The Central Land Council became a native title representative body under the Native Title Act (1993) in 1994.
We prepare native title applications, respond to development proposals with the potential to impact on native title rights and interests (‘future acts’), negotiate indigenous land use agreements (ILUAs) and support many corporations representing native title holders known as prescribed bodies corporate (PBCs).
In 2018, we published a plain-English introduction to native title and PBCs for native title holders.
A year later, we organised a PBC camp, the first PBC regional forum in Central Australia, at Ross River near Alice Springs.
The successful week-long information sharing event was attended by 80 native title holders from across our region. We responded to participant feedback and a second PBC camp will be held in June 2021.
Native title determinations
The Federal Court legally recognises the existence of native title. Most native title determinations in Central Australia are by agreement between all parties without the need for a trial, in other words, by consent.
In our region the court has made the following determinations:
FREQUENTLY ASKED NATIVE TITLE QUESTIONS
When the British arrived in 1788, they wrongly assumed that the land of Australia was terra nullius (land that belonged to no one). In 1992 the High Court, in its historic Mabo (No 2) decision, ruled that this assumption was incorrect.
The Mabo decision recognised the rights and interests that Aboriginal and Torres Strait Islander people maintained in their land and waters.
The Native Title Act 1993 (Native Title Act) is a law passed by the Australian Parliament that protects those native title rights and interests.
The act describes how to claim native title and how native title is recognised and protected in Australia. It sets out how native title rights and interests fit within Australian law.
Native title is not a new type of land grant but an indigenous common law right that pre-dates European settlement.
Native title is a collection of rights outlined in a native title determination and can vary from determination to determination.
Many native title claims are for rights that are shared with other people who also have an interest in the land, such as the rights to:
- visit and camp on country, including making camp fires
- get water from soakages, waterholes and rivers
- talk about a development proposal and try to make an agreement
- hunt and fish native animals
- get bush tucker, wood, ochre and other natural resources
- look after and protect sacred sites and other important places
- teach and hold meetings and ceremonies on country
- decide how other Aboriginal people can use the country
- take anyone on the country to help with cultural activities and research
In some areas, such as crown land and Aboriginal-owned pastoral leases, the strongest kind of native title rights can be recognised, where native title holders own the land. This is called exclusive possession native title and gives native title holders a right to say what can and cannot be done on that land.
Other people need permission before they can access exclusive possession native title areas.
However, in other areas, such as pastoral leases, shared native title rights do not give Aboriginal people ownership of the land. In those areas, native title holders generally cannot:
- stop people coming on the country
- build houses or make new outstations
- get water from bores or dams built by pastoralists
- light fires to clear country
- stop development
After the Federal Court agrees to a native title claim, the native title holders need to establish a corporation called a prescribed body corporate, or PBC. PBCs manage and protect native title on behalf of the native title holders.
As legal entities, PBCs have certain roles and responsibilities under the following laws:
- Native Title Act 1993 (Native Title Act)
- Native Title (Prescribed Bodies Corporate) Regulations 1999 (PBC Regulations)
- Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act)
- other commonwealth, state and territory legislation
The High Court’s Mabo (No 2) decision in 1992 holds that native title existed everywhere in Australia in 1788 and today may continue to exist where Aboriginal people continue to observe their traditional laws and customs. Its Wik judgment in 1996 determined that native title could coexist with other rights on land held under a pastoral lease. Because of this, native title can usually be claimed on pastoral leases and crown land but not on crown leases or freehold.
Freehold titles and most leases over land extinguish (or finish) native title completely, except for some titles held by Aboriginal people. Aboriginal titles, such as land rights title or Aboriginal-owned pastoral stations, will generally have no effect on native title.
Some land titles will generally extinguish native title completely, but a pastoral lease will only extinguish some native title rights.
An indigenous land use agreement (ILUA) is an agreement created by the Native Title Act.
An ILUA allows developers to make plans and seek consent from native title holders for development on native title land.
It also allows native title holders to negotiate the suppression or extinguishment of their native title rights and interests. Agreements may include employment, compensation and the protection of sacred sites.
Entering into an ILUA is voluntary. It includes full and final compensation to native title holders and must be registered by the Naional Native Title Tribunal.
The government must notify native title holders of any new exploration licence 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 does not significantly disturb country.
If the fast-track is used, the company does not have to negotiate with native title holders and can carry out the exploration. In our experience, companies are more successful if they voluntarily build relationships with native title holders at the exploration stage.
If the government decides the fast-track does not apply, the company must negotiate with native title holders about its plan.
Native title holders almost always have a right to negotiate with big developers such as mining companies.
If negotiations break down, native title holders cannot veto developments. Instead, the National Native Title Tribunal decides if the project can go ahead or not.
