Native title
Encyclopedia
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". 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.
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.
s 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.
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.
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.
from 1973–4 in the Northern Territory
.
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.
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.
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:
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".
created uncertainty, particularly for pastoralists who held pastoral leases. Pastoral leases:
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:
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 lease
s and other land title, where that land might potentially be claimed under the Native Title Act.
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.
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. In his reasons for judgement Justice Merkel explained the significance of his orders:
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.
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.
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.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
doctrine of aboriginal title
Aboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
.
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". The concept recognises in certain cases there was and is a continued beneficial legal interest in land held by local Indigenous Australians
Indigenous Australians
Indigenous Australians are the original inhabitants of the Australian continent and nearby islands. The Aboriginal Indigenous Australians migrated from the Indian continent around 75,000 to 100,000 years ago....
which survived the acquisition of radical title to the land by The Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
at the time of sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
. 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
National Native Title Tribunal
The National Native Title Tribunal is an independent body that assists people to reach timely and effective outcomes for disputes about native title in Australia....
(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
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
. Appeals against these determinations can be made to a full sitting of the Federal Court and then to the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
. The National Native Title Register (NNTR) is a register
Land registration
Land registration generally describes systems by which matters concerning ownership, possession or other rights in land can be recorded to provide evidence of title, facilitate transactions and to prevent unlawful disposal...
of approved determinations and is maintained by the NNTT.
Background
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 lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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.
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 shillingShilling
The shilling is a unit of currency used in some current and former British Commonwealth countries. The word shilling comes from scilling, an accounting term that dates back to Anglo-Saxon times where it was deemed to be the value of a cow in Kent or a sheep elsewhere. The word is thought to derive...
s 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 YolnguYolngu
The Yolngu or Yolŋu are an Indigenous Australian people inhabiting north-eastern Arnhem Land in the Northern Territory of Australia. Yolngu means “person” in the Yolŋu languages.-Yolŋu law:...
of northeast Arnhem Land
Arnhem Land
The Arnhem Land Region is one of the five regions of the Northern Territory of Australia. It is located in the north-eastern corner of the territory and is around 500 km from the territory capital Darwin. The region has an area of 97,000 km² which also covers the area of Kakadu National...
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
Robert Menzies
Sir Robert Gordon Menzies, , Australian politician, was the 12th and longest-serving Prime Minister of Australia....
government decided to exercise a part of their land for a bauxite
Bauxite
Bauxite is an aluminium ore and is the main source of aluminium. This form of rock consists mostly of the minerals gibbsite Al3, boehmite γ-AlO, and diaspore α-AlO, in a mixture with the two iron oxides goethite and hematite, the clay mineral kaolinite, and small amounts of anatase TiO2...
mine, Yolngu at Yirrkala sent a petition on bark
Yirrkala bark petitions
The Yirrkala bark petitions 1963 are historic Australian documents that were the first traditional documents prepared by Indigenous Australians that were recognised by the Australian Parliament, and are thus the first documentary recognition of Indigenous people in Australian law.Wali Wunungmurra,...
to the Australian House of Representatives
Australian House of Representatives
The House of Representatives is one of the two houses of the Parliament of Australia; it is the lower house; the upper house is the Senate. Members of Parliament serve for terms of approximately three years....
protesting the excision.
The bark petition attracted national and international attention and now hangs in Parliament House, Canberra
Parliament House, Canberra
Parliament House is the meeting facility of the Parliament of Australia located in Canberra, the capital of Australia. The building was designed by Mitchell/Giurgola Architects and opened on 1988 by Elizabeth II, Queen of Australia...
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 GurindjiGurindji people
Gurindji are a group of Indigenous Australians living in northern Australia, 460 km southwest of Katherine in the Northern Territory's Victoria River region....
cattle workers and their families, led by Vincent Lingiari
Vincent Lingiari
Vincent Lingiarri, AM , was an Aboriginal rights activist who was appointed as a Member of the Order of Australia for his services to the Aboriginal people. Lingiarri was a member of the Gurindji people. In Vincent's earlier life he worked as a stockman at Wave Hill Cattle Station. He also played...
, staged a strike and walk off
The Gurindji Strike
The Gurindji Strike refers to the walk-off and strike by 200 Gurindji stockmen, house servants and their families in August 1966 at Wave Hill cattle station in Australia's Northern Territory....
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 CommissionRoyal Commission
In Commonwealth realms and other monarchies a Royal Commission is a major ad-hoc formal public inquiry into a defined issue. They have been held in various countries such as the United Kingdom, Australia, Canada, New Zealand, and Saudi Arabia...
from 1973–4 in the Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
.
