Native title

It wasn’t until 1992 that the Australian legal system recognised that Indigenous people had an inherent right to their land. Mabo v Queensland (No 2) [1992] HCA 23 – ‘the Mabo case’ – was brought by Eddie Mabo, David Passi and James Rice, all Meriam people from Mer Island in the Torres Strait.

The decision of the High Court did two things:

  • it overturned the doctrine of terra nullius as a legal fiction
  • found that where Aboriginal people have retained their connection to their land – and there has been no specific action by the government to extinguish it – that interest in land remains.

The Mabo case and its promise of native title in 1992 inspired great hope in many Aboriginal people and their communities across the country. In Mabo, native title was to be defined by the laws and customs of Aboriginal people. However, this definition that gave the power to Aboriginal people to define native title was transformed under legislation (the Native Title Act 1993 (Cth)) and subsequent case law. The Native Title Act established the National Native Title Tribunal to manage native title claims. The Act also defined ‘native title’ in section 223(1):

The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

Over more than a decade of native title cases, the High Court narrowed the definition of native title; and it is judges, not Aboriginal people, who have the largest role in recognising the existence and defining the content of native title.

Perhaps the most famous example was the decision in the Yorta Yorta case (Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58). The court found that the culture of the claimants had been eroded by the history of colonisation and taken with it the native title interests of the Yorta Yorta nation. Aboriginal people across Australia came to realise the extent to which Australian courts and parliaments can recognise an Aboriginal right or interest but seek to override it through narrow interpretations of facts and with a Eurocentric gaze on Aboriginal history, experience, culture and life. Of note, after the failed litigation, the Yorta Yorta in Victoria reached a negotiated settlement with the state government that provided for a co-management arrangement on lands of the Yorta Yorta nation. This outcome illustrates how a negotiated settlement can be an effective political solution and perhaps a better approach than litigation.

Other significant native title cases have included:

  • In Wik Peoples v Queensland [1996] HCA 40, the Wik and Thayorre peoples brought a claim for land and seas in the Cape York Peninsula of Queensland. Their claim included large pastoral lease holdings. The High Court examined the history of the leases and found that they were particular to the Australian context and were not intended to exclude Indigenous peoples or their interests so native title can co-exist with the interests of pastoralists in certain circumstances.
  • In Fejo and Another on behalf of the Larrakia People v Northern Territory [1998] HCA 58, the Larrakia people brought an action with respect to leases which had been granted over land which they claimed they retained native title rights over, in and around Darwin, Palmerston and Litchfield in the Northern Territory. The land had been granted in 1882 as a freehold but it had been resumed in 1927 by the Commonwealth to use as a quarantine station and then as a leprosarium. These public purposes were revoked in 1980 making the land vacant Crown land again. The High Court in Fejo confirmed that freehold grants permanently extinguished all native title interests.
  • In Yanner v Eaton [1999] HCA 53, the High Court held that the Queensland Fauna Conservation Act 1974 (Qld), which made taking crocodiles and other fauna without a license an offence, did not extinguish native title. Yanner, who had been convicted under the Act for taking crocodiles without a license, was found to be exercising his native title rights.
  • In Commonwealth v Yarmirr [2001] HCA 56, the High Court considered recognition of the native title rights of the Mandilarrildugij, Mangalara, Muran, Gadura, Minaga, Ngayndjagar and Mayorram peoples’ sea country in the Croker Island region of the Northern Territory. The claimants sought recognition of their rights to exclusive possession, ownership, occupation, use and enjoyment of the sea and seabed and its resources. The High Court found that native title could, in some circumstances, exist in the sea and sea bed.

In 1995, the Indigenous Land Corporation was established as the second part of the Keating Government’s response to the Mabo decision. The corporation was set up to administer a fund to buy land on behalf of Indigenous people in recognition of the fact that many Aboriginal people would, due to the impact and processes of colonisation, be unable to prove that they maintained a native title interest over their traditional land in the way the law described and defined it.

Native title has long been subjected to the political motivations of governments that have valued certainty for non-Aboriginal property interests over the interests of Aboriginal people. The federal parliament was happy to extinguish the Aboriginal interests when there was a conflict between the two and it was comfortable in repealing the application of the Racial Discrimination Act 1975 (Cth) from applying to what was clearly a racist valuing of white land interests over black. (See the Native Title Amendment Act 1998 (Cth).)

Significant changes to the Native Title Act 1993 occurred with the Native Title Amendment Act 1998 (Cth). This change was driven by the Howard government’s response to the Wik case and the effect of the changes were to make the registration of claims more difficult and to increase the interests of miners and pastoralists. The amendments included:

  • Validating of grants made by state governments after the enactment of the Native Title Act up until December 1996.
  • confirmed permanent extinguishment in relation to leasehold, freehold and other tenures
  • expanded the rights of pastoralists
  • making the registration of native title claims more difficult for claimants, with no corresponding onerous provisions for non-claimant applications, i.e. applications that native title does not exist.
  • reduced right of native title holders to negotiate with respect to mining interests and limited native title claimants rights to information and comment with respect to other dealings related to their claims.
  • suspending the Racial Discrimination Act 1975 for the purpose of effecting these amendments.

These amendments received criticism from the United Nations Committee on the Elimination of All forms of Racial Discrimination that found they breached the International Convention on the Elimination of all Forms of Racial Discrimination.

In fact, a large feature of the native title regime can be characterised as focused on ensuring the certainty of non-Aboriginal interests. And while one of the positives of the system has been the increased role of negotiated agreements between traditional owners and other interests, it is also true to say that the system has been loaded against Aboriginal people because of the weakness of their title and the fact that native title interests are primarily about providing protection of cultural practices; they are not about creating commercial interests.