Native title in Australia

Native title in Australia

Native title is the Australian version of the common law doctrine of aboriginal title.

Native title is "the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs".[1] The concept recognises in certain cases there was and is a continued beneficial legal interest in land held by local Indigenous Australians which survived the acquisition of radical title to the land by The Crown at the time of sovereignty. Native title can co-exist with non-Indigenous proprietary rights and in some cases different Indigenous groups can exercise their native title over the same land.

The National Native Title Tribunal (NNTT) is the body that mediates claims made by Aboriginal and Torres Strait Islander peoples. Native title determinations are made by the Federal Court of Australia. Appeals against these determinations can be made to a full sitting of the Federal Court and then to the High Court of Australia. The National Native Title Register (NNTR) is a register of approved determinations and is maintained by the NNTT.



Native title concerns the interaction of two systems of law:

  • The traditional laws and customs that regulated the lives of Aboriginal and Torres Strait Islanders prior to Australia's colonisation by the British ("customary Aboriginal law"). Although colonisation wrought social changes upon the Aborigines, customary Aboriginal law continues to regulate the lives of many Indigenous Australians.
  • The now dominant, English-derived legal system, which was brought to Australia with colonisation, which includes the common law and enacted laws ("Australian law").

Only Australian laws are enforced directly in Australian courts. Native title is not a concept that forms part of customary Aboriginal law – rather, it is the term adopted to describe the rights to land and waters possessed by Indigenous Australians under their customary laws that are recognised by the Australian legal system.

History of protest movement

1946 Aboriginal Stockmen's Strike

On 1 May 1946, an estimated 600 Aboriginal stockmen throughout the north of Western Australia refused to work until they had been guaranteed a minimum wage of thirty shillings a week. Some had previously been receiving food and clothing but no pay; others had been paid up to twelve shillings a week.

Though the strike was on the face of it one for better wages, it had a strong human rights and natural justice aspect, with the demand that Aboriginal workers be paid in cash and not in goods.

It was organised by Dooley Bin Bin with his friend Don McLeod acting as consultant. The organisation was a mammoth task, requiring communication between stockmen throughout northern Western Australia. The strike did not end until August 1949.

1963 – Yolngu Bark Petition

The Yolngu of northeast Arnhem Land had retained a very strong connection with their land, culture and Law (Madayin), due to the remoteness of Arnhem Land to white Australia.

In 1963, the Menzies government decided to exercise a part of their land for a bauxite mine, Yolngu at Yirrkala sent a petition on bark to the Australian House of Representatives protesting the excision.

The bark petition attracted national and international attention and now hangs in Parliament House, Canberra as a testament to the Yolngu role in the birth of the land rights movement.

1966 – Wave Hill Walk-Off

Three years later, in 1966, 200 Gurindji cattle workers and their families, led by Vincent Lingiari, staged a strike and walk off at Wave Hill Cattle Station, demanding equal wages and conditions to white stockmen.

At that time they were paid small amounts of money, or paid in kind. The nine-year strike developed into a successful claim for return of traditional Gurindji lands.

1973-4 – Woodward Inquiry

These cases led to the establishment of the Woodward Aboriginal Land Rights Commission, a Royal Commission from 1973–4 in the Northern Territory.

1975 – Gurindji handback

In 1975, Gough Whitlam handed back land to the Gurindji people.

The famous photograph, by Mervyn Bishop of Whitlam pouring sand into Vincent Lingiari's hand, has been etched onto the Australian psyche. [2]

Case law

1971 – Milirrpum

Meanwhile, the Yolngu realised their bark petition had not been taken seriously by the politicians in Canberra, and instead took their grievances to the Supreme Court of the Northern Territory in 1971, in the case of Milirrpum v Nabalco Pty Ltd (the "Gove land rights case").

The court ruled against the Yolngu, under the terra nullius principle. However, Justice Richard Blackburn did acknowledge the claimants' ritual and economic use of the land and that they had an established system of law (Madayin). In this way, this was the first significant legal case for Indigenous Land Rights in Australia.

1985 Gerhardy v Brown

Stated that the original inhabitants should be recognised as having a legal, as well as a just, claim to retain occupancy of their traditional land.

1988–1992 – Mabo

Only in 1992 was the assumption that Australia was terra nullius rejected by the High Court in the Mabo decision, which granted Murray Island in the Torres Strait to its Torres Strait Islander residents. The Court repudiated the notion of absolute sovereignty over Australia to the Crown at the moment of European settlement. The court held, rather, that Native Title existed without originating from the Crown. Native Title would remain in effect unless extinguished by a loss of connection to the land. Justice Gerard Brennan in this landmark decision stated:

However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. [3]

Thus although over some parts of Australia native title has been lost, in large areas of the nation's interior, native title could be recognised.

As Justice Brennan stated in Mabo (No. 2), "native title has its origin and is given its content by the traditional laws acknowledged by and the customs observed by the Indigenous inhabitants of a territory".

1996 – Wik

The Mabo decision created uncertainty, particularly for pastoralists who held pastoral leases. Pastoral leases:

  • are leases given by the Australian state governments;
  • are the subject of statutory regulation;
  • contain varying conditions;
  • give pastoralists rights to occupy Crown land for agricultural purposes in return for an annual fee;
  • cover approximately 44% of Australia's mainland, consisting predominantly of arid and semi-arid regions and tropical savannas;
  • are predominantly used for grazing livestock and agriculture.[4]

After the Mabo decision, there was concern that native title claims over pastoral leases would extinguish the pastoral leases. The Wik Decision in 1996 clarified the uncertainty. In that case, the High Court determined that pastoral leases that:

  • gave the leaseholder exclusive possession (that is, the right to use the land and to exclude others from the land) extinguished native title; and
  • did not give exclusive possession did not extinguish native title.