1975 – Gurindji handback
In 1975, Gough WhitlamGough Whitlam
Edward Gough Whitlam, AC, QC , known as Gough Whitlam , served as the 21st Prime Minister of Australia. Whitlam led the Australian Labor Party to power at the 1972 election and retained government at the 1974 election, before being dismissed by Governor-General Sir John Kerr at the climax of the...
handed back land to the Gurindji people
Gurindji people
Gurindji are a group of Indigenous Australians living in northern Australia, 460 km southwest of Katherine in the Northern Territory's Victoria River region....
.
The famous photograph, by Mervyn Bishop
Mervyn Bishop
Mervyn Bishop is an Australian news and documentary photographer. Joining the Sydney Morning Herald as a cadet in 1962 or 1963, he was the first Aboriginal Australian to work on a metropolitan daily newspaper and one of the first Aboriginal Australians to become a professional photographer...
of Whitlam pouring sand into Vincent Lingiari
Vincent Lingiari
Vincent Lingiarri, AM , was an Aboriginal rights activist who was appointed as a Member of the Order of Australia for his services to the Aboriginal people. Lingiarri was a member of the Gurindji people. In Vincent's earlier life he worked as a stockman at Wave Hill Cattle Station. He also played...
's hand, has been etched onto the Australian psyche.
1971 – Milirrpum
Meanwhile, the YolnguYolngu
The Yolngu or Yolŋu are an Indigenous Australian people inhabiting north-eastern Arnhem Land in the Northern Territory of Australia. Yolngu means “person” in the Yolŋu languages.-Yolŋu law:...
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
Supreme Court of the Northern Territory
The Supreme Court of the Northern Territory is the superior court for the Australian Territory of the Northern Territory. It has unlimited jurisdiction within the territory in civil matters, and hears the most serious criminal matters...
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
Terra nullius
Terra nullius is a Latin expression deriving from Roman law meaning "land belonging to no one" , which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished...
principle. However, Justice Richard Blackburn
Richard Blackburn
Sir Richard Arthur Blackburn OBE was a judge, prominent legal academic and former military officer in Australia. He became a judge of three separate courts in Australia, and eventually became chief justice of the Australian Capital Territory. In the 1970s he decided one of Australia's earliest...
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 CourtHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
in the Mabo
Mabo
Mabo may refer to:*Mabo, Togo, a village in Togo*Eddie Mabo, a man from the Torres Strait Islands who fought a court case, attempting to assert a legal title over his tribe's traditional lands...
decision, which granted Murray Island in the Torres Strait
Torres Strait
The Torres Strait is a body of water which lies between Australia and the Melanesian island of New Guinea. It is approximately wide at its narrowest extent. To the south is Cape York Peninsula, the northernmost continental extremity of the Australian state of Queensland...
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
Gerard Brennan
Sir Francis Gerard Brennan, AC, KBE, QC , is an Australian lawyer, judge and 10th Chief Justice of Australia. He is father to Jesuit priest and lawyer Frank 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.
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 decisionMabo
Mabo may refer to:*Mabo, Togo, a village in Togo*Eddie Mabo, a man from the Torres Strait Islands who fought a court case, attempting to assert a legal title over his tribe's traditional lands...
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.
After the Mabo decision
Mabo
Mabo may refer to:*Mabo, Togo, a village in Togo*Eddie Mabo, a man from the Torres Strait Islands who fought a court case, attempting to assert a legal title over his tribe's traditional lands...
, 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
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
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
Native Title Amendment Act 1998
The Native Title Amendment Act 1998 , also commonly referred to as the "10 Point Plan" is an Australian law created by the John Howard led Liberal government in response to the 1996 Wik Decision by the High Court of Australia...
) in 1998 which streamlined the claims system and provided security of tenure to non-Indigenous holders of pastoral lease
Pastoral lease
A pastoral lease is Crown land that government allows to be leased, generally for the purposes of farming.-Australia:Pastoral leases exist in both Australian commonwealth law and state jurisdictions....
s 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 peopleIndigenous Australians
Indigenous Australians are the original inhabitants of the Australian continent and nearby islands. The Aboriginal Indigenous Australians migrated from the Indian continent around 75,000 to 100,000 years ago....
of north central Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
, Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
which was dismissed by Justice Olney of the Federal Court of Australia
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
in 1998. Appeals to the Full Bench of the Federal Court of Australia in 2001 and the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
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.
2005 - Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagalk
The indigenous peoples of the WimmeraWimmera
The Wimmera is a region in the west of the Australian state of Victoria.It covers the dryland farming area south of the range of Mallee scrub, east of the South Australia border and north of the Great Dividing Range...
region of Western Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
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
Jardwadjali
The Jardwadjali people are Indigenous Australians who occupy the lands in the upper Wimmera River watershed east to Gariwerd and west to Lake Bringalbert. The towns of Horsham, Cavendish, Coleraine, Asply, Minyip and Donald are within their territory...
