Title Act prescribes that companies intending to carry out explorations or mining leases notify the public so that any person can become a native title party. Aboriginal newspapers publish many such notices.

By becoming a "respondent party", people have the opportunity to participate in mediation meetings with the applicants and other parties. These meetings aim to resolve issues and reach agreements that respect everyone's rights and interests [15].

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 taken 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 or Traditional Owners Settlement Bill (see below).

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].

Traditional Owners Settlement Bill

2010

August 

The Victorian government introduced the Traditional Owners Settlement Bill in 2010 to offer a "fairer and more flexible way" to resolve native title claims [38]. Under this framework traditional owners can enter into out-of-court settlements while withdrawing their native title claims and agreeing not to make future claims.

The government welcomed the bill to bring "certainty to land managers, industry and developers" and help resolve claims through negotiation rather than lengthy and costly court cases.

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.
• Documentation of history. Each native title claim produces many documents related to the history of the claimed area and the people who make it [31]. Every native title claim also documents an important part of Australia's history.

Hunting rights for Aboriginal people are cultural rights, not commercial rights. This means that they don't hunt to make money, rather they are driven by the sustainability of those animals which adds to the sustainability of their culture. Many non-Indigenous people only worry about iconic species being hunted and not the actual cultural practice and the purpose that is attached to that [10].

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 17 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

It's Still In My Heart, This Is My Country tells the story of survival of the Nyoongar Aboriginal people and the struggle to achieve recognition of native title rights over Perth and the south-west of Western Australia. The book won the 2010 Margaret Medcalf award for excellence in research and provides a detailed history of the Nyoongar people.

Mabo - The Native Title Revolution is a website which looks into the details of the Mabo case: www.mabonativetitle.com.au

You'll find many documents discussing and explaining native title at the National Native Title Tribunal's website www.nntt.gov.au.

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] 'Cairns talks centre on sea country', Koori Mail 478 p.31 [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] 'Native Title Tribunal moves to clarify claim on Wiradjuri land', Koori Mail 479 p.39 [16] 'See it through', Koori Mail 476 p.22 [17] 'Historic handback', Koori Mail 476 p.6 [18] 'Victory to NSWALC', Koori Mail 436 p.4 [19] www.nntt.gov.au, visited 26/6/2010 [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] 'Delegates told to take control', Koori Mail 480 p.16 [26] 'Mabo native title laws inspirie Bedouin claims', SMH 27/6/2009 [27] 'Struggle pays off', Koori Mail 454 p.28 [28] 'Treaty is a must - activist', Koori Mail 481 p.16 [29] 'Coming to terms on ownership', Koori Mail 458 p.22 [30] 'Jawoyn to celebrate at Nitmiluk', Koori Mail 458 p.45 [31] 'Tribunal work is helping to make history', Koori Mail 482 p.22 [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 [35] 'Upset over claims', Koori Mail 471 p.4 [36] 'Native Title left behind', The Australian 14/12/2009 [37] 'Tribunal surveys views of clients', Koori Mail 472 p.22 [38] 'Backlog tackled', Koori Mail 482 p.38