The Native Title Act: A Discussion

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The Native Title Act; A discussion
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Prior to 1992, the first nations people of Australia were considered, by law, as mere
trespassers on their own native land. They were relegated to the lands that they were allocated
after the invasion and occupation of the non-indigenous peoples of Australia. The tremendous
change in this state of affairs was spurred by the Mabo case. The principles developed in the
aforementioned case led to the enactment of legislation that enabled the aboriginals to lay
claim to land that belonged to the traditionally. The claim is referred to as a native title which
is defined as an acknowledgement by Australian law that the indigenous people have a right
to the land which belonged to their forbearers. There is an argument that the legal framework
set in place to recognise the Native Title in Australia have always prioritised on the rights of
the native Australians at the expense of the rights of the First Nations. This essay will discuss
the truth of the above statement by looking at First Nation scholars who have studied the
action of the Native Title legislation, some substantive and procedural aspects of the Native
Title legislation including the 2017 amendments to the Native Title Act.
The Native Title Act 1993 recognises the right of claim to land and water sources by
aboriginals and the people of Torres Strait Island on grounds that the land or water sources
belong to them traditionally.1 Prior to 1993, Australian legislation did not concede that the
indigenous peoples of Australia had a claim to land. Australia was then known as, terra
nullius, meaning that indigenous people had no right over their ancestral land.2 The change of
this state of affairs was marked by the 1992 Mabo v Queensland3 case that was decided at the
High Court of Australia. The court held that the people of Murray Island had a claim to land
since their rights to it had not been extinguished and the land was theirs traditionally. The
court asserted that to deny the natives title of their land was heavily discriminatory based on
race.4 A native laying claim to land may institute an application for determination of the title
in the Federal Court of Australia.5 The onus lies squarely on the claimants to adduce evidence
that would support their claim to acquire Native Title.6 Chapter 4 of the Native Title Act
highlights, Native Title claimants are charged with showing that, in truth, they possess
common community or personal rights and interests vis a vis land or waters in accordance
1 Native Title Act of 1993
2 Hannah McGlade, "The Mcglade Case: A Noongar History Of Land, Social Justice And Activism" (2017)
43(2) Australian Feminist Law Journal. 185-210
3 (1992) HCA 23,175 CLR 1
4 McGlade (n2) 185-210
5 Native Title Act of 1993
6 Australian Law Reform Commission, Connection To Country: Review Of The Native Title Act 1993 (Cth)
(Australian Law Reform Commission, 2015) <http://Australian Law Reform Commission>.

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with the traditional rules accepted and customs observed by them, and that, by those laws and
customs, they are linked with the land or waters claimed.7 Furthermore, Native Title rights
and interests must be acknowledgeable by the common law.8
Ethan Bowering9 cites Jenny Macklin’s lecture in 2008,
“Native title is a right which must be used. Used as a tool to bring about positive change. For
social purposes. For cultural purposes. And for economic purposes. It must be used as part of
our armoury to close the gap between Indigenous and non-Indigenous Australians”10
The Native Title Act provides for the protection of native land with regard to future acts of the
government that may affect the land mentioned above. Procedures are outlined on how to
deal with different types of government activity depending on the nature of the development
suggested. Claimants of native land are not vested with the power to veto but a platform is
created to enable amiable negotiations with the interested party. Indigenous owners of the
land have a right to be considered, to comment, to be consulted, to be involved in
deliberations and negotiations that relate to the land under contestation. Whence an
agreement is reached, indigenous land use agreements are entered voluntarily and are
registered. These Indigenous Land Use Agreements consist of concessions for the natives to
acquiesce their native title rights in exchange for monetary gain and employment
opportunities among other opportunities.11 If the parties to the negotiation reach an impasse
and lack the prospect of agreement on the terms of undertaking a future act, they may charge
the Native Title Tribunal for a resolution of the issue to be found. For an Indigenous Land
Use Agreement to be valid, all the registered native title claimants must sign, as was found in
the McGlade case.12
Impressive amounts of money have been directed to ensure the smooth working of the new
system.13It was believed that the ‘judicial revolution’ would foster a new and better
relationship between the non-indigenous and the first nations. Despite the creation of the
7 Native Title Act 1993.
8 Ibid (n7)
9 Ethan Bowering, "An Impediment To Development: The Need For Native Title Reform In Australia" (2012)
6 Perspective <https://trove.nla.gov.au/version/182041853>.
10 Jenny Macklin, "The Eddie Koiki Mabo Lecture; Beyond Mabo: Native Title And Closing The Gap"
(Lecture, James Cook University, 2008).
11 McGlade, (n2) 185-210
12 Mingli Wanjurri McGlade v Native Title Registrar (2017) FCAFC 10
13 Gary Foley, Andrew Schaap and Edwina Howell (Eds.), The Aboriginal Tent Embassy: Sovereignty, Black
Power, Land Rights And The State (Taylor and Francis 1st ed, 2013). 284