Native title is a concept in the law of Australia that recognises the continued ownership of land by local indigenous Australians. The law of Australia consists of the Australian Common law (which is based on the English common law) federal laws enacted by the Parliament Indigenous Australians are descendants of the first known human inhabitants of the Australian continent and its nearby islands.
Native title can co-exist with non-indigenous proprietary rights and in some cases different indigenous groups can exercise their native title over the same land. In this way, it represents a local example of the fragmentation of proprietary interests. More particularly, it is also an example of two distinct systems of law operating within the same geographic, national and jurisdictional space. It is a recognition by the common law of customary Aboriginal law. Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive However, to the extent of any inconsistency between Australian law and customary Aboriginal law, non-indigenous rights will generally prevail.
The National Native Title Tribunal (NNTT) is the body that investigates and mediates claims made by Aboriginal and Torres Strait Islander peoples. The National Native Title Tribunal is an Australian Commonwealth Government agency set up under the Native Title Act 1993 (Cwlth Native title determinations are made by the Federal Court of Australia. The Federal Court of Australia is the Australian court in which most civil disputes and some summary criminal matters governed by federal law are decided Appeals against these determinations can be made to a full sitting of the Federal Court and then to the High Court of Australia. The High Court of Australia is the final court of appeal in Australia the highest court in the Australian court hierarchy. The National Native Title Register (NNTR) is a register of approved determinations and is maintained by the NNTT. In Law, land registration is a system by which the Ownership of estates in land, is recorded and registered usually by Government, in order
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The clash of two legal systems
Native title concerns the interaction of two systems of law:
- The traditional laws and customs that regulated the lives of Aboriginal and Torres Strait Islanders prior to Australia's colonisation by the British ("customary Aboriginal law"). Although colonisation wrought social changes upon the Aborigines, customary Aboriginal law continues to regulate the lives of many indigenous Australians.
- The now dominant, English-derived legal system, which was brought to Australia with colonisation, which includes the common law and enacted laws ("Australian law"). For a topic outline on this subject see List of basic Australia topics. Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive
Only Australian laws are enforced directly in Australian courts. Native title is not a concept that forms part of customary Aboriginal law - rather, it is the term adopted to describe the rights to land and waters possessed by indigenous Australians under their customary laws that are recognised by the Australian legal system. . .
Chronology of events leading to recognition of native title
1946 Aboriginal Stockmen's Strike
On 1 May 1946, an estimated 600 Aboriginal stockmen throughout the north of Western Australia refused to work until they had been guaranteed a minimum wage of thirty shillings a week. The 1946 Pilbara strike was a landmark strike by Indigenous Australian pastoral workers in the Pilbara region of Western Australia for Human Events 305 - Diocletian and Maximian retire from the office of Roman Emperor. Year 1946 ( MCMXLVI) was a Common year starting on Tuesday (link will display full 1946 calendar of the Gregorian calendar. In the Australian lexicon stockman is the traditional name given to a person who looks after the Livestock on a large property known as a station and owned Western Australia is a state occupying the entire western third of the Australian continent. The shilling is a unit of Currency used in current and former Commonwealth countries and was continued to be used in countries that left the commonwealth Some had previously been receiving food and clothing but no pay; others had been paid up to twelve shillings a week.
Though the strike was on the face of it one for better wages, it had a strong human rights and natural justice aspect, with the demand that Aboriginal workers be paid in cash and not in goods.
It was organised by Dooley Bin Bin with his friend Don McLeod acting as consultant. The organisation was a mammoth task, requiring communication between stockmen throughout northern Western Australia. The strike did not end until August 1949.
Pitjantjatjara Lands Act 1981
The Pitjantjatjara Lands Act 1981, of South Australia enabled land to be transferred to the Pitjantjatjara people, who had maintained a continuous connection with their land. Year 1981 ( MCMLXXXI) was a Common year starting on Thursday (link displays the 1981 South Australia is a state of Australia in the southern central part of the country Pitjantjatjara ˈpɪcaɲcacaɾa is the name of both an Aboriginal people of the Central Australian desert and their language (for which see Pitjantjatjara However, the act provided no basis for claims by other groups.
