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

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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.