We have been a native title representative body for Central Australia since 1994. Our legal duties include:
- facilitation and assistance
- certification of native title determination applications and ILUAs
- dispute resolution
- notification of native title holders of future act activities
- agreement making
- provision of a process for review of our decisions and actions and publication of that process
For more information go to Native Title Act made simple.
The history of the Native Title Act
The federal parliament passed the Aboriginal Land Rights Act for the Northern Territory in 1976. The act applies only to Aboriginal people with connections to land in the Northern Territory. The other states and territories missed out.
In 1982 Eddie Mabo, from Mer Island in the Torres Strait, complained to the High Court that Queensland didn’t recognise that his people, the Meriam, had a system of law and ownership before British settlement.
In 1992 the court ruled that indigenous traditional title to the land had survived British settlement and called it native title. As a result, Mabo’s people had native title rights over their islands.
The decision meant that native title could survive anywhere in Australia, as long as indigenous people had maintained Aboriginal law and customs on that land and no other titles allowing ownership of that land had extinguished (or finished) the native title.
The Alice Springs native title claim
Nearly 130 years after European settlement (see timeline below) began in Central Australia, the common law of Australia finally recognised the native title rights and interests of the traditional owners of the Alice Springs area.
This decision was the first in Australia to recognise native title in an urban area.
The native title claimants lodged an application with the Native Title Tribunal in 1994, but no agreement could be reached with the government. In 1996 the application went to the Federal Court.
The court heard from the native title claimants about how they and their ancestors have continued to live in and around Alice Springs according to Aboriginal culture. They hunted and gathered bush tucker, bush medicines and other resources on their country, and have continued to look after the country and exercise their rights to make decisions about it.
In May 2000, six years and several hundred thousand dollars later, the court recognised coexisting native title rights and interests on most reserve, park and vacant crown land and waters within Alice Springs (including rights to possess and occupy, use and enjoy the land, and make decisions about the use of the land).
The native title holders set up Lhere Artepe as their prescribed body corporate, or PBC, to make decisions about future land use in the town.
Mbantua (Alice Springs 1825-1999)
Britain asserted sovereignty over the area when the western boundary of New South Wales was extended to include what later became the Northern Territory.
John McDouall Stuart passed through an area to the west of the claim area. He noticed camps and tracks, and was followed and observed by Arrernte people.
South Australia annexes the area now known as the Northern Territory.
John Ross and the overland telegraph line survey party travelled around an area to the southeast of the claim area.
The overland telegraph line survey and construction parties entered the claimed area and renamed several features, including Heavitree Gap and Alice Springs waterhole.
The Alice Springs Telegraph Station build was completed. It employed Aboriginal people, and a large camp remained nearby.
Pastoralists lodged applications for leases which became Undoolya Station. Conflict between Aboriginal people and pastoralists in Central Australia over land and access to water led to many deaths in the following two decades – an estimated 1000 Aboriginal people were killed in this period.
The town of Stuart proclaimed and surveyed on the west bank of the Todd River, three kilometres south of the telegraph station. The town was later renamed Alice Springs.
The Northern Territory Aboriginals Act 1910 (South Australia) applied to all those defined as ‘Aboriginal’, including those of mixed descent. The act made provision for the establishment of reserves, to which those subject to the act could be removed, and ‘prohibited areas’. The Chief Protector became the legal guardian of all Aboriginal children. The act also regulated relationships between Aboriginal and non-Aboriginal people and conditions of employment.
The Australian Government assumed control of the Northern Territory.
The Aboriginals Ordinance 1911 (Commonwealth) incorporated the Northern Territory Aboriginals Act 1910 (South Australia) and gave the Chief Protector the power to take any Aboriginal person into custody.
Establishment of the Bungalow, within the town of Stuart.
The Aboriginals Ordinance 1918 (Commonwealth) replaced previous legislation. It also provided for declaration of institutions for Aboriginal children (including those of mixed descent) and for further regulation of employment. The ordinance made it an offence to give an Aboriginal person alcohol.
The area within a radius of five miles of the proposed railway line was declared a prohibited area for Aboriginal people, including those of mixed descent.
The Bungalow was moved to the small settlement of Jay Creek, 40 kilometres west of the town.
The railway line to Stuart from South Australia was completed.
Prohibited area amended to within a two-mile radius of the office of the Government Resident (located in the centre of the township).
The telegraph station closed and became the new home of the Bungalow. The former Telegraph Station site was gazetted as the Alice Springs Aboriginal Reserve.
The town of Stuart was renamed Alice Springs.
The Little Flower Mission was established in the Catholic Presbytery.
The Alice Springs Aboriginal Reserve was extended southwards to include the Catholic Mission, which relocated the same year to the north bank of Unthelke Ulpaye (Charles Creek).