1963 – Yolngu Bark Petition
The Yolngu of northeast Arnhem Land had retained a very strong connection with their land, culture and Law (Madayin), due to the remoteness of Arnhem Land to white Australia. The Yirrkala bark petitions 1963 are historic Australian documents that were the first traditional documents prepared by Indigenous Australians that were recognised The Arnhem Land Region is one of the five regions of the Northern Territory of Australia.
In 1963, the Menzies government decided to excise a part of their land for a bauxite mine, Yolngu at Yirrkala sent a petition on bark to the Australian House of Representatives protesting the excision. Year 1963 ( MCMLXIII) was a Common year starting on Tuesday (link will display full calendar of the Gregorian calendar. Sir Robert Gordon Menzies, KT, AK, CH, QC (20 December 1894 - 15 May 1978 Australian politician was the twelfth person to serve Bauxite is the most important Aluminium Ore. It consists largely of the minerals Gibbsite Al(OH3 Boehmite γ-AlO(OH and For the Genus of Snake eels see Yirrkala (fish. Yirrkala is a well-known indigenous community in Arnhem Land The Yirrkala bark petitions 1963 are historic Australian documents that were the first traditional documents prepared by Indigenous Australians that were recognised The House of Representatives is one of the two houses (chambers of the Parliament of Australia; it is the Lower house, the Upper house being the Senate
The bark petition attracted national and international attention and now hangs in Parliament House, Canberra as a testament to the Yolngu role in the birth of the land rights movement. Parliament House is the meeting place of the Parliament of Australia.
1966 – Wave Hill Walk-Off
Three years later, in 1966, 200 Gurindji cattle workers and their families, led by Vincent Lingiari, staged a strike and walk off at Wave Hill Cattle Station, demanding equal wages and conditions to white stockmen. The Gurindji Strike (or Wave Hill Walk-Off refers to the walk-off and strike by 200 Gurindji Stockmen, house Servants and their families in August Year 1966 ( MCMLXVI) was a Common year starting on Saturday (link will display full calendar of the 1966 Gregorian calendar. Gurindji are a group of Indigenous Australians living in northern Australia 460 km southwest of Katherine in the Northern Territory 's Victoria River Vincent Lingiari, AM (1908&ndash 21 January 1988) was an Aboriginal rights activist who was created a Member of the Order of Australia The Gurindji Strike (or Wave Hill Walk-Off refers to the walk-off and strike by 200 Gurindji Stockmen, house Servants and their families in August Kalkaringi (formerly Wave Hill, also spelt Kalkirindji) is a small township in Northern Territory of Australia. In the Australian lexicon stockman is the traditional name given to a person who looks after the Livestock on a large property known as a station and owned
At that time they were paid small amounts of money, or paid in kind. The nine-year strike developed into a successful claim for return of traditional Gurindji lands.
1971 – Gove Land Rights case
Meanwhile, the Yolngu realised their bark petition had not been taken seriously by the politicians in Canberra, and instead took their grievances to the courts in 1971, in the case of Milirrpum v Nabalco Pty Ltd. In December 1968 the Yolngu people living in Yirrkala, who were the traditional owners of the Gove Peninsula in Arnhem Land, obtained writs in the Year 1971 ( MCMLXXI) was a Common year starting on Friday (link will display full calendar of the 1971 Gregorian calendar. In December 1968 the Yolngu people living in Yirrkala, who were the traditional owners of the Gove Peninsula in Arnhem Land, obtained writs in the
Yolngu lost the case because Australian courts were still bound to follow the terra nullius principle, which did not allow for the recognition of any “prior rights” to land to Indigenous people at the time of colonisation. Terra nullius ( English pronunciation ˈtɛrə nəˈlaɪəs Latin pronunciation ˈtɛrːa nʊlːˈiʊs is a Latin expression deriving from
However, the Judge did acknowledge the claimants' ritual and economic use of the land and that they had an established system of law (Madayin). In this way, this was the first significant legal case for Indigenous Land Rights in Australia.
