The Land Rights Act for the Northern Territory was passed in the Federal Parliament in 1976, but this was only a law for Aboriginal people living in the Northern Territory. The other states and territories missed out.
In 1982 Eddie Mabo complained to the High Court that Queensland didn’t recognise that indigenous people had a system of law and ownership before British settlement. Eventually a decade later in 1992, the High Court ruled that indigenous traditional title to the land had survived British settlement and it was called native title.
As a result, Mabo’s people, the Meriam, had native title rights over their islands.
The decision meant that native title could survive anywhere in Australia so long as:
Native title is the name used for recognition by Australia’s laws that Indigenous people had a system of law and ownership of their lands before European settlement
It recognises that Aboriginal people have rights and interests in their lands and waters through their traditional laws and customs;
Native title recognises that Indigenous people have traditional rights to speak for country;
But native title does not provide Indigenous people with ownership of the land or stop development like land rights under the Aboriginal Land Rights Act does.
These rights and interestsunder native title are called ‘common law’ Indigenous property rights and were recognised by the High Court in the Mabo judgment (3 June 1992) and made into legislation in 1993.
Until then, the legal system in Australia had wrongly assumed that the land of Australia had belonged to no one, or was terra nullius, when the British arrived in 1788.
The common law, originally founded on custom and tradition, is the British system of judge-made law, based on precedent. Native title is not a new type of land grant but a common law right that pre-dates the European settlement of Australia.
The Mabo judgment found that a native title to land existed in 1788 and may continue to exist provided it has not been extinguished by subsequent acts of government and provided Indigenous groups continue to observe their traditional laws and customs.
The High Court's Wik judgment (December 1996) decided an issue left unresolved by the Mabo judgment when it determined that native title could coexist with other rights on land held under a pastoral lease.
To give statutory recognition to Indigenous common laws rights and resolve a number of land management issues, the Commonwealth legislated the Native Title Act 1993 which was amended by the Coalition Government in 1998.
Following the passage of the Native Title Amendment Act 1998 through the Federal Parliament in July 1998, extensive changes to the Native Title Act 1993 (NTA) were introduced at the end of September and October 1998.
In addition, several important court decisions dealing with native title matters were handed down during the year. The amendments to the NTA rewarded State and Territory governments that had operated outside the Native Title Act, by validating the invalid interests granted by those governments between 1 January 1994 and 23 December 1996.
This regime of extinguishment and validation of titles resulted in the legislative extinguishment of native title over significant tracts of land across the country. The protective mechanisms under the future act regime under the Native Title Act were wound back, and provision was made for State and Territory based schemes of uncertain content to replace the right to negotiate.
A new and onerous registration test was introduced and has been applied retrospectively to all existing native title applications. This raises the real possibility that native title holders will lose the right to negotiate over development and mining proposals, in addition to the loss of their right to have a say in the diversification of the use of pastoral land, as has already occurred under the amendments.
Apart from the introduction of Indigenous Land Use Agreements, there is little in the amendments for native title holders to applaud, and much to cause them distress.
Given the complexity of the legislation and the few benefits that the new NTA provides, the likelihood of further legal challenges and ongoing uncertainty remains high.
The NTA explains when native title is lost.
For example: Freehold titles and most leases over land extinguish (or finish) native title completely (except some titles held by Aboriginal people); Pastoral leases only partially extinguish native title; and, Aboriginal titles, like land rights title or Aboriginal-owned pastoral
stations, will generally have no affect on native title. Some land titles will generally extinguish (or finish) native title completely, but a pastoral lease will only extinguish some native title rights.
Many native title claims are for shared rights to the land with other people who also have an interest in the land.
Recognition of native title may give Indigenous people the right to hold ceremony, gather bush tucker or have a say on what development can
happen on the land.
Examples of native title rights:
Native title DOES NOT give you:
The Northern Territory Aboriginal Land Rights Act (Northern Territory) 1976 is about returning land to Aboriginal people.
The Land Rights Act mainly concerns vacant Crown Land outside towns and Aboriginal owned pastoral stations.
When Aboriginal people get Land Rights Act title to country, they own that land under Australian Law. Both Aboriginal law and Australian law say that the traditional owners of that land are the only ones who can speak up about it.
A Land Rights Act title is called Aboriginal freehold title and it's inalienable which means it can't be bought or sold and is owned collectively by an Aboriginal land trust.
The Land Rights Act began in 1976 but no new claims under this legislation have been able to be made since 1997 due to a 'sunset clause' introduced by the Hawke Government. That means only Aboriginal people who already have Land Rights title for their country or who made a Land Claim before 1997 can use it.
The Native Title Act is about rights to country, which can co-exist with the rights of non-Aboriginal people. It's different to the Land Rights Act because the claimants don't get Aboriginal freehold title to that land. Native title may exist on vacant Crown land, national parks, public reserves, other public lands and also on pastoral leases. Native title cannot be claimed on land where there are privately owned homes or other private property such as commercial or residential property under freehold title
Although native title is not a strong title like title under the Land Rights Act it can exist even if the claimants country is a pastoral lease, a mining lease or even a town.
If native title is proven to exist on land, activities like pastoralism or mining can still continue. Native Title gives Aboriginal people a limited say about what activities can occur on that country.
Native title is held by Aboriginal and Torres Strait Islanders peoples who have maintained a ‘continuing connection’ with their lands and waters, in accordance with their traditions.
Connection may involve responsibilities for land in ways not envisaged by Western systems of land ownership. Connection may be maintained in many ways other than mere physical association.
Sometimes native title holders will be financially compensated for the loss of
native title rights or because some activities are taking place on the land.
These might include mining, farming and tourism or any other development
that extinguishes or affects native title on the land.
The CLC was given the functions of a representative Aboriginal/Torres Strait Islander body under the Native Title Act on 1 January 1994.
Since that time a dedicated Native Title Unit has been established to protect and advance the rights and interests of native title holders within the CLC's region. The Native Title Unit now employs staff with expertise in a range of areas including Aboriginal languages, cross-cultural communication, anthropology, history, research, administration and law.
The NTA also allows governments, companies and native title holders to negotiate agreements about future developments on the land. These are called Indigenous Land Use Agreements (ILUAs). ILUAs are like normal agreements or contracts but the NTA ensures:
This allows developers to make plans for development and means native title holders can negotiate employment opportunities and compensation and the protection of sacred sites.
Under the NTA, the Government must notify native title holders of any new exploration proposal. If the government thinks the effect on native title will be minor, it can fast track the proposal. This is usually done for exploration which doesn’t involve much digging on country.
If the fast track is used, the company does not have to negotiate with native title holders and can just carry out the exploration. If the Government decides the fast track does not apply, the company needs to negotiate (or talk) with native title holders about its plan.
In the CLC’s experience, companies have been willing to negotiate ILUAs for exploration so they can build relationships with native title holders evenif the native title claim hasn’t been registered.
Native title holders will always have a right to negotiate over the actual mining process as long as they have a registered native title claim.
So native title holders can usually negotiate an agreement about exploration or mining with benefits for employment and the protection of sites, but they will not be able to block any application by a company.
