Native title in Australia

Native Title in Australia refers to the legal recognition that some Aboriginal Australians and Torres Strait Islanders continue to hold rights to land and water based on their traditional laws and customs. The concept of Native Title was established in 1993 after a decade-long court case in which a group of Torres Strait Islander peoples sought legal recognition that they were the rightful owners of their traditional lands. The ruling established that the Aboriginal and Torres Strait Islander peoples were the original inhabitants of the continent. It also overturned the eighteenth-century legal concept that the land was not owned by anyone and was free to be claimed by the British, who colonized the continent throughout the eighteenth and nineteenth centuries in a process that severely displaced and marginalized Australia's First Nations people.

Australia’s Native Title laws allow First Nations people to file claims for certain lands or waters that are not already held by a valid legal claim, such as a lease. In many cases, Native Title claims can run concurrently with existing non-Indigenous land claims. In general, successful Native Title claims may allow Aboriginal and Torres Strait Islander peoples the right to camp, hunt, perform ceremonies or hold meetings on their traditional lands. It may also allow them to protect those lands from outside development.

Background

Scientists believe First Nation Australians first arrived there at least as far back as 50,000 to 65,000 years ago. They mostly settled in the more fertile regions along the coasts and in the islands of the Torres Strait. These first Australians were semi-nomadic hunter-gatherers who moved within a defined territory in search of food. Because they moved often, the people developed strong ties to family groups and communities at the expense of a national identity. The Aboriginal and Torres Strait Islander peoples placed great value on their traditional territories, feeling a spiritual connection to their homelands. However, they did not claim ownership of their land. Instead, they believed the people belonged to the land and cared for it, but did not possess it.

The first Europeans landed in Australia in the seventeenth century, but it was not until 1770 that explorer and military officer James Cook claimed much of the eastern parts of the continent for Great Britain. At the time, an estimated 750,000 Aboriginal and Torres Strait Islander peoples lived in Australia. However the British considered the land to be a ‘wasteland,’ unclaimed by other sovereign nations. They declared Australia as terra nullius, or ‘land belonging to no one,’ and therefore free to be legally claimed by the British Crown.

The first settlers arrived in 1788, and within the next several decades, the British established colonies across much of the continent. As the British expanded their territory, they often seized land from the Aboriginal and Torres Strait Islander peoples under the pretense of terra nullius. In the years after the arrival of the British, about 90 percent of Australia’s First Nations population was estimated to have been killed by disease or murdered by White settlers. The nation’s Aboriginal and Torres Strait Islander peoples spent nearly two centuries living as second-class members of society, deprived of full citizenship and many common rights until the 1960s.

Overview

In 1971, an Australian court heard a land claim brought by the Yolngu people concerning the Gove Peninsula in the Northern Territory. The court ruled against the Yolngu, upholding the Crown’s right to terra nullius at the time of the first colonization. At issue was the legal definition of ‘settlement’ v. ‘conquest’, as the British would have been legally required to recognize the customs of a ‘conquered’ people. As it were, the court ruled that the British had settled Australia under terra nullius and were not legally responsible for recognizing Yolngu claims and customs. Similar cases were brought before the courts in 1977, 1979, and 1982, but each was decided in the same manner.

In 1982, Eddie Koiki Mabo, a member of the Meriam people of Mer Island (Murray Island) in the Eastern Torres Strait, was shocked to discover that his people did not have any rights to their traditional lands. After learning of the concept of terra nullius from two college professors, Mabo joined with four other plaintiffs and filed a legal claim on behalf of the Meriam. The claim held that the island had been continuously inhabited by the Meriam who had established permanent settled communities there long before the British arrived. Furthermore, the Meriam had political and social organizations that had been well established by the time of British contact.

The case, referred to as Mabo v Queensland, took a decade to reach a final decision, going through the Queensland Supreme Court before finally reaching the High Court of Australia. In 1992, the Court ruled in favor of Mabo and his fellow plaintiffs, granting the Meriam people the legal right to the majority of the land on Mer Island. The Court’s decision did not claim Australia was a ‘conquered’ territory, but rather invalidated the concept of terra nullius and established that the first inhabitants of the land had some rights to their traditional lands. In essence, the ruling legally recognized for the first time that Aboriginal and Torres Strait Islander peoples were the original inhabitants of Australia and that their rights had been violated by the British Crown. A year later, Parliament passed the Native Title Act 1993, enshrining the Court’s decision into law. The 1992 ruling and the 1993 law both granted the Crown the right to nullify Native Title rights. A subsequent 1996 ruling established that Indigenous title claims could co-exist with non-Indigenous title claims.

Specifics of the law. In order to claim Native Title rights, Aboriginal and Torres Strait Islander peoples must be able to prove that any land in question has been in their possession under their traditional laws and customs. Those laws and customs must have existed and been passed down from the time of initial British settlement. Claimants must also prove that they have a long-established traditional ‘connection’ to the land. Lastly, the Native Title claim must also adhere to the common law of Australia.

Native Title rights can be exclusive or non-exclusive. Exclusive rights give Aboriginal and Torres Strait Islander peoples sole authority over the control and access to their land. Non-exclusive rights are shared with other claimants, meaning the landholders cannot control access to the land. Native Title rights can be claimed on vacant Crown land, public parks, public beaches, oceans, lakes, and non-privately owned waterways. They can also be claimed on some government-held land and some land held by First Nation Australian communities. Rights claims cannot be made on privately held land or on public land that includes roadways, hospitals, or schools.

Native Title rights are not granted by the federal or state governments, but can only be allocated through the Federal Court of Australia. The court judges each case according to its individual merits and typically must determine if a claimant has a legal connection to the land and if that connection has not been ‘extinguished’. For example, grounds for a connection being extinguished could come from the claimant’s ancestors legally selling the land in the past. The court could also refuse to honour a connection if the land has been leased out or if a public works project has been constructed on the site.

Being granted Native Title recognizes the right of claimants to use the land in several ways. However, each case is different, and claimants’ rights will vary depending on the judgment. These uses can include the right to hold traditional ceremonies or camp on the land. It can include the right to build structures, hunt, fish, gather food, and maintain the land. Aboriginal and Torres Strait Islander peoples can also be rented the rights to share in monetary gain from the use of the land and have a say in how the land is managed. Once Native Title is granted, it cannot be sold or transferred. While there are some limited options for leasing Native Title land, most often, it can only be surrendered to the Crown and the rights of the claimants extinguished.

By the mid-2020s, over 580 Native Title decisions had been granted since the law took effect in 1993, with a few of these decisions still contested or not yet implemented. By the start of the 2020s, these decisions had granted claimants about 2.8 million square kilometers of land—roughly 37 percent of Australia's total area. One of the most extensive Native Title claims in history was finalized in 2018 between Western Australia and the Noongar people. The decision granted 200,000 square kilometers of land in the southwestern corner of the state to the Noongar, along with $600 million to be held in trust for twelve years. The decision affected about 30,000 people and had a price tag of about $1.3 billion. The settlement was initially agreed to in 2015 but took three years to finalize. Meanwhile, many Aboriginal and Torres Strait Islander activists continued to press for further recognition from the Australian government, including formal representation in the country's parliament and establishing a formal treaty, or series of treaties, between the Australian government and the country's First Nations people.

Bibliography

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