1973-4 – Woodward Inquiry
These cases led to the establishment of the Woodward Aboriginal Land Rights Commission, a Royal Commission from 1973-4 in the Northern Territory. The term Royal Commission may also be used in the United Kingdom to describe the group of Lords Commissioners who may act in the stead of the Year 1973 ( MCMLXXIII) was a Common year starting on Monday (link will display full calendar of the 1973 Gregorian calendar. Year 1974 ( MCMLXXIV) was a Common year starting on Tuesday (link will display full calendar of the 1974 Gregorian calendar. The Northern Territory is a federal territory of Australia, occupying much of the center of the mainland continent as well as the central northern regions
1975 – Gurindji handback
In 1975, Gough Whitlam handed back land to the Gurindji people. The Gurindji Strike (or Wave Hill Walk-Off refers to the walk-off and strike by 200 Gurindji Stockmen, house Servants and their families in August Year 1975 ( MCMLXXV) was a Common year starting on Wednesday (link will display full calendar of the Gregorian calendar. Edward Gough Whitlam, AC, QC (born 11 July 1916 known as Gough Whitlam (ˈɡɒf goff is an Australian former politician and 21st Gurindji are a group of Indigenous Australians living in northern Australia 460 km southwest of Katherine in the Northern Territory 's Victoria River
The famous photograph, by Mervyn Bishop of Whitlam pouring sand into Vincent Lingiari's hand, has been etched onto the Australian psyche. Mervyn Bishop (born 1945 is one of Australia 's first professional Aboriginal photographers and one of the country's pre-eminent news photographers Vincent Lingiari, AM (1908&ndash 21 January 1988) was an Aboriginal rights activist who was created a Member of the Order of Australia
Aboriginal Land Rights Act 1976
As a result of the findings of the Woodward Aboriginal Land Rights Commission, the Fraser Government enacted the Aboriginal Land Rights Act in 1976, after its drafting by the Whitlam Labor Government in 1975. In Australian history, the Aboriginal Land Rights (Northern Territory Act established the basis upon which Aboriginal people in the Northern Territory John Malcolm Fraser, AC, CH (born 21 May 1930 is an Australian Liberal politician who was the 22nd Prime Minister of Australia. In Australian history, the Aboriginal Land Rights (Northern Territory Act established the basis upon which Aboriginal people in the Northern Territory Year 1976 ( MCMLXXVI) was a Leap year starting on Thursday (link will display full calendar of the Gregorian calendar. Edward Gough Whitlam, AC, QC (born 11 July 1916 known as Gough Whitlam (ˈɡɒf goff is an Australian former politician and 21st Year 1975 ( MCMLXXV) was a Common year starting on Wednesday (link will display full calendar of the Gregorian calendar.
The four Land Councils were established under this law. It established the basis upon which Aboriginal people in the Northern Territory could, for the first time, claim rights to land based on traditional occupation.
This Act was the first Australian law which allowed a claim of title if claimants could provide evidence of their traditional association with land.
1985 Gerhardy v Brown
Stated that the original inhabitants should be recognised as having a legal, as well as a just, claim to retain occupancy of their traditional land.
1992 – Mabo
Only in 1992 was the assumption that Australia was terra nullius rejected by the High Court in the Mabo decision, which granted Murray Island in the Torres Strait to its Torres Strait Islander residents. Mabo v Queensland (No 1 was a significant Court case decided in the High Court of Australia on December 8 1988. Mabo v Queensland (No 2 (commonly known as Mabo) was a landmark Australian court case which was decided by the High Court Year 1992 ( MCMXCII) was a Leap year starting on Wednesday (link will display full 1992 Gregorian calendar) The High Court of Australia is the final court of appeal in Australia the highest court in the Australian court hierarchy. Murray Island (known by the local Torres Strait Islanders as Mer) is a small island of volcanic origin populated by the Melanesian The Torres Strait is a body of water which lies between Australia and the Melanesian island of New Guinea.
As Justice Brennan stated in Mabo (No. 2), "native title has its origin and is given its content by the traditional laws acknowledged by and the customs observed by the indigenous inhabitants of a territory".
Developments since the recognition of native title
Native Title Act 1993
The recognition of the legal concept of Native Title in Mabo in 1992 led its recognition by the legislative system a year later when the Keating government enacted the Native Title Act, [1993]. The Native Title Act of 1993 provides for determinations of Native title in Australia Paul John Keating (born 18 January 1944 was the 24th Prime Minister of Australia, from 1991 to 1996 It attempted to clarify the legal position of landholders and the processes that must be followed for Native Title to be claimed, protected and recognised through the courts.
