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Explainer
Native Title: What does it mean and why do we have it?
The Native Title Act was first created 30 years ago and marks a historic moment in Australian law that changed the face of our land rights system.
Published 30 December 2015 2:20pm
Updated 3 June 2022 9:48am
By Elliot Constable, Karina Marlow
Image: Quandamooka winning their Native Title claim as the traditional owners of Morton Island, Queensland (AAP Image/Dan Peled) NO ARCHIVING (AAP)
Why do we need native title?
Following the European settlement of Australia the land rights of Indigenous Australians and their relationship with their country were not recognised. The land was deemed terra nullius, Latin for ‘nobody’s land’, which dictates that land which is recognised as unclaimed or unoccupied can be acquired by occupation.
For the next two centuries the ancestral land of Australia’s Aboriginal and Torres Strait Islander peoples was taken and families were forcibly removed.
The impact of Mabo
There had been several unsuccessful cases that had discussed the concept of terra nullius before Eddie Mabo and other representatives from the Meriam people presented their claim against the Queensland Government.
Drawing on the traditional inheritance and land rights system found within the Mer (Murray Island) community in the Torres Strait, their legal claim for recognition of their land ownership began in 1982.
Following a decade of litigation, on June 3, 1992, the High Court of Australia of Eddie Mabo and the Meriam people, recognising that they had ‘native title’ over their lands.
“The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country.”
The Native Title Act is born
Following the High Court’s decision, the Keating Government passed the , which officially began 23 years ago to the day.
This was a breakthrough for Indigenous Australians, who for the first time since colonisation had the chance to argue the ownership of their traditional lands under common law.
It was an important stepping-stone towards acknowledging Aboriginal sovereignty and opening the door for further claims and compensation.
Paul Keating: Instrumental in passing the Native Title Act in 1993. Source: AAP
"[T]he common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands” (excerpt from the )
The impact of the Wik Decision
Unlike the Mabo case where Mer Island had a rather small national economic and political interest, the Wik people of Cape York attempted to gain land rights to two pieces of land in Queensland; Holroyd River Holding and The Mitchellton lease.
Both of these areas were under a pastoral lease, public lands that are managed by pastoralists for livestock and agricultural activities. Various governments and corporations were in favour of pastoralists' rights in the Cape York Peninsula. When challenged with the concept of pastoral leases, they argued that both, Native Title and pastoral leases could co-exist. The high profile case then turned its focus from Wik people pursuing their own Native Title, to pitting Native Title against pastoral leases.
On 23 December 1996, the High Court determined that pastoralists did not have exclusive rights to the land. The Wik and Thayorre people were then granted the right to Native Title in two areas of land.
The Native Title Act 1993 was amended, stating mining and pastoral leases could “co-exist” with Native Title.
Gladys Tybingoompa dances outside the High Court during the Wik Peoples v. Queensland case. (NMA - Andrew Campbell/Fairfax Syndication) Source: NMA - Andrew Campbell/Fairfax Syndication
Changes to the Native Title Act
Several amendments have been made to the original Native Title Act which have significantly modified the process of applying for native title claims.
The Howard government's , was a result of the 1996 Wik Decision, in which the High Court of Australia declared mining and pastoral leases could co-exist with native title. In 2007 the Federal Court was given to dismiss claims that did not progress toward native title determination.
The Act was again in 2009 by the Rudd government was considered a slight improvement to previous modifications. It provided more assistance to those making claims and loosened the rules of evidence. The strong oral traditions in Indigenous cultures practiced over the years made it difficult to have written proof of a continuous connection to land. Courtroom set-ups were changed to allow witnesses to give evidence orally and in a narrative form, as opposed to the previous question and answer format that many were not accustomed to.
The slow pace of change
As experienced by the Mabo v Queensland case, requests for native title often move slowly and can be dismissed after years of litigation. A as finally put to rest in June 2015, almost 20 years after it was lodged.
Those applying for native title must show evidence that they have a continuous connection to the land and have maintained their traditional customs. Communities have found that proving 'continuous connection to the land' can be close to impossible in light of the ongoing displacement to the land, the stolen generations and the loss of language and culture.
A involving a rejection of a native title claim was by the Yorta Yorta peoples of Victoria and their 1994 claim. In 1998 the Federal Court ruled against them, and in 2002 the High Court upheld the decision stating that the "tide of history had washed away" the connection to land and subsequent loss of culture. The claim was subsequently dismissed.
December 12, 2002: Spokesperson from the Yorta Yorta people addresses the media after the failed native title claim. Source: AAP
A snapshot of Native Title today
A Native Title Determination is a court or other official body concluding whether Native Titles does or does not exist, or exist in part (not the full area of land being claimed).
According to the , the 2022 statistics for the existence of Native Title in Australia includes:
555 Registered Native Title Determinations, of which:
441 were by consent – meaning a court or other official body negotiated an agreement under the Native Title Act. 60 of these were unopposed, and not contested by another party.
55 were litigated — meaning it had to go to trial.
