Editor: Justin Healey
ISBN 978 1 920801 66 3
Year 2007

Price: $19.95

  
Native Title and Land Rights

Volume 256, Issues in Society
Continued connection to land and country is of profound social and cultural significance to Aboriginal and Torres Strait Islander people. Since the landmark 1992 Mabo decision the modern land rights movement has given way to a complicated and protracted legal process created to resolve claims of pre-existing rights and interests in relation to land and waters. The recent successful Noongar claim over metropolitan Perth has brought into focus the practical and symbolic complexities of native title. What is the history of land rights and native title in Australia, and what is the difference between the two? What is the process of native title applications and land use agreements, and what are their impacts on those with interests in the land under claim? The federal Government is currently proposing reforms to the litigious native title system – what are they, and what is their impact on the cultural, social and financial status of the first Australians and the nation as a whole?


Chapter 1: Land Rights and the Native Title Process
Aboriginal people and the land; Indigenous land rights and native title; Land rights: an overview; Background on native title; Mabo and Wik; A beginner's guide to Indigenous land rights in Australia; What is native title?; What happens when there is a native title application?; What's the difference between native title and land rights?; Land acquisitions and land management; Native title applications; Indigenous Land Use Agreements: frequently asked questions; Native title determinations.

Chapter 2: Native Title Progress and Reform
Native title: the government's proposals for reform; Outcomes will be streamlined; A good land right is a good deed; Turning back the clock for Aborigines; Black revolution; Land of opportunity; Land rich, dirt poor; Taking the fight from native title; Title win boosts capital city claims; A mighty moral victory; Talking native title; Foes of native title care only for the rich; Native title is still alive; Native title: beyond the backyards and beaches.

Glossary; Facts and Figures; Additional Links and Resources; Index of Contentsnt
 

Facts and Figures

• The Australian Government recognises the unique affinity which Aboriginal and Torres Strait Islander people have with the land and the importance of land to their social and cultural development and, particularly in non-urban areas, their economic self-empowerment.

• From the early 1970s the Australian Government commenced purchasing privately owned land (especially in rural Australia) for the benefit of Indigenous communities. The Australian and State Governments also began to legislate to return certain Crown land to Indigenous communities and to allow claims to other Crown land. The Aboriginal Land Rights (Northern Territory) Act 1976 is the best known example, resulting in almost 50% of land in the Northern Territory being owned collectively by Indigenous people.

• The Government continues to support the operations of the Aboriginal and Torres Strait Islander Land Fund and the Indigenous Land Corporation which assist Indigenous communities to acquire and manage land. The Land Fund has a capital base of approximately A$1.4 billion to assist Indigenous people to acquire and manage land in recognition of the fact that many have been dispossessed and dislocated from their traditional lands and are unable to assert native title rights.

• Currently, Aboriginal and Torres Strait Islander peoples (who represent under 3% of the total Australian population) own or control approximately 20% of the Australian continent as a result of statutory land rights schemes and the recognition of native title. This is equal to 150 million hectares.

• With the exception of Western Australia, all Australian states and territories have introduced some form of statutory land rights for Aboriginal peoples and/or Torres Strait Islanders. The process by which land is acquired varies both across and within jurisdictions depending upon the particular legislative regime. The areas recognised as available for claim are often very limited and a grant of title is often preconditioned on the leasing back of the land to the government for use as national parkland or for other public purposes. Accordingly, many Indigenous people can not gain recognition of their rights over their lands under these regimes.

• The 1992 decision by the High Court of Australia in the case of Mabo v Queensland (No.2) was a watershed in Australian law. In that case, concerning the legal rights of the Meriam people to the lands of the Murray Islands in the Torres Strait, the High Court held that the common law of Australia recognises a form of native title to be determined in accordance with Indigenous traditional law and custom. In doing so, the Court rejected the notion that Australia was terra nullius, that is, land belonging to no one, at the time of British settlement.

• In Mabo and a number of more recent decisions, the High Court has characterised native title as being able to be possessed by a community or individual depending on the content of the traditional laws and customs; inalienable other than by surrender to the Crown; and ranging from access and usage style rights to rights of exclusive possession. Native title rights and interests are based on laws and customs that pre-date the British acquisition of sovereignty. Native title rights and interests may exist over land and waters to the extent that they are consistent with other rights established over the land by law or executive action.

• The year after the Mabo decision, the Australian Government passed Commonwealth legislation which set out how native title would operate. The Native Title Act 1993 established the National Native Title Tribunal and, among other things, provided a process through which Indigenous Australians could lodge claims for recognition of native title. In 1998, significant amendments were made to the Act, including the introduction of the registration test and indigenous land use agreements (ILUAs).

• Native title involves the recognition of pre-existing rights and interests of Aboriginal people and Torres Strait Islanders in relation to land and waters. A successful land rights claim usually results in a special grant of freehold title. Land rights involve the grant of interests in land under various legislation. Other differences between the two relate to what areas can be claimed, who can make a claim and the claim process.

• In 1993 the Commonwealth Government announced a three-stage response to the 1992 Mabo decision of the High Court of Australia: establishing native title legislation to recognise and protect native title in Australia (the Native Title Act 1993 (Cth)); setting up the National Native Title Tribunal to assist people to resolve native title issues; and establishing a land fund (the Aboriginal and Torres Strait Islander Land Fund) and the Indigenous Land Corporation (ILC) to assist Aboriginal and Torres Strait Islander people buy and manage land.

• As at 24 July 2006 the Indigenous Land Corporation had purchased 201 properties within Australia.

• The progress of claims through the courts has been both slow and costly. According to the National Native Title Tribunal (as at 23 September 2006), there are 547 native claims pending, including 12 compensation claims. Only 91 claims have been finalised. Of these, 62 said native title existed and 29 said it did not. Fifty-three determinations were by consent and only 20 were settled by litigation. In contrast, 251 registered indigenous land use agreements have been put in place by negotiation.