The concept of claiming land rights is independent of native title. Aboriginal land claims are claims of Native or Aboriginal peoples (also referred to as Indigenous peoples about their right of ownership of the land they inhabited
Native title is not the same as land rights Aboriginal Land Rights Acts. In Australian history, the Aboriginal Land Rights Acts were Statutes that established Land rights for Australian aborigines who made traditional Land rights are new legal rights that are created and granted under Australian law to Indigenous Australians. Indigenous Australians are descendants of the first known human inhabitants of the Australian continent and its nearby islands.
In a land rights claim Indigenous Australians can seek a grant of title to land from the Commonwealth, state or territory governments. That grant may recognise traditional interest in the land, and protect those interests by giving Indigenous people legal ownership of that land. The term Indigenous Peoples or autochthonous peoples can be used to describe any Ethnic group who inhabit a geographic region with which they have the earliest historical
Pastoral leases
The Mabo decision created uncertainty, particularly for pastoralists who held pastoral leases. Pastoral leases:
- are leases given by the Australian state governments;
- are the subject of statutory regulation;
- contain varying conditions;
- give pastoralists rights to occupy Crown land for agricultural purposes in return for an annual fee;
- cover approximately 44% of Australia's mainland, consisting predominantly of arid and semi-arid regions and tropical savannas;
- are predominantly used for grazing livestock and agriculture. [1]
1996 – Wik Decision
After the Mabo decision, there was concern that native title claims over pastoral leases would extinguish the pastoral leases. Wik Peoples v The State of Queensland (commonly known as the Wik decision) is a decision of the High Court of Australia delivered on 23 December 1996 The Wik Decision in 1996 clarified the uncertainty. Wik Peoples v The State of Queensland (commonly known as the Wik decision) is a decision of the High Court of Australia delivered on 23 December 1996 Year 1996 ( MCMXCVI) was a Leap year starting on Monday (link will display full 1996 Gregorian calendar) In that case, the High Court determined that pastoral leases that:
- gave the leaseholder exclusive possession (that is, the right to use the land and to exclude others from the land) extinguished native title; and
- did not give exclusive possession did not extinguish native title. The High Court of Australia is the final court of appeal in Australia the highest court in the Australian court hierarchy.
The decision found that native title could coexist with other land interests on pastoral leases, which cover some 40% of the Australian land mass.
That decision led to amendments to the Native Title Act (by the Native Title Amendment Act) in 1998 which streamlined the claims system and provided security of tenure to non-indigenous holders of pastoral leases and other land title, where that land might potentially be claimed under the Native Title Act. The Native Title Amendment Act 1998 (Cth also commonly referred to as the "10 Point Plan" is an Australian law created by the John Howard led Liberal Year 1998 ( MCMXCVIII) was a Common year starting on Thursday (link will display full 1998 Gregorian calendar) Pastoral Leases Exist in both Australian commonwealth law and state jurisdctions
2006 – Noongar Decision
On 19th Sept 2006 the Federal Court brought down a judgment in favour of Noongar Native Title over the Perth metropolitan area, it is known as Bennell v State of Western Australia [2006] FCA 1243. Perth is the capital and largest city of the Australian state of Western Australia.
Justice Wilcox found that Native Title continues to exist within an area in and around Perth. This is the first judgment which recognised Native Title over a capital city and its surrounds. The claim area itself is part of a much larger area included in the "Single Noongar Claim", which covers the south-western corner of Western Australia. It was determined separately from the wider Single Noongar Claim by the Federal Court at the request of the Commonwealth and State Governments, in order to obtain certainty about whether Native Title exists in the Perth metropolitan area. An appeal was subsequently lodged and is was heard in April 2007 (decision currently pending). The remainder of the larger Single Noongar Claim remains outstanding and will hinge on the outcome of the appeal process.
Wilcox's judgment is noteworthy for several reasons. It highlights Perth's wealth of post-European settlement writings which provide an insight into Aboriginal life, including laws and customs, around the time of settlement in 1829 and also into the beginning of the last century. These documents enabled Wilcox to find that laws and customs governing land throughout the whole Single Noongar Claim (taking in Perth, and many other towns in the greater South West) were those of a single community. The claimants shared a language and had extensive interaction with others in the claim area.
