The Native Title Act Research Paper 2022

RUNNING HEAD: Native Title Act 0
THE NATIVE TITLE ACT

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Table of Contents
Introduction...............................................................................................................................2
Tracing Lineage.......................................................................................................................2
Native Title Act.........................................................................................................................3
Native Rights........................................................................................................................3
Claiming Native Title...........................................................................................................4
Subsequent Development......................................................................................................5
Conclusion................................................................................................................................6
Bibliography..............................................................................................................................7
Article/Book/Journal............................................................................................................7
Legislatures..........................................................................................................................7
Cases....................................................................................................................................7
Others....................................................................................................................................8
Appendix...................................................................................................................................9

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Introduction
The Native Title Act 1993 came to be introduced after Eddie Mabo submitted a claim
before the high court to recognize his right as an occupant of the land and to grant
his and his tribe a right to live and occupy the land, water as they have been the
original occupants of the land even before the British Colonisation. The Court
granted Mabo the sought relief and also recognized his right. Soon after the
Queensland government came up with the Native Title Act (also referred to as NTA)
and gave a specific term to the rights of aboriginals as native title rights.
This paper examines the rights before NTA came into being and what led to the
passing of NTA. It also studies the act and the rights given by the act to the
aboriginals and the topics covered by NTA to protect their native title rights. The
paper traces the development of the act through judicial litigation and whether the
judiciary has helped in strengthening their rights. The paper also discusses the
contribution of NTA in helping in recognizing the rights of the aboriginals in Australia
and whether the act is still beneficial to the people.
Tracing Lineage
The land rights of aboriginal people living in Northern territory came to be protected
by law passed by Federal Parliament of Australia in 1976 but it excluded indigenous
people, and there were other state and territories that were not covered. 1 Eddie
Mabo in a complaint to High Court of Queensland in 1982 challenged the Torres
Strait Islands Coastal Island Act as it was contradictory to the Commonwealth Racial
Discrimination Act as it did not recognize the law and system of ownership that
prevailed with the indigenous people even before British Settlement and that terra
nullius which implies ‘a land that belongs to no one’ cannot be applied to the land.
The case was eventually decided in June 1992 where the Court ruled out that the
law of terra nullius was inapplicable to the land and recognized that Meriam people
had traditional rights in Murray Islands.2 The High Court also invalidated the
Queensland Coast Islands Declaratory Act 1985 by holding that it was discriminatory
1 Central Law Council ‘The history of Native Title Act’ (accessed 16 April 2020)
<https://www.clc.org.au/articles/info/the-history-of-the-native-title/>.
2 Mabo v. Queensland (1992) HCA 23.

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with the Meriam people as it extinguished their rights and interests in their own land.
The court also held that the indigenous people had title on land even prior to the rule
of British Colony and thus recognized those rights unless they were legally
extinguished.3
Native Title Act
The Mabo decision was the stepping stone that led to the formation of Native Title
Act in 1993 which recognizes the traditional law and customs giving them rights to
use land for traditional purposes and creates interests of Aboriginal people and
Torres Strait Islander in certain land. The introduction of Native Title Act marked a
progressive shift in the relationship between Australia and its aboriginal people. The
act protects native rights and interests of aboriginal people that they have with land
and water. Therefore it also is often regarded as ‘bundle of rights’. Thus specific
rights depending on traditional laws came to be recognized like right to camp, use
water, perform traditional ceremonies etc. although these rights depend on cases to
case basis. The nature of rights provided under the Native Tilte Act is of non-
exclusive possession which means that the native people are allowed to use land as
per their choice but they have no exclusive possession over it and no right to control
access of an area. There are certain rights that grant exclusive possession that are
called freehold possession whereby it gives right to the owner to manage and control
the express use of land in conformity with the law of the land.4 Section 225 of the
NTA provides for eth indigenous people to describe whether the extent of right
enjoyed by them is of exclusive or non-exclusive nature.5
Native Rights
The NTA recognizes the traditional and customary rights of aboriginals and Torres
Strait Islanders over land and water. These rights include Camp and live on land
Maintain and protect sites Erect shelters and Structures, Use the land for hunting,
Compensation and sharing profits for any development on land as per section 223.
Section 211 sets out right to access and take water and authorizes the aboriginals to
hunt, fish conduct a spiritual or cultural activity without requiring a license to perform
3 Butt, Peter. ‘Mabo: What did the High Court actually decide? (1994)’, Australian Legal Practice, Vol
4, No 1, January.
4 Native Title Act 1993 s.23.
5 Ibid.

