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land rights and native title

When the British occupied Australia they called the country ‘terra nullius’ - belonging to no-one - and for 200 years the law recognised no indigenous rights to land.

mabo and native title

Richie Ah Mat, Cape York land council, explaining native title to visitors - Sea of Hands, London

acknowledgement of the traditional custodians of the land

The position changed totally in 1992 when after a 10 year legal battle the Australian High Court agreed that Eddie Mabo and the islanders of Mer had a native title right to traditional lands.

‘Native title’ is a unique form of land title. It describes the recognition in Australian law that Aboriginal and Torres Strait Islander peoples have rights to their country where they follow traditional laws and customs and have a continuing connection to land or waters and where title has not been ‘extinguished’ by legislation or act of Government.

The 1993 Native Title Act which followed was based on extensive negotiations between indigenous peoples, government, pastoralists and industry. The Act:

• recognised common law native title rights of indigenous peoples to their country;
• established national machinery to process claims;
• recognised that claimants had a ‘right to negotiate’ (not a veto) in respect of mining and other developments on claimed lands

Another Act established a Land Fund for indigenous people who had been forced off their lands and could not qualify for native title.

Recognising native title was a giant legal step but making a claim was complicated and took years. It was often hard for claimants to prove traditional lifestyle and connection to land, because many Aboriginal peoples had been forced to give up traditional practices.

Aboriginal society keeps records through song, dance and stories not in writing. Many of the ceremonies were secret, restricted under severe penalties to certain people and groups frequently had overlapping claims for different rights in the same areas.

the wik case and 1998 native title act amendments

Under the 1993 Act, native title rights could only be claimed on vacant or Crown lands, not on freehold land (so no-one was going to lose their back garden). But 42% of Australia is Crown land on long term ‘pastoral leases’ (for grazing cattle or sheep), and it was unclear from the Mabo decision whether native title rights could be claimed over these pastoral rangelands.

The 1996 High Court Wik judgement said that native title rights could only be extinguished by deliberate act. They could co-exist with pastoral leases, but where there was inconsistency, the pastoral lease would prevail.

The Government’s response was to take deliberate acts which would largely extinguish native title. Amendments to the 1993 Native Title Act were forced through Parliament in 1998, against the express wishes of Aboriginal and environmental groups. The amended Act prevented claims over large areas of land by redefining the nature of pastoral leases, increased the powers of the mining and pastoral industries and State Governments at the expense of native title claimants, imposed new and unrealistic requirements on native title claimants, largely replaced the right to negotiate about future developments with a right to talk.

land rights and native title news index

external links

• Annual Social Justice and Native Title Reports 2007 - 1994
• AIATSIS
  Aboriginal and Torres Strait Islander resourse links
• Agreements, Treaties and Negotiated Settlements Project
  The Agreements, Treaties and Negotiated Settlements (ATNS) project is an ARC Linkage project examining treaty and agreement-making with Indigenous Australians and the nature of the cultural, social and legal rights encompassed by past, present and potential agreements and treaties. The project also examines the process of implementation and the wider factors that promote long term sustainability of agreement outcomes.
• Papers of Edward Koiki Mabo
• Pilbara Pastoral Workers' Strike of 1946
• 'The Spirit of Mabo'
  The land needs the laughter of children'. Native title and the achievements of Aboriginal people.
• The 1966 Gurindji Land Rights Strike.
• Australian National University – Faculty of Law
• Native Title Report 2006 HREOC
• Native Title case history by Rod Hagen
  The Rights of Indigenous Australians; Mabo; Wik; The Native Title Act; The Ten Point Plan and Harradine Amendments
• National Native Title Tribunal
• Native Title Representative Bodies - the official website for Native Title Representative Bodies.