Importantly, Justice Wilcox found the Noongar community had continued to exist despite the disruption resulting from mixed marriage and people being forced off their land and dispersed to other areas as a result of white settlement and later Government policies. If it survives the appeal, this is a very significant principle for other native title claims in Australia.
In April 2008 the Full Bench of the Federal Court upheld parts of the appeal by the Western Australian and Commonwealth governments against Justice Wilcox's judgment.
2007 Amendments to the Native Title Act
On 7 September 2005 Attorney-General, the Hon. Philip Ruddock MP, announced a package of coordinated measures to improve the performance of the native title system. Later in December 2006, the Attorney General introduced technical amendments to the NTA (1993) in the Native Title Amendment Bill 2006. These are aimed at making the native title process 'more efficient' and to speed up the determination of whether native title exists on the 580 claims that have been registered but not yet determined.
See also
- Aboriginal land claims
- Aboriginal title
- Central Land Council and Northern Land Council of the Northern Territory
- Gove land rights case
- Gurindji strike
- Mabo
- Wik Peoples v Queensland
- Yirrkala bark petitions
- Indian reservation, land which is managed by a Native American tribe under the United States Department of the Interior's Bureau of Indian Affairs. Aboriginal land claims are claims of Native or Aboriginal peoples (also referred to as Indigenous peoples about their right of ownership of the land they inhabited Aboriginal title is a Common law property interest in land It has been recognised in Canada, Australia, New Zealand, the United States The Central Land Council is an Indigenous Land Council that represents the indigenous people of the southern half of the Northern Territory of Australia, predominantly The Northern Land Council (NLC is in the Top End of the Northern Territory of Australia. The Northern Territory is a federal territory of Australia, occupying much of the center of the mainland continent as well as the central northern regions In December 1968 the Yolngu people living in Yirrkala, who were the traditional owners of the Gove Peninsula in Arnhem Land, obtained writs in the The Gurindji Strike (or Wave Hill Walk-Off refers to the walk-off and strike by 200 Gurindji Stockmen, house Servants and their families in August Wik Peoples v The State of Queensland (commonly known as the Wik decision) is a decision of the High Court of Australia delivered on 23 December 1996 The Yirrkala bark petitions 1963 are historic Australian documents that were the first traditional documents prepared by Indigenous Australians that were recognised An Indian reservation is an area of land managed by a Native American Tribe under the United States Department of the Interior's Bureau Native Americans in the United States are the indigenous peoples from the regions of North America now encompassed by the continental United States The United States Department of the Interior ( DOI) is a Cabinet department of the United States government that manages and conserves most federally History Although the bureau which was called the Office of Indian Affairs was formed in 1824 similar agencies had existed in the U
- Oren Lyons
- Estates in land
- Title (property)
- Category:Australian indigenous rights activists
References
- ^ Productivity Commission, Pastoral Leases and Non-Pastoral Land Use Research Paper, 2002. Oren Lyons (b1930 Oren R Lyons is a traditional Faithkeeper of the turtle Clan and a proud and accomplished Native American who works tirelessly towards the issues concerning An estate in land is an interest in Real property that is or may become possessory Title is a legal term for a bundle of rights in a piece of property in which a party may own either a legal interest or an equitable interest The rights
External links
- Native Title Amendment Bill 2006
- Native Title Act 1993 at ComLaw
- Native Title Resource Guide at Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS)
- National Native Title Tribunal
- Federal Court of Australia Native Title Infobase, The Native Title Infobase includes selected material commencing from 1839 to the present day and covers all aspects of native title. ComLaw is an Australian government Web site run by the Attorney-General's Department providing online copies of Commonwealth legislation and related documents It gives reference to Australian material including journal articles, book chapters, books, conference papers, reports and press clippings. It also includes relevant material from other jurisdictions such as New Zealand, United States, Canada, Africa and Asia.
- Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation, the Native Title Representative Body incorporating the Yamatji Land and Sea Council and the Pilbara Native Title Service
- Information about native title determinations is available
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