Native Title: Land Rights of Aboriginal People in Australia

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Native Title – The Land
Right Of Aboriginal
People
An Essay
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NATIVE TITLE – THE LAND RIGHT OF ABORIGINAL PEOPLE
Land rights are a critical and necessary part of the human rights of a person and usually
a part of a countries land laws. It is the social and legal basis of the existence of a
society and it involves the recognition of their right as an individual or as groups to own
land. The Native Title is land rights of native Australian populace or the Aboriginal
people and it is described in the Australian law as,
“the recognition by Australian law that Indigenous people have rights and interests to
their land that come from their traditional laws and customs.” (Australian Law Reform
Commission, 2015).
Native Title- The Need and Origin
Figure 1: The Native Title Reforms timeline (Cawthorn, 2019)
Till the year 1970, Australia has not seen litigation involving the issue of Aboriginal
land title. In the year 1971, the Supreme Court of the Northern Territory decided against
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the land rights of the Aboriginal people and favoured the doctrine of “terra nullius”
which is a Latin word meaning nobody’s land (Sanders, 2018). This laid the
groundwork of the denial of the Aboriginal Peoples basic Human Right of owning land
by the court declaration of the land being devoid of ownership at the time of British
Settlement.
In 1992 in a historic decision recognising the Aboriginal Peoples land right, the High
court overruled the confirmation of "terra nullius”. In the case of Mabo v Queensland
(No 2), the high court decided in favour of the Merian People as the native title holders
by establishing that the Native Title’s origin is not dependent on the crown and it
remains till the time natives lose their connection to the land in question (Sanders,
2018). The high court justice Gerard Bernnan observed,” native title has its origin and is
given its content by the traditional laws acknowledged by and the customs observed by
the Aboriginal inhabitants of a territory" (Sanders, 2018).
This historic decision formed the basis of the Native Title Act 1993. In the year 1993,
the Australian Federal executive government led by Paul Keating formally enacted the
law known as the Native Title Act 1993 (Short, 2016). Its area of focus was the legal
positions and statuses of landholders. It also described the processes for claiming the
Native Lands, its protection and recognition. The Native Title Act 1993 also created the
National Native Title Tribunal (NNTT). The NNTT works towards the protection and
advancement of Indigenous Australians and functions as an independent body under the
framework of the Native Title Act 1993 (Short, 2016).
Amendments and the Way Forward
The Native Title Act 1993 was amended in the years 1998, 2007 and 2009 and is known
as the Native Title Amendment Act 1998, Native Title Amendment Act 2003, and
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Native Title Amendment Act 2009 respectively (Australian Law Reform Commission,
2015). The 1998 amendment enacted certain constraints on the Native Title claims in
the context of pastoral leases. The John Howard government was responsible for this
amendment and the introduction of the 10 point plan that established certain aspects of
the Native Claim Act 1993. It established the absolute authority of the NNTT in matters
pertaining native Title claims along with the provision od f deciding to grant access
instead of native title, the authority of the government overwriting the Native Title in
cases of national security issue over the crown lands. It also exempted land involved in
providing public utilities (Australian Law Reform Commission, 2015). It allowed the
coexistence of Native Title along with pastoral and mining leases while handling
permission to the government in the maintenance activates related to the land in
question, establishment of a compulsory registration process during the presentation of
the claim, introduction of time limits for the claim process, and elimination of the
claiming process in regard to urban areas.
The 2007 and 2009 amendments focused on streamlining the native claims process
while making it fast and efficient and determination of the aspects of mediation in such
claims. The 2007 amendment was again carried out by the Howard government; it was a
bundle of two laws that introduced technical and streamlining measure within the
legislative framework (Australian Law Reform Commission, 2015). The 2009
amendment was the product of the Kevin Rudd government and primarily considered
the mediation situation and left the onus on the court. The biggest change in the Native
Title Act 1993 was brought about by the 1998 amendment and subsequent amendments
of 2007 and 2009 and the more recent 2017 were comparatively minor amendments that
did not alter the basic structure of the legislation.
The Native Title Act - Entitlements
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The Native title is defined by the court as a bundle of rights and it seems to be an apt
comparison. The section 223 of Native Title act recognises the traditional laws and
customs of the Aboriginal people that include rights like maintenance and protection of
the sites, monetary benefit to natives through monetary sharing in a land development
venture, the use of land for the purpose of ceremony and hunting, having legal authority
to participate in land development or management, and camping and living on their land
(Bauman and Lauder, 2013).
