Native Title Act

The Native Title Act refers to legislation passed by the Australian Parliament in 1993 that sought to protect the legal and moral rights of the Aboriginal Australians and Torres Strait Islanders to their land and water according to Australian law. The law is the result of the 1992 court case Mabo v. Queensland, which ruled that the Meriam people have rights regarding the islands in the eastern Torres Strait. The decision also ensured that all Aboriginal people hold native title to their land and clarified that their ancestors were already living on this land when the British colonized it in 1788. The provisions of the act may also allow Aboriginal Australians to use the land to erect structures, camp on, perform traditional ceremonies, gather food and medicinal resources, and hunt. The Native Title Act took effect January 1, 1994.

Background

Aboriginal Australians’ fight for the rights to their land and water began before the British colonization of Australia in 1788 and Queensland’s annexation of the Torres Strait in the 1870s. In 1768 Lieutenant James Cook was instructed to take possession of any land that he could find for King George III. Despite Aboriginal Australians inhabiting much of the land and possessing their own legal and social systems, English Common law stated that if the land was occupied by “uncivilized” peoples, it could be settled on. Believing that this definition described the Aboriginal Australians, Cook took possession of the land by terra nullius, a legal concept holding that the land of Australia was unowned and open for the taking by Europeans during the period of colonization.

The first significant legal proceeding in recognition of Aboriginal people’s rights to their land came in 1963 when the Yolngu brought the Yirrkala Bark Petitions to the Australian Parliament. The petitions were a response to the Australian government’s decision to grant a lease to a mining company that covered much of the Yolngu’s traditional lands. The Yolngu leaders were concerned about the impact of mining on their land, culture, and way of life and considered the granting of the lease to be a violation of their traditional rights. However, in 1971 the courts ruled that the Yolngu could not assert native law on this land.

In 1966 the Wave Hill Walk-Off occurred when two hundred Gurindji workers, led by Vincent Lingiari, went on strike at the Wave Hill cattle station in the Northern Territory. The Gurindji people had been working for the British colonizers and their descendants since the late nineteenth century. They were paid in rations of flour, sugar, and tea and denied the ability to leave the station without permission. The workers protested poor working conditions and unequal pay and demanded the return of their ancestral lands.

The walk-off lasted for several years, and Lingiari became a national figurehead for Indigenous rights and land justice. The Gurindji people gained public support throughout Australia and drew worldwide attention to the struggles of Aboriginal Australians. In 1975, the Australian government handed a portion of the station back to the Gurindji people as land rights, marking the first successful land rights claim in Australia.

Overview

Several actions were taken to recognize Aboriginal Australian’s land rights. The Aboriginal Land Rights (Northern Territory) Bill was enacted in 1976 by the Australian federal government and for the first time recognized the land rights of Aboriginal and Torres Strait Islander people in the Northern Territory of Australia. The bill granted Aboriginal Australians ownership and the right to use and occupy land that they had traditionally occupied and to control mining on the land.

The Anangu Pitjantjatjara Yankunytjatjara (APY) Land Rights Act was passed in South Australia in 1981. It granted the APY people freehold title to approximately 39,768 square miles (103,000 square kilometers) of land in South Australia. Under this act, the APY people exercised greater control over their traditional land and waters, controlled access to and use of the land by the public and asserted their rights and interests in mining operations.

Mabo v Queensland (No 1) was an Australian legal case that began in 1982 involving Eddie Mabo and other Meriam people from the Murray Islands in the Torres Strait. They argued that their traditional rights had been breached by the Queensland authorities, who had annexed the islands in 1879 without any compensation to the Meriam people or consultation about their land ownership. However, in 1985, the Supreme Court of Queensland ruled against the Meriam people, rejecting their claim that the Queensland government’s annexation of the Murray Islands was unconstitutional.

In 1992 Mabo v. Queensland (No. 2) became the landmark Australian legal case for Aboriginal Australians regarding rights to their traditional land and water. The case challenged the doctrine of terra nullius. In this case, Edward Koiki “Eddie” Mabo and the Meriam people of the Murray Islands in the Torres Strait argued that they had never ceded ownership of their land to the British Crown and were entitled to possess and occupy it. This time the court ruled in favor of the Aboriginal Australians. The ruling recognized the inherent rights of Indigenous peoples to their traditional lands and paved the way for greater recognition and protection of Indigenous land rights.

The Native Title Amendment Act 1998 amended the Native Title Act 1993. Proposed by the Australian government, the amendments were considered controversial, and many opposed them, including Indigenous groups, academics, and human rights organizations. The amendments changed the requirements for Indigenous groups to claim native title and introduced new hurdles for native title claimants to overcome, particularly in relation to evidence of traditional ownership and continuous connection to the land.

Since the 1998 amendment, numerous cases have contributed to the ongoing evolution of native title law in Australia, including Yanner v Eaton (1999); Ward v Western Australia (2002); and Timber Creek v Northern Territory (2018). In 2022, a federal court granted approximately 25,000 square miles (65,000 square kilometers) of Cape York into the Torres Strait as land and water belonging to native groups. The claim was made by five groups of Aboriginal Australians to achieve the joint goal of native title ownership, marking the first time that Aboriginal and Torres Strait Islander Australians joined together in this fight.

Dana Ferguson

Bibliography

Cromb, Natalie. “Native Title.” Australian Museum, australian.museum/learn/first-nations/native-title/. Accessed 19 June 2023.

Richardson, Holly and Mark Rigby. “Cape York Native Title Claim Celebrated by Aboriginal and Torres Strait Islander Groups.” ABC Far North, 13 Nov 2022, www.abc.net.au/news/2022-11-30/cape-york-native-title-claim-aboriginal-torres-strait-islander/101716036. Accessed 19 June 2023.

“About Native Title.” Australian Institute of Aboriginal and Torres Strait Islander Studies, www.aiatsis.gov.au/about-native-title. Accessed 19 June 2023.

“APY Lands Leaders Celebrate as 40th Anniversary of Anangu Pitjantjatjara Yankunytjatjara Land Rights Act Is Marked.” ABC News, 1 Oct. 2021, www.abc.net.au/news/2021-10-02/sa-40th-anniversary-of-apy-lands-rights-act/100509422. Accessed 19 June 2023.

“The Mabo Decision.” Parliament of Australia, www.aph.gov.au/Visit‗Parliament/Art/Exhibitions/Exhibition/~/link.aspx?‗id=5023CB552610493E958B41EAB10085A7&‗z=z. Accessed 19 June 2023.

“Native Title, Rights and Interests.” National Native Title Tribunal, www.nativetitle.org.au/learn/native-title-and-pbcs/native-title-rights-and-interests. Accessed 19 June 2023.

“What Is Native Title?” Kimberly Land Council, www.klc.org.au/what-is-native-title. Accessed 19 June 2023.

“Woodward Commission Anniversary; Looking Back at Land Rights.” NITV, www.sbs.com.au/nitv/article/woodward-commission-anniversary-looking-back-at-land-rights/b47xlagrm. Accessed 19 June 2023.