The decision found that native title could coexist with other land interests on pastoral leases, which cover some 40% of the Australian land mass.

That decision led to amendments to the Native Title Act (by the Native Title Amendment Act) in 1998 which streamlined the claims system and provided security of tenure to non-Indigenous holders of pastoral leases and other land title, where that land might potentially be claimed under the Native Title Act.

1998-2002 - Yorta Yorta

Yorta Yorta v Victoria was a native title claim by the Yorta Yorta indigenous people of north central Victoria, Australia which was dismissed by Justice Olney of the Federal Court of Australia in 1998. Appeals to the Full Bench of the Federal Court of Australia in 2001 and the High Court of Australia in 2002 were also dismissed.

The determination by Justice Olney in 1998 ruled that the ‘tide of history’ had ‘washed away’ any real acknowledgement of traditional laws and any real observance of traditional customs by the applicants.[5]

2001 – Yaramirr

2005 - Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagalk

The indigenous peoples of the Wimmera region of Western Victoria won recognition of their native title on 13 December 2005 after a ten year legal process commenced in 1995 when they filed an application for a determination of native title in respect of certain land and waters in Western Victoria. It was the first successful native title claim in south-eastern Australia and in Victoria, determined by Justice Ron Merkel involving Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagalk people.[6][7] In his reasons for judgement Justice Merkel explained the significance of his orders:

"The orders I propose to make are of special significance as they constitute the first recognition and protection of native title resulting in the ongoing enjoyment of native title in the State of Victoria and, it would appear, on the South-Eastern seaboard of Australia. These are areas in which the Aboriginal peoples suffered severe and extensive dispossession, degradation and devastation as a consequence of the establishment of British sovereignty over their lands and waters during the 19th century."[7]

2006 – Noongar

On 19th Sept 2006 the Federal Court brought down a judgment in favour of Noongar Native Title over the Perth metropolitan area, it is known as Bennell v State of Western Australia [2006] FCA 1243.

Justice Wilcox found that Native Title continues to exist within an area in and around Perth. This is the first judgment which recognised Native Title over a capital city and its surroundings. The claim area itself is part of a much larger area included in the "Single Noongar Claim", which covers the south-western corner of Western Australia. It was determined separately from the wider Single Noongar Claim by the Federal Court at the request of the Commonwealth and State Governments, in order to obtain certainty about whether Native Title exists in the Perth metropolitan area. An appeal was subsequently lodged and is was heard in April 2007 (decision currently pending). The remainder of the larger Single Noongar Claim remains outstanding and will hinge on the outcome of the appeal process.

Wilcox's judgment is noteworthy for several reasons. It highlights Perth's wealth of post-European settlement writings which provide an insight into Aboriginal life, including laws and customs, around the time of settlement in 1829 and also into the beginning of the last century. These documents enabled Wilcox to find that laws and customs governing land throughout the whole Single Noongar Claim (taking in Perth, and many other towns in the greater South West) were those of a single community. The claimants shared a language and had extensive interaction with others in the claim area.

Importantly, Justice Wilcox found the Noongar community had continued to exist despite the disruption resulting from mixed marriage and people being forced off their land and dispersed to other areas as a result of white settlement and later Government policies. If it survives the appeal, this is a very significant principle for other native title claims in Australia.

In April 2008 the Full Bench of the Federal Court upheld parts of the appeal by the Western Australian and Commonwealth governments against Justice Wilcox's judgment.


Aboriginal Lands Trust Act 1966 (SA)

The Act[8] established the South Australian Aboriginal Lands Trust.

Aboriginal Land Rights Act 1976 (NT)

As a result of the findings of the Woodward Aboriginal Land Rights Commission, the Fraser Government enacted the Aboriginal Land Rights Act in 1976, after its drafting by the Whitlam Labor Government in 1975.

The four Land Councils were established under this law. It established the basis upon which Aboriginal people in the Northern Territory could, for the first time, claim rights to land based on traditional occupation.

This Act was the first Australian law which allowed a claim of title if claimants could provide evidence of their traditional association with land.

Pitjantjatjara Lands Act 1981

The Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 of South Australia enabled land to be transferred to the Pitjantjatjara people, who had maintained a continuous connection with their land. However, the act provided no basis for claims by other groups.

Native Title Act 1993

The recognition of the legal concept of Native Title in Mabo in 1992 led its recognition by the legislative system a year later when the Keating government enacted the Native Title Act 1993. It attempted to clarify the legal position of landholders and the processes that must be followed for Native Title to be claimed, protected and recognised through the courts.

Native Title Amendment Act 1998

2007 Amendments to the Native Title Act

On 7 September 2005 Attorney-General, the Hon. Philip Ruddock MP, announced a package of coordinated measures to improve the performance of the native title system. Later in December 2006, the Attorney General introduced technical amendments to the NTA (1993) in the Native Title Amendment Bill 2006. These are aimed at making the native title process 'more efficient' and to speed up the determination of whether native title exists on the 580 claims that have been registered but not yet determined.

See also


External links

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