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Native title in Australia facts for kids

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Native title is a special idea in Australian law. It means that Indigenous Australians (both Aboriginal and Torres Strait Islander people) have rights and interests in their land. These rights come from their traditional laws and customs, which existed long before Europeans arrived.

This idea recognizes that Indigenous peoples had, and still have, a connection to their land. This connection survived even when the British Crown claimed ownership of Australia. Native title can exist alongside other land rights. Sometimes, different Indigenous groups can even have native title over the same land.

The most important court case for native title in Australia was Mabo v Queensland (No 2) in 1992. After this, the Australian Government passed a law called the Native Title Act 1993. This law helped make it clearer how native title could be claimed, protected, and recognized through the courts.

The Federal Court of Australia helps with native title claims. It arranges discussions (called mediation) and makes decisions about who has native title. The National Native Title Tribunal (NNTT) also helps. It checks new claims and helps solve problems. The Attorney-General's Department advises the government on native title laws.

What are Native Title and Land Rights?

It's important to know the difference between "land rights" and "native title."

Land rights are special rights given by the Australian, state, or territory governments. These usually involve giving Indigenous Australians ownership of land, like a freehold (full ownership) or a long-term lease.

Native title is different. It's not something the government gives. Instead, it's a recognition by Australian law of rights that Indigenous people already had. These rights come from their traditional laws and customs, which existed before British settlement.

The Aboriginal Land Rights Act 1976 is a law that helps grant land to Aboriginal Land Trusts. It also sets up Aboriginal land councils and deals with mineral rights and income from land use. The Native Title Act 1993 (NTA) recognizes that Indigenous people have rights to land, water, and sea. It allows for talks about land use but doesn't always give full ownership or a right to stop development.

Understanding Native Title

The National Native Title Tribunal says native title means:

  • The rights of Aboriginal and Torres Strait Islander people to land and water.
  • These rights come from their traditional laws and customs.
  • These people have a strong connection to the area.
  • Australian law recognizes these rights.

The Australian government's indigenous.gov.au website explains it as:

  • Australian law recognizing Indigenous Australians' rights to land and waters.
  • These rights are based on their traditional laws and customs.
  • This recognition comes from common law and the Native Title Act 1993.

Native title is often called a "bundle of rights." This means it can include different rights, like camping, performing ceremonies, or hunting. When native title is recognized, the specific rights are decided for each case. It doesn't always mean full ownership.

History of Native Title

The idea of native title in Australia has a long history.

Before the Mabo Case

The Gove Land Rights Case (1971)

For a long time, Australian courts didn't deal with native title. In 1835, John Batman tried to make a treaty with Aboriginal elders. But the government said this treaty was not valid. They believed the British owned all the land.

In 1971, a case called Milirrpum v Nabalco Pty Ltd (the "Gove land rights case") happened. The judge said that native title did not exist. He ruled that Australia was terra nullius (land belonging to no one) when the British arrived.

The Aboriginal Land Rights Act (1972–1976)

After the Gove case, the government started looking into Aboriginal land rights. The Aboriginal Land Rights Act 1976 was passed. This law set up a way to give almost half of the land in the Northern Territory to Aboriginal ownership.

The Paul Coe Case (1979)

In 1979, a Wiradjuri man named Paul Coe tried to argue in the High Court of Australia that Aboriginal rights to land should be recognized. His claim was not fully heard because of legal issues.

South Australian Land Rights (1981)

In 1981, the South Australian government passed the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981. This law gave a large area of land (about 10% of the state) back to the Pitjantjatjara and Yankunytjatjara people. Later, more land was returned to the Maralinga Tjarutja people in 1985.

Mabo and the Native Title Act

The Mabo Case (1988–1992)

The Mabo v Queensland (No 2) case in 1992 was a huge moment for native title. The High Court of Australia decided that the idea of terra nullius was wrong. They recognized that the Meriam people of Murray Island had native title over their traditional lands.

The Court said that native title existed even without the Crown giving it. It would continue to exist unless the Indigenous people lost their connection to the land. This decision opened the door for native title to be recognized in many parts of Australia.

The Native Title Act 1993

One year after the Mabo decision, the government passed the Native Title Act 1993. This law made the recognition of native title official. It aimed to make it clearer how native title claims could be made and protected through the courts. The Act also created the National Native Title Tribunal.

Wik and the 1998 Amendment

The Wik Decision (1996)

After Mabo, people wondered if native title could exist on land used for pastoral leases (large areas leased for farming animals). The Wik Decision in 1996 clarified this. The court found that native title could exist at the same time as pastoral leases. If there was a conflict, the rights of the pastoral lease would usually come first.