, Wergaia
Wergaia
Wergaia is an Indigenous Australian language group in the Wimmera region of north-Western Victoria. 20 clans made up the Wergaia language group which consisted of four distinct dialects: Wudjubalug/Wotjobaluk; Djadjala/Djadjali; Buibadjali; Biwadjali...
and Jupagalk people. 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."
2006 – Noongar
On 19th Sept 2006 the Federal Court brought down a judgment in favour of Noongar Native Title over the PerthPerth, Western Australia
Perth is the capital and largest city of the Australian state of Western Australia and the fourth most populous city in Australia. The Perth metropolitan area has an estimated population of almost 1,700,000....
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 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 FraserMalcolm Fraser
John Malcolm Fraser AC, CH, GCL, PC is a former Australian Liberal Party politician who was the 22nd Prime Minister of Australia. He came to power in the 1975 election following the dismissal of the Whitlam Labor government, in which he played a key role...
Government enacted the Aboriginal Land Rights Act in 1976, after its drafting by the Whitlam
Gough Whitlam
Edward Gough Whitlam, AC, QC , known as Gough Whitlam , served as the 21st Prime Minister of Australia. Whitlam led the Australian Labor Party to power at the 1972 election and retained government at the 1974 election, before being dismissed by Governor-General Sir John Kerr at the climax of the...
Labor
Australian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
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 KeatingPaul Keating
Paul John Keating was the 24th Prime Minister of Australia, serving from 1991 to 1996. Keating was elected as the federal Labor member for Blaxland in 1969 and came to prominence as the reformist treasurer of the Hawke Labor government, which came to power at the 1983 election...
government enacted the Native Title Act 1993
Native Title Act 1993
The Native Title Act of 1993 provides for determinations of native title in Australia. The Act was passed by the Keating Labor Government in response to the High Court's decision in Mabo v Queensland...
. 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.
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
- Central Land CouncilCentral Land CouncilThe Central Land Council is an Indigenous Land Council that represents the indigenous people of the southern half of the Northern Territory of Australia, predominantly in land issues...
and Northern Land CouncilNorthern Land CouncilThe Northern Land Council is in the Top End of the Northern Territory of Australia. It has its origins in the struggle of Australian Aboriginal people for rights to fair wages and land. This included the strike and walk off by the Gurindji people at Wave Hill, cattle station in 1966. The head...
of the Northern TerritoryNorthern TerritoryThe Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions... - Estates in land
- Indian reservationIndian reservationAn American Indian reservation is an area of land managed by a Native American tribe under the United States Department of the Interior's Bureau of Indian Affairs...
, land which is managed by a Native American tribe under the United States Department of the InteriorUnited States Department of the InteriorThe United States Department of the Interior is the United States federal executive department of the U.S. government responsible for the management and conservation of most federal land and natural resources, and the administration of programs relating to Native Americans, Alaska Natives, Native...
's Bureau of Indian AffairsBureau of Indian AffairsThe Bureau of Indian Affairs is an agency of the federal government of the United States within the US Department of the Interior. It is responsible for the administration and management of of land held in trust by the United States for Native Americans in the United States, Native American...
. - List of native title claims
- Native Title Prescribed Body CorporateNative Title Prescribed Body CorporateA Native Title Prescribed Bodies Corporate is an Aboriginal and Torres Strait Islander Corporation especially formed in accordance with Australian native title law to hold the native title of groups of Aboriginal and Torres Strait Islanders whom the Federal Court determines as possessing...
- Oren LyonsOren LyonsOren R. Lyons, Jr. is a Native American Faithkeeper of the turtle clan of the Onondaga and Seneca Nations of the Iroquois Confederacy. Once a college lacrosse player, Lyons is now a recognized advocate of indigenous rights....
- Title (property)Title (property)Title is a legal term for a bundle of rights in a piece of property in which a party may own either a legal interest or an equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document that serves as evidence of ownership...
- Welcome to Country and Acknowledgement of Country
External links
- Native Title Amendment Bill 2006
- Native Title Act 1993 at ComLawComLawComLaw is an Australian government web site run by the Attorney-General's Department providing online copies of Commonwealth legislation and related documents. The website was redesigned and re-released early in 2011....
- Native Title Resource Guide at Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS)
- National Native Title Tribunal
- Federal Court of Australia Native Title Infobase, The Native Title Infobase includes selected material commencing from 1839 to the present day and covers all aspects of native title. It gives reference to Australian material including journal articles, book chapters, books, conference papers, reports and press clippings. It also includes relevant material from other jurisdictions such as New Zealand, United States, Canada, Africa and Asia.
- Yamatji Marlpa Aboriginal Corporation, the Native Title Representative Body incorporating the Yamatji Land and Sea Council and the Pilbara Native Title Service
- Information about native title determinations is available
- Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Reports, 1994–2009 http://www.humanrights.gov.au/social_justice/nt_report/index.html
- Department of the Parliamentary Library (2003) The Mabo debate: a chronology Accessed 17 February 2009