Effectiveness of Section 223(1) in Securing and Protecting Recognition of Native Titles

This article discusses the effectiveness of section 223(1) in securing and protecting the recognition of Native Titles in Australia. It argues that the burden of proof should not be on Indigenous people and that the process of determination should be automatic. The article also highlights the barriers that Indigenous people face in proving their customary laws and connection to the land. It concludes that section 223 should be amended to conform to the United Nations Declaration on the Rights of Indigenous Peoples.

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Name of Student
Institution
Instructor
Date
Submission to Australian Law Reform Commission on the effectiveness of section 223(1) in
securing and protecting the recognition of Native Titles

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The Native Titles Act at section 223(1) on the protection and recognition of Native Titles
provides that recognition of Titles is obtained through the legal system. The Native Titles Act
provides that Indigenous people have to make an application to the federal court for a
determination of the existence of a Native Title and that an individual holds title which gives rise
to specific benefits and interests in the said land (Strelein, 2009, p. 21).
This process of determination of a right to land under the Native Titles Act is not
effective since it is not what is envisaged under the United Nations Declaration on the Rights of
Indigenous Peoples. These rights should be automatic and the process of determination through
the judicial system is not effective and should be amended to make such rights automatic and not
subject to any determination.
Section 223(1) of the Natives Titles Act gives the Indigenous people the burden of proof
of the existence of a native title. This should not be the case. In line with the United Nations
Declaration on the Rights of Indigenous Peoples, these are rights that should be automatic and
guaranteed by the government. The titles should be issued by the government to ensure sanctity
of the said titles and to guarantee inalienability. Shifting the burden to Indigenous peoples is not
effective in recognition of the rights to own property by the Indigenous people (Sutton, 2004, p.
30).
The process of recognition of interests and rights under section 223 of the Native Titles
Act is not neutral. It is based on assumptions which have the effect of transforming and
diminishing the rights of Indigenous people instead of providing for their enjoyment. This makes
section 223 ineffective when it comes to recognition of the rights of Indigenous people.

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Section 223(1) (a) requires that the rights both interests and rights have to be possessed
under traditional laws that are acknowledged and customs observed by such persons. This would
require proof of customary laws which is likely to act as a barrier to the Indigenous people and is
likely to affect the realization of their rights as provided by the United Nations Declaration on
the Rights of Indigenous Peoples.
The requirement under section 223(1) (b) that persons seeking recognition of their rights
to land ownership need to have a connection to the land and maintenance of cultural knowledge
is not progressive and should be abolished.
In conclusion therefore, section 223 of the Native Titles Act is not effective in
guaranteeing the rights of Indigenous People. It places a lot of burden of proof on Indigenous
applicants which nonetheless does not guarantee the rights and interests in land. This section
should therefore be amended so that Australia can conform to the requirements of United
Nations Declaration on the Rights of Indigenous Peoples including the rights to have recognition
of a system to keep their culture continuously developing and vital as well as to recognise their
spiritual connection with their land.

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References
Sutton, P., 2004. Native title in Australia: An ethnographic perspective. Cambridge University
Press
Strelein, L., 2009. Compromised jurisprudence: Native title cases since Mabo. Aboriginal
Studies Press