The Native claim can be introduced in areas like unallocated or empty crown land,
beaches, water bodies that are not owned privately such as ocean or river, government
agency lands, assigned lands for Indigenous Australians, public reserves and parks,
existing leases such as a non-exclusive pastoral lease. The rights to minerals, petroleum
and gas are exempt from the native title claims. In sea/tidal areas, the native title claims
will be non-exclusive to accommodate the common marine navigation and access rights
(Bauman and Lauder, 2013).
Another area covered under the Native Title law are the water rights that fall under
section 211 of the Native Title Act. This section allows the indigenous Australians that
hold Native right to take water and access the water source. The activities that can be
done under this provision include gathering, spiritual/cultural activity, hunting, and
fishing. It can be surmised that the water rights given to the native claim holder are
similar to the water right given to a normal individual that allows the use of water for
personal purposes (Bauman and Lauder, 2013).
Native Title – Human Rights Perspective
The primary concern raised by the human rights activists is the inconsistency of the
legal principles inherent to the Native Title Act in terms of Australian obligations
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towards international human rights (Hanna and Vanclay, 2013). The United Nations
Human Rights committee that was responsible for the elimination of discrimination
based on Race considered the Native Title Act and found it wanting. The committee
considered a significant part of the NTA 1998 to be discriminatory especially the
primary production, confirmation, and validation upgrade provisions and curtailing of
the right that allows aboriginal to negotiate (Hanna and Vanclay, 2013).
The international human rights bodies like the United Nations Human Rights committee
are a major factor that has put the pressure upon the Australian Government to reform
their views on the Native Title Act 1993. The biggest criticism to the Native Title Act
and its subsequent amendments is the ineffectiveness of the legislation in preserving the
property right and relevant set of rights of the aboriginal people (Macdonald and
Bauman, 2011). The human right organisations criticise these legislations by indicating
that these legislations are favouring the government and the landowners instead of the
aboriginal people. The changes brought about in the Native Title Act are considered to
be driven by the industrialists, landowners, and the government instead of the
Aboriginal people (Hanna and Vanclay, 2013).
The international human rights organisations and the standards are a strong parameter
that keeps the national legislation and policies concerning the indigenous populace in
check. The Australian government has acknowledged and is shown inclination to
protect and promote the human rights standards within the country especially in the
context of aboriginal people to the international standards and instruments of human
rights such as the International Covenant on Economic, Social and Cultural Rights, the
International Convention on the Elimination of All Forms of Racial Discrimination, the
Universal Declaration of Human Rights, and the International Covenant on Civil and
Political Rights (Hanna and Vanclay, 2013). These instruments provide the basis of
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effective enforcement of Native title by providing protection to the property from
discriminatory and arbitrary interference while ensuring the basic human right to
practice the aboriginal culture and religion (Hanna and Vanclay, 2013).
The legislative changes being pursued by the human right and aboriginal community
activists can be a beneficial change for the indigenous Australians although the
willingness to implement these legislations and incorporating it at the ground level will
be the key. The cultural divide between the Australian and indigenous Australians along
with the continuous ignorance towards the wellbeing of the indigenous populace will
require herculean efforts from all quarters. The focus of the Australian government
towards the welfare activities for the Aboriginal communities will be inconsequential in
the absence of delivering the basic human rights such as the property rights signified by
the Native Title (Macdonald and Bauman, 2011).
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REFERENCES
Australian Law Reform Commission, 2015. Connection to country: review of the Native
Title Act 1993.
Bauman, T. and Lauder, G., 2013. Pathways to the co-management of protected areas
and native title in Australia (Vol. 29, No. 2, pp. 117-22).
Cawthorn, M. 2019. Native title, rights and interests. [Online]. [2 June 2019].Available
from: /learn/native-title-and-pbcs/native-title-rights-and-interests
Hanna, P. and Vanclay, F., 2013. Human rights, indigenous peoples and the concept of
free, prior and informed consent. Impact Assessment and Project Appraisal, 31(2),
pp.146-157.
Macdonald, G. and Bauman, T., 2011. Concepts, hegemony, and analysis: Unsettling
native title anthropology. UNSETTLING ANTHROPOLOGY, p.1.
Sanders, W., 2018. Mabo and Native Title: Origins and institutional implications.
Canberra, ACT: Centre for Aboriginal Economic Policy Research, Research School of
Social Sciences, College of Arts & Social Sciences, The Australian National University.
Short, D., 2016. Reconciliation and colonial power: Indigenous rights in Australia.
Routledge.
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