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so, these rights cannot be put to commercial use.6 For using water for commercial
purposes the aboriginals have apply to the Management of the State Water regime.7
Claiming Native Title
An aboriginal native can claim title over his land only if he proves that he had a
continuous and unbroken connection with Australia since colonization. In this
process an aboriginal native submits an application for determination of his native
right to the federal court, the court further refers the application to National Native
Title tribunal which examines the application and then decides whether the person
belong to this land and whether had an unbroken connection.
A native title claim extends to areas which are:
 Parks or Public reserves,
 Land held by Government agencies,
 Beaches,
 Vacant or unallocated land
 Lands that are not privately held like oceans, reefs, creeks, rivers etc( these
can only be non-exclusive title rights).
But native title claim cannot be made with relation to oils, minerals, petroleum or gas
as its difficult to grant rights in these sphere to a particular tribe.
The High Court in Wik People v Queensland was faced with a question as to
whether the pastoral leases that were granted to the aboriginal between 1910-1974
formed part of a native title with exclusive possession.8 The judges held that pastoral
lease did not fall under the native rights for exclusive possession and the court held
that the NTA left ambiguity about native title rights and their co-existence with other
rights. The freehold test which proposed that native title rights could be given no
regard while carrying activities was held to be inappropriate by the court and thus
this called for an amendment in the NTA which came to be called as the ’10 point
plan”.9
6 Willis on behalf of the Pilki People v State of Western Australia (No 2) (2014) FCA 1293
7 Rrumburriya Borroloola Claim Group v Northern Territory (2016) FCA 776.
8 (1996) 187 CLR 1.
9 The Native Title Amendment Act 1998 (Cth).

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Subsequent Development
The coming of Native Title Act into force opened the floodgate of legal battles in
Australia, but the Courts did not comprehensively define native title. In Western
Australia v. Ward10 the High Court confined the definition of native title by holding
that it is related to cultural knowledge. Native Title Act has helped hugely in
determining the native title rights but still there has been a dispute regarding its exact
definition. 11 In yet another case the federal court ruled that to recognize whether a
particular group can claim rights under NTA is to not to go on their distinctiveness
but whether they constituted a single society in the terms of traditions and whether
they were connected to their land and laid out many pointers to be considered.12 The
identification of rights and interests of a claimant group in a particular fraction of
society depends on their relationship with the wider society and the laws and
customs held by that society.13
NTA also provided for compensation for any loss or impairment caused by the
government towards the aboriginals native title having the effect of extinguishment of
their rights or title or where the government prevented the holders of native title
rights enjoyment of their rights.14 But the Act does not mention the details about the
compensation to be paid so it depends on case to case and courts devise methods
to calculate the compensation. Griffiths v. Northern Territory of Australia15 is the first
successful case where a favorable compensation was received by the applicants
and where the court set out the rules to calculate the compensation16.
In Yorta Yorta v Victoria17 the Federal court ruled that the people belonging to yorta
yorta group were not aboriginal and refused to give regard to the traditional laws and
customs sought by the applicants. The appeal in the said case was also dismissed.
This failed attempt to gain title claim led to an agreement between the Yorta Yorta
people and Victorian Government wherein they were given a say in the management
10 (2002) 191 ALR 1.
11 Wilson v Anderson (2002) 190 ALR 313
12 Sampi v Western Australia (2005) FCA 777.
13 Redmond, A. Identifying the Relevant Level of a Society in Australian Native Title Claims (2011). .
Anthropological Forum, 305
14 Native Title Act 1993 s.51.
15 (2016) FCA 900.
16 Michael Cawthorn, ‘Native Title, Rights and Interests’ (accessed 17 April
2020) ,https://www.nativetitle.org.au/learn/native-title-and-pbcs/native-title-rights-and-interests>.
17 Yorta Yorta Aboriginal Community v Victoria[1998] FCA 1606