The Jay Creek Aboriginal Reserve was gazetted. The prohibited area was extended to cover the whole town area.
Military personnel starts to flow into the town, making Alice Springs a major strategic and supply centre during World War II, particularly after the bombing of Darwin.
The Bungalow closed and the children were evacuated. The Alice Springs Aboriginal Reserve became a ‘native labour camp’.
The Catholic Mission moved to Arltunga, 110 kilometres east northeast of Alice Springs.
The prohibited area redefined as land within a five-mile radius of the Alice Springs post office but excluding the Alice Springs Aboriginal Reserve.
The Bungalow was re-established at the Alice Springs Aboriginal Reserve. Reserve also functioned as a living place for local, working and Aboriginal people ‘in transit’.
Aboriginal people of mixed descent in Alice Springs staged a strike, withdrawing their children from school in protest at having their lives regulated by the Aboriginals Ordinance. They are granted a general exemption.
The Welfare Ordinance 1953 (Commonwealth) no longer defined people of mixed descent as Aboriginal. However, almost all other NT Aboriginal people were defined as ‘wards’ and subjected to this new ordinance.
The Catholic Mission moved to the present site of Ltyentye Apurte (Santa Teresa), 90 kilometres southeast of Alice Springs.
The Welfare Ordinance came into operation with the publication of the Register of Wards.
The Bungalow closed and its occupants were relocated to the newly established Amoonguna, a government settlement 22 kilometres southeast of Alice Springs.
Aboriginal people became eligible to vote in federal, and hence NT, elections.
The repeal of the Welfare Ordinance meant the end of prohibited areas and restrictions on consumption of alcohol by Aboriginal people.
A resounding ‘yes’ in the federal referendum gave the Australian Government responsibility for Aboriginal affairs throughout Australia and allows the inclusion of Aboriginal people in future censuses.
Equal pay for Aboriginal men working in the pastoral industry is one outcome of the implementation of the judgement of the Commonwealth Conciliation and Arbitration Commission. A combination of factors, including equal pay, more fences, increasing road transport and mechanisation, led to a large decrease in the number of Aboriginal people employed and living on pastoral stations during the 1960s and 1970s.
Unthelke Ulpaye (Charles Creek) and Inarlenge (Little Sisters) became the first legally recognised town camps. This marked the beginning of the current legal situation of town campers, and the end of an unsuccessful 50 years of attempts by non-Aboriginal authorities to eradicate and/or regulate people camping in and around the town.
The second report of the Aboriginal Land Rights Commission (the Woodward Commission) recommended that Aboriginal people should be able to claim areas in towns, on the basis of need.
First Central Land Council meeting.
The Interim Land Commissioner Justice Ward hears the Alice Springs Urban Land Claim which included 13 town camps, in a combined claim for areas with permission of senior Arrernte elders. The hearing was not resumed after November 1975 due to the change of the Australian Government.
A thousand Aboriginal people marched in Alice Springs in support of Land Rights and land councils.
The Fraser government passed the Aboriginal Land Rights (Northern Territory) Act 1976. (Cwlth). Unlike the earlier Whitlam government bill, the act does not include land claims on the basis of need, or claims within town boundaries.
The Tangentyere Council was recognised as representing the interests of Aboriginal ‘town campers’ in Alice Springs.
Self-government was granted to the Northern Territory.
Ntyarlkarle Tyaneme, a sacred site registered under the Aboriginal Sacred Sites Act 1978 (Northern Territory), was partially destroyed by the NT Government.
Seven Years On: Report by Justice Toohey to the Minister for Aboriginal Affairs on the Aboriginal Land Rights (Northern Territory) Act 1976 and Related Matters draws attention to the situation of Arrernte people whose land is within the town of Alice Springs, and who have no access to land rights.
A joint tribunal of the Australian and NT governments reported that the significance of the sacred site called Werlatye Atherre makes the area unsuitable for a proposed recreation lake. This followed a long campaign including a protest camp by custodians and their supporters to protect the site.
The Mabo (No 2) decision of the High Court recognised native title.
A declaration under the federal Aboriginal and Torres Strait Islander Heritage Protection Act 1984 to protect sacred sites (Atniltye, Atnyere Arrkelthe, Urewe Aterle) near Junction Waterhole for 20 years prevented the construction of a proposed flood mitigation dam. Junction Waterhole is just north of the town boundary. Once again, it took a long struggle to protect these places.
The CLC lodged the Alice Springs Arrernte native title determination application with the National Native Title Tribunal.
The tribunal referred the application to the Federal Court.
The hearing of Alice Springs Arrernte native title determination application commenced.
Justice Olney finds that native title exists on most of the land claimed