The Native Title Amendment Act 1998

The Wik decision led to changes in the Native Title Act. The Native Title Amendment Act 1998 made native title rights more limited. It made it harder to negotiate and removed native title on many pastoral and mining leases given before 1994.

Important Cases After 1998

Yorta Yorta Case (1998–2002)

The Yorta Yorta v Victoria case was a native title claim by the Yorta Yorta people. The court decided in 1998 that their connection to traditional laws and customs had been "washed away" by history. Appeals were also dismissed. This case set strict rules for proving a continuous connection to traditional ways.

Miriuwung Gajerrong Case (1998–2003)

In the Western Australia v Ward case, the High Court said that native title is like a "bundle of rights." This means different parts of native title rights can be removed one by one. For example, a mining lease might remove the right to control access to land, but other rights might remain.

Yarmirr Case (2001)

The Yarmirr v Northern Territory case was about native title over seas and sea-beds. It was the first time the High Court made a decision about native title over water. It showed that traditional owners do have native title over the sea, but it's usually not exclusive (meaning others can still fish or navigate).

Nangkiriny Case (2002 & 2004)

The Nangkiriny v State of Western Australia case recognized land rights for the Karajarri people in the Kimberley region. This covered a large area of land.

Maralinga Land Return (2004)

In 2004, a large area of land (21,000 square kilometres) was returned to the Maralinga Tjarutja and Pila Nguru people in South Australia. This land is now called Mamungari Conservation Park.

Wotjobaluk and Other Peoples (2005)

In 2005, the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagalk peoples won recognition of their native title in Western Victoria. This was the first successful native title claim in south-eastern Australia.

Noongar Case (2005)

In 2005, the Federal Court recognized the native title of the Noongar people over the Perth area. This was the first time native title was recognized over a capital city. However, parts of this decision were later appealed.

Blue Mud Bay Sea Rights (2008)

The 2008 Blue Mud Bay sea rights case set a new rule for sea rights. It recognized sea rights for the Yolŋu people over an area of sea and land that is covered by water at high tide and exposed at low tide.

Recent Amendments (2007 & 2009)

The Native Title Act 1993 has been updated several times. In 2007, changes were made to make the native title process more efficient. In 2009, further changes allowed the Federal Court to decide who would help mediate (resolve) a claim.

More Important Decisions (2020)

Yamatji Claim (2020)

The Yamatji Marlpa Aboriginal Corporation was involved in a large native title claim in Western Australia. In February 2020, a historic decision recognized both native title and a special agreement (ILUA) covering a huge area of land.

Gurindji, Wave Hill Station (2020)

In September 2020, the Federal Court of Australia recognized the native title rights of the Gurindji people over 5,000 square kilometres of Wave Hill Station. This means they can receive money from mining companies and have rights to hunt, gather, teach, and perform cultural activities on their land. This decision was celebrated by descendants of Vincent Lingiari and others involved in the Wave Hill walk-off.

Native Title Rights and Interests

Native title involves two types of laws:

  • Traditional laws and customs: These are the rules and ways of life of Aboriginal and Torres Strait Islanders before British settlement.
  • Australian law: This is the legal system brought to Australia by the British.

Before the Mabo case, British law assumed Australia was "empty land" (terra nullius). This meant English laws were simply applied, and local Indigenous laws were not recognized.

Native title is the term in Australian law for the rights Indigenous Australians have to land and water under their traditional customs. These rights can belong to a community or an individual. They cannot be sold, only given back to the Crown. The rights can vary, from just being able to access and use the land to having exclusive (sole) possession.

The National Native Title Tribunal explains that the specific native title rights depend on the traditional laws and customs of the people. They also depend on what other rights exist over the land. Generally, native title must respect other existing rights.

Native title rights can include:

  • The right to live in an area or access it for traditional purposes.
  • The right to visit and protect sacred sites.
  • The right to hunt, fish, or gather resources.
  • The right to teach law and custom.

Exclusive possession (meaning only the native title holders can use the land) can only be recognized over certain areas, like empty Crown land or areas already held by Indigenous Australians.

Native Title Determinations

The National Native Title Register (NNTR) keeps a record of all approved native title decisions. A decision can be that native title exists or does not exist.

When native title is recognized, the Indigenous group must choose a Native Title Prescribed Body Corporate (PBC). This group will hold or manage their native title.

As of 2011, registered native title decisions covered about 16% of Australia's land. Also, special agreements called Indigenous Land Use Agreements (ILUAs) covered another 16% of the land and some sea areas.

Mediation

Native title cases often involve mediation. This is where different groups, like Indigenous parties, governments, miners, and farmers, talk to each other to try and reach an agreement.

Mediation helps everyone understand the issues and find solutions together. It's a structured process that aims for a mutually agreed outcome, rather than a judge making a decision for them.

