Native Title Act 1993
The Native Title Act 1993 is a significant piece of legislation in Australia that emerged following the landmark court case, Mabo v. Queensland. This Act acknowledges that Aboriginal and Torres Strait Islander peoples have longstanding connections to their ancestral lands, allowing them to claim native title if they can demonstrate these connections. It grants rights to live on, use, and engage in cultural activities on the land, although proving documentation of continuous connection has proven challenging for many Indigenous groups, particularly due to historical reliance on oral traditions rather than written records.
The Act recognizes that native title is not conferred by the Australian government but is an acknowledgment of pre-existing rights. Despite its intentions, the process of obtaining native title can be fraught with difficulties, as it often intersects with the rights of non-Indigenous land users, leading to complex negotiations. The Act has undergone multiple revisions aimed at improving transparency and dispute resolution, reflecting ongoing efforts to address the historical injustices faced by Indigenous peoples. Despite these advancements, Australia still lacks a formal treaty with Indigenous groups, a situation that activists are increasingly advocating to change. As of 2023, numerous local treaties are in effect, signifying a growing movement toward recognizing and formalizing native rights within the broader Australian legal framework.
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Native Title Act 1993
The Native Title Act 1993 was developed by the Australian government after a landmark court case, Mabo v. Queensland. It recognizes that Aboriginal groups in Australia have longstanding connections to certain areas of land. If they can prove these connections, they can be granted native title to that land. This means that it is theirs on which to live, use or visit ceremonially, hunt and fish, and teach or engage in cultural activities.
Gaining access to land under the Native Title Act has proven more difficult than some think it should. Courts often require Aboriginal groups to demonstrate connections to land that have not been documented. Others accuse courts of denying native title for the sake of profit, especially when the land in question contains oil, gas, or mineral reserves. The Act has been revised several times since 1993 in efforts to make it work better for both Aboriginal and non-Aboriginal Australians.
Background
In 1982, an Aboriginal tribe—the Meriam—filed a claim in the High Court of Australia. The Meriam people had historically occupied land around and islands in the Eastern Torres Strait, which is between Queensland, Australia, and Papua New Guinea. They claimed that, according to their own customs and laws, they should have ownership of Murray Island, which they call Mer.
The first plaintiff in the case was Eddie Koiki Mabo, whose family name gives the case its name, Mabo v. Queensland. However, other Meriam people were also plaintiffs in the case, including Sam Passi, Davi Passi, James Rice, and Celuia Mapoo Salee.
It took ten years for the case to resolve. In 1992, the High Court agreed with the Meriam people, acknowledging that their rights to the island in question existed before the colonization of Australia.
Before this ruling, land in Australia that was not specifically owned by a person or an entity was called terra nullius, or “land belonging to no one.” The concept was used by the first colonizers from England who did not understand the relationship Aboriginal peoples had to the land. The legal case recognizes the fact that much of this land was occupied and used before Australia was settled by Europeans. It protects native rights to the land. The Native Title Act is based on this court case. It provides a process by which Aboriginal Australians and Torres Strait Islanders could establish formal rights to land that their ancestors had lived on and used for thousands of years. It also looks at how native title rights might interact with the rights of other people who might want or need to use that same piece of land and how those who should hold native title might be compensated if the land in question has been used for something else or when native title cannot be recognized for some reason.
The Act acknowledges that native title is not granted by the Australian government. Instead, it is recognition that Aboriginal people have lived on, used, and celebrated the land for ages and makes an effort to find a way for them to continue to do so. It attempts to do this while recognizing that others may also want to use that land in different ways.
Overview
While the Native Title Act of 1993 took steps to acknowledge the effects that colonization had on Aboriginal peoples, most see it as an imperfect solution. It can be very difficult for native people to provide the documentation required to get a native title. Most of the time, they are required to show that they have a continuous system of both law and custom that A) began before colonization and B) is connected to the land to which they want native title. This can be difficult or impossible because precolonial Indigenous Australians relied on oral tradition and did not have a written language.
Even once native title is granted, the people do not have exclusive rights to that land. They can negotiate with anyone who wants to develop it for any reason, but they cannot keep developers out completely. In fact, when companies want to mine the land or extract oil or natural gas from it, or when ranchers want grazing rights, or when the federal government wants access for any reason, indigenous people say that these rights often come before the native title rights.
Sometimes, granting native title is impossible if the land in question has been damaged or can no longer be used by indigenous peoples in the ways they traditionally would have used it. Getting compensation involves both proving the connection to the land, as outlined above, and showing how damage has been done in permanent disconnection from the land. Some native groups have successfully navigated this process and received compensation. One of the best-known of these cases is Griffiths v. Northern Territory of Australia. In that case, the Ngaliwurru and Nungali groups won a settlement of $2,530,350 AUD.
Since 1993, the Native Title Act has been revised multiple times. These revisions are meant to improve the ways in which the corporations that govern native title are run, making them more transparent and establishing a process for resolving disputes. They also seek to make it possible for native title to be granted on state and national park lands in some cases and to make the whole system more efficient. The Native Title Act has not only made it possible for some Aboriginal groups to regain access and rights to land that was taken from them long ago, but it has also contributed to social changes in the ways that Australians of European descent view and interact with Aboriginal people.
Though the Native Title Act of 1993 and its subsequent revisions have attempted to acknowledge damage done to Aboriginal people during and after the colonization of Australia, the country still does not have a treaty with native people. In many countries, treaties establish native rights much more securely than this act has. Parts of Australia have long been resistant to establishing a treaty, but that may be changing. As of 2023, about eight hundred regional agreements, or local treaties, were in effect, and many activists were pressuring the federal government to establish a national treaty.
Bibliography
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“About Native Title.” Queensland Government, 23 Jan. 2020, www.qld.gov.au/firstnations/environment-land-use-native-title/native-title/about-native-title. Accessed 25 Apr. 2023.
Forbes, Brooke. “Making Peace with Native Title in Australia: How a Treaty Can Unlock Change.” Jurist, 13 Feb. 2023, www.jurist.org/features/2023/02/13/making-peace-with-native-title-in-australia-how-a-treaty-can-unlock-change/. Accessed 25 Apr. 2023.
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“Native Title, Rights, and Interests.” Prescribed Body Corporate, nativetitle.org.au/learn/native-title-and-pbcs/native-title-rights-and-interests. Accessed 25 Apr. 2023.
Smith, Benjamin R., and Francis Morphy, eds. The Social Effects of Native Title: Recognition, Translation, Coexistence. ANU Press, Oct. 2007, press.anu.edu.au/publications/series/caepr/social-effects-native-title. Accessed 25. Apr. 2023.
“What Is Native Title?” The Kimberley Land Council, www.klc.org.au/what-is-native-title. Accessed 25 Apr. 2023.