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of the land, rivers, lakes in North-Central Victoria. To study about the developments
under the NTS refer to Figure 1.
Thus it is seen that enforcing native title and rights seems an unrealistic idea unless
the aboriginals prefer litigation and it becomes a costly affair for thr people as not all
the litigations result in a favorable decision. There are certain difficulties faced by the
aboriginals in seeking recognition of their rights as there is no specific definition of
native title and all traditional owners cannot be recognized at once, though
researches are being conducted towards making it possible. The other problem that
the aboriginals face is absence of a statutory body to negotiate with them as state
Governments do not generally opt for strikinig a negotiation with them.
Conclusion
The native Title Act and its amendments should be seen as adding a feather in cap
for the Torres Strait Islander community and the aboriginals. Even after 25 years the
communities are still benefitting from the act. they might in certain cases fail to get
the desired relief from the court about recognizing them as a part of aboriginal
group and for claiming their native rights but the people and government give them
regard and also provide them say in any constructional activity to be carried on at
their land.
Though NTA promised native title and rights to the aboriginals and it has been
possible because of this act that many people were granted the recognition but even
then the aboriginals face lots of issues for e.g it becomes a tedious task to get a
particular recognized as an aboriginal since the judiciary has still not come up with a
clear definition. The compensation provided to the aboriginals also heavily depends
on case to case basis. Thus there lies a lot of ambiguity in the application of the Act
which makes it difficult for the aboriginals to get a relief and enjoy their native rights.
But even so it would not be apt to say that the rights have extinguished, there are
loopholes but it still is effective and has not rendered redundant.

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Bibliography
Article/Book/Journal
Butt, Peter. ‘Mabo: What did the High Court actually decide? (1994)’, Australian
Legal Practice, Vol 4, No 1, January.
A Redmond, Identifying the Relevant Level of a Society in Australian Native Title
Claims (2011) Anthropological Forum, 305.
Legislatures
Commonwealth Racial Discrimination Act 1975.
Native Title Act 1993.
The Native Title Amendment Act 1998 (Cth).
Queensland Coast Islands Declaratory Act 1985.
Cases
Mabo v. Queensland (1992) HCA 23.
Rrumburriya Borroloola Claim Group v Northern Territory (2016) FCA 776.
Sampi v Western Australia (2005) FCA 777.
Wik People v Queensland (1996) 187 CLR 1.
Wilson v Anderson (2002) 190 ALR 313
Willis on behalf of the Pilki People v State of Western Australia (No 2) (2014) FCA
1293.

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Yorta Yorta Aboriginal Community v Victoria[1998] FCA 1606
Others
Central Law Council ‘The history of Native Title Act’ (accessed 16 April 2020)
<https://www.clc.org.au/articles/info/the-history-of-the-native-title/>
Michael Cawthorn, ‘Native Title, Rights and Interests’ (accessed 17 April 2020)
https://www.nativetitle.org.au/learn/native-title-and-pbcs/native-title-rights-and-
interests>

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Appendix
Figure 1: Showing development in Native Tribal Act
Source: Michael Cawthorn, ‘Native Title, Rights and Interests’ (accessed 17 April
2020) ,https://www.nativetitle.org.au/learn/native-title-and-pbcs/native-title-rights-
and-interests>