In the last year of the Howard Government, two pieces of legislation were passed:
the Native Title Amendment Act 2007 and the Native Title Amendment (Technical Amendments) Act 2007. These Acts were designed to improve the effectiveness of the groups representing Indigenous communities who made a claim; to make the process of consultation, dialogue and negotiation with state and territory governments more open and transparent; to accelerate this process; and to financially assist those involved as they navigate the complex legal obstacles of the Acts.
The Rudd Government has continued this reform process. In 2009 it announced significant changes to the Native Title Amendment Act. The federal Minister for Indigenous Affairs, Jenny Macklin, recently demonstrated a growing commitment within the government to further native title law reform when she stated:
‘Native title is a right that must be used as a tool to bring about positive change, for social purposes, for cultural purposes and for economic purposes. It must be used as part of our armoury to close the gap between Indigenous and non-Indigenous Australia. Mabo would have expected no less.’
Jenny Macklin, The 3rd Annual Negotiating Native Title Forum, 19–20 February, 2009
REVIEW
1 Outline some of the recent changes introduced to native title law in Australia.
2 Using examples and statistics, describe the complexity of native title issues in Australia.
LAW IN ACTION
1 Examine the Yorta Yorta case on page 135 and complete the following activities.
a Outline the claim of the Yorta Yorta people.
b What was the ruling of Justice Olney?
c Outline the ruling of the High Court when it heard the appeal of the Yorta Yorta people.
d Analyse the consequences of this case.
2 Write an extended response assessing the effectiveness of native title law reform.
3 Read the response of Henry Atkinson to the Yorta Yorta decision. Explain the views expressed by Atkinson.
4 In 2009, Aboriginal leader and legal academic Mick Dodson was named Australian of the Year. Use the Internet and other resources to research the work of Dodson in promoting Indigenous rights in Australia. Present your research in a report format.
When the British invaded the Australian continent they viewed the Indigenous people as being primitive.
The British used this belief to assert that the land was ‘terra nullius’, that it ‘belonged to no-one’. As a result, they applied the doctrine of reception, which declared that, once the British had settled the land, only their law existed and applied.
The British divided the possession of land in Australia into three types of land title under common law:
freehold, leasehold and pastoral lease.
Indigenous Australians, most of whom were removed from their homelands, were never granted or sold any title to their land. This situation lasted for most of the 20th century.
Eddie Mabo set out to challenge the legal fiction of terra nullius. He and his people presented their arguments in two cases – Mabo v. Queensland (No.
1) (1988) and Mabo v. Queensland (No. 2) (1992) – before the High Court of Australia. They were successful.
The doctrine of terra nullius was overturned and the existence of native title was recognised.
The Native Title Act 1993 (Cwlth) recognised native title and allowed Indigenous Australians to claim land where they can prove that they have maintained their traditional links with it. Native titleholders can negotiate directly with mining companies that hold mining rights. In 1996, the
High Court held in Wik Peoples v.
Queensland that pastoral leases did not extinguish native title. Both pastoral leases and native title could coexist.
The Wik decision created an uncertainty among some groups in Australia and new laws to reduce the scope and nature of native title rights were introduced.
The federal government’s Native Title Amendment Act 1998 (Cwlth) placed many technical obstacles in front of Indigenous Australians, making it harder to prove their claim to their land. The Yorta Yorta people’s claims in Members of the Yorta Yorta Aboriginal Community v. Victoria (2002) were dismissed by Justice Olney’s stark and provocative pronouncement that any proof of their ties to their land had been ‘washed away by the tides of history’.
Despite these obstacles, determined Indigenous groups persisted in pressing their land rights claims before the Native Title Tribunal. This independent body had been set up as a result of the Native Title Act 1993 (Cwlth).
They were heartened by international pressure also critical of the federal government’s new legislation.
More recently a number of changes have been introduced to allow for greater recognition of native title rights.
Indigenous Land Use Agreements are now also being used to allow Indigenous people greater access to their traditional lands.
CHAPTER SUMMARY
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Chapter 9: Native title
MULTIPLE-CHOICE QUESTIONS
1 What is the meaning of ‘terra nullius’?
A ‘Afraid of the land’
B ‘Land belonging to no-one’
C ‘Land that does not exist’
D ‘Land for nothing’
2 Which of the following statements best describes customary law?
A It is made up of Indigenous customs, beliefs and cultures developed over thousands of years.
B It is based on the doctrine of precedence.
C It is part of all common law of Australia.
D It is recognised by the High Court of Australia as co-existing with the body of criminal laws in Australia today.
3 What is a pastoral lease?
A Land owned by farmers
B Farming land that is subject to native title C Crown land that is rented by farmers
D Land that any farmer can use to graze their stock on
4 Which of the following statements best describes the concept of native title?
A Land that has been declared terra nullius
B Any land that Indigenous people have a close spiritual connection to
C Land that was once privately owned but which has now been given to Indigenous people against the wishes of the private landowners
D Land that Indigenous Australians can show they have had an uninterrupted connection to and are able to gain some control over
5 Why was the Mabo case so important to Australia’s legal system?
A The case established the concept of terra nullius.
B The High Court ruled that the declaration of terra nullius was invalid.
C The High Court granted Indigenous Australians rights over all their traditional lands.
D The High Court ruled that Indigenous Australians had the right to self-determination, meaning they could decide on how their traditional land could be used.
SHORT-ANSWER QUESTIONS
1 Outline the roles of the High Court and parliaments in the process of making a claim for native title.
2 Outline the effect of the doctrine of terra nullius on native title.
3 Describe the importance of the Gove Island land rights case.
4 Describe the three types of land ownership under British law.
5 Explain the effect of the Wik decision on land rights in Australia.
6 Analyse the key features of native title.
7 Analyse the ways in which native title legislation has supported or undermined case law.
8 Assess the effectiveness of the law reform process in granting native title.