Alternative Agreements

Sometimes, native title issues are solved outside of court. These are called "alternative settlements" or "broader settlements." They can be quicker and more efficient than going through the court system.

These agreements can recognize traditional ownership even in areas where native title rights might have been lost. They are reached through negotiation. Examples include Indigenous Land Use Agreements (ILUAs) or, in Victoria, settlements under the Traditional Owner Settlement Act 2010 (TOSA).

These agreements can happen alongside the Native Title Act. Often, the traditional owners agree to withdraw any existing native title claims. These settlements can cover many things, like:

  • Recognizing traditional owner rights.
  • Giving land for specific purposes.
  • The right to be asked for input on natural resource management.

Types of Agreements

Indigenous Land Use Agreements (ILUAs)

An Indigenous Land Use Agreement (ILUA) is a voluntary agreement between a native title group and others about how land and water will be used. They must be about native title matters but can include other topics. ILUAs help people create flexible agreements that suit their specific situations.

An ILUA can cover areas where native title has or hasn't been decided yet. They can be part of a native title decision or separate from it. Once registered, an ILUA is legally binding on everyone who holds native title in that area.

ILUAs are a faster way to deal with native title issues than going to court. They can cover many topics, such as:

  • Native title holders agreeing to new developments.
  • How native title rights exist alongside other people's rights.
  • Access to an area.
  • Protecting sacred sites.
  • Compensation (payment).
  • Job and economic chances for native title groups.
  • Cultural heritage.
  • Mining.

There are three main types of ILUAs.

TOSA Settlements (Victoria)

The Traditional Owner Settlement Act 2010 (TOSA) in Victoria allows for out-of-court native title settlements. The Victorian Government can recognize traditional owners and their rights over Crown land. In return, traditional owners agree to withdraw any native title claims under the Native Title Act 1993.

What is a Traditional Owner?

Alternative agreements require claimants to show they are the "traditional owners" of the land. This term isn't in the Native Title Act, but it's used in ILUAs.

The definition of "traditional owner" can be different in various states. Generally, it refers to a group of Aboriginal people who have strong spiritual connections to a site and are responsible for that land according to Aboriginal tradition.

It can be complex to figure out who the "right people for the right country" are. Sometimes, there are challenges because different groups might have primary or secondary rights to the same land.

A Traditional Owner Corporation (TOC) is a type of Indigenous corporation. It usually acts as the negotiating group when deciding native title outcomes. It's different from a Registered Native Title Body Corporate (RNTBC), which manages the land after a native title decision.

In Victoria, a "traditional owner group" is defined by the Traditional Owner Settlement Act 2010. It includes people recognized by the Attorney-General based on their traditional and cultural connections to the land.

The terms "traditional owners" or "traditional custodians" are also used in Acknowledgment of Country statements. These statements show respect to the people of that Country.

Examples of Alternative Settlements

Native Title by State and Territory

Australian Capital Territory (ACT)

No native title claim has been granted in the ACT. This is because there aren't enough historical records to prove a continuous connection to traditional laws and customs.

South Australia

An ILUA was agreed with the Kaurna Yerta Aboriginal Corporation (KYAC) in Adelaide in 2018. This was the first time a land use agreement was reached in an Australian capital city. It covers Adelaide's whole metropolitan area and includes some undeveloped land.

Victoria

As of 2020, four native title claims have been decided in Victoria. Three of these recognized native title through agreements. The Yorta Yorta v Victoria case (mentioned above) did not recognize native title.

The native title decisions in Victoria include:

  • Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Yupagalk Peoples (the "Wimmera claim") (2005).
  • Gunditjmara People (2007).
  • Gunaikurnai People (2010).

Even though the Yorta Yorta people's claim didn't meet the legal standard for native title, the Victorian Government made a special agreement with them in 2004. This agreement helps them jointly manage certain areas of Crown land, like Barmah National Park.

Western Australia

The South West Native Title Settlement for the Noongar people in Western Australia is a major alternative agreement. It aims to resolve native title claims by officially recognizing the Noongar people as the traditional owners of south-western Western Australia. This settlement includes six individual Indigenous Land Use Agreements (ILUAs).

National Native Title Council

The National Native Title Council (NNTC) is a group that supports the native title sector. Its members include Native Title Representative Bodies, service providers, and Traditional Owner Corporations.

Human Rights Reports

The Aboriginal and Torres Strait Islander Social Justice Commissioner used to write yearly reports for the Attorney-General. These reports looked at how the Native Title Act affected the human rights of Aboriginal and Torres Strait Islander peoples. These reports helped promote human rights and improve native title processes. All reports from 1994 to 2016 are available online.

See also

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