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Native title is the designation given to the
common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority ...
doctrine of
Aboriginal title Aboriginal title is a common law doctrine that the Indigenous land rights, land rights of indigenous peoples to customary land, customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for ...
in Australia, which is the recognition by
Australian law The legal system of Australia has multiple forms. It includes a written Constitution of Australia, constitution, unwritten Constitutional convention (political custom)#Australia, constitutional conventions, statutes, Delegated legislation in the ...
that
Indigenous Australians Indigenous Australians are people with familial heritage to groups that lived in Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continen ...
(both
Aboriginal Australian Aboriginal Australians are the various Indigenous peoples Indigenous peoples, also referred to as first peoples, first nations, aboriginal peoples, native peoples (with these terms often capitalized when referred to relating to specific ...
and
Torres Strait Islander Torres Strait Islanders () are the Indigenous peoples Indigenous peoples, also referred to as First people, Aboriginal people, Native people, or autochthonous people, are culturally distinct ethnic groups who are native to a particular pla ...
people) have rights and interests to their land that derive from their traditional laws and customs. The concept recognises that in certain cases there was and is a continued beneficial legal interest in land held by Indigenous peoples which survived the acquisition of
radical title Allodial title constitutes ownership of real property In England, English common law, real property, real estate, realty, or immovable property is land which is the property of some person and all structures (also called Land improvemen ...
to the land by
the Crown The Crown is the state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' (newspaper), a daily newspaper i ...

the Crown
at the time of
sovereignty Sovereignty is the supreme authority within a territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the person, body, or institution that has the ultimate a ...
. Native title can co-exist with non-Aboriginal proprietary rights and in some cases different Aboriginal groups can exercise their native title over the same land. The foundational case for native title in Australia was ''
Mabo v Queensland (No 2)''Mabo v Queensland'' may refer to: * '' Mabo v Queensland (No 1)'', decided 8 December 1988, overturned the ''Queensland Coast Islands Declaratory Act 1985'' as incompatible with the ''Racial Discrimination Act 1975'' * '' Mabo v Queensland (No 2)< ...
'' (1992). One year after the recognition of the legal concept of native title in ''Mabo'', the
Keating Government The Keating Government was the federal executive government of Australia led by Prime Minister Paul Keating Paul John Keating (born 18 January 1944) is an Australian politician who served as the 24th Prime Minister of Australia and the Le ...
formalised the recognition by legislation with the enactment by the
Australian Parliament The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislative branch A legislature is a deliberative assembly A deliberative assembly is a gathering of members (of any kind o ...
of the ''
Native Title Act 1993 The ''Native Title Act 1993'' (NTA) is a law passed by the Australian Parliament, the purpose of which is "to provide a national system for the recognition and protection of native title and for its co-existence with the national land managemen ...
''. The Act attempted to clarify the legal position of landholders and the processes to be followed for native title to be claimed, protected and recognised through the courts. The
Federal Court of Australia The Federal Court of Australia is an Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmani ...
arranges
mediation Mediation is a structured, interactive process where an impartial third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged ...
in relation to claims made by Aboriginal and Torres Strait Islander peoples, and hears applications for, and makes, native title determinations. Appeals against these determinations can be made to a full sitting of the Federal Court and then to the
High Court of Australia The High Court of Australia is Australia's . It exercises and on matters specified within . The High Court was established following passage of the '. It derives its authority from Chapter III of the Australian Constitution, which vests it ...

High Court of Australia
. The
National Native Title Tribunal The National Native Title Tribunal (NNTT) is an independent body established under the ''Native Title Act 1993 The ''Native Title Act 1993'' (NTA) is a law passed by the Australian Parliament, the purpose of which is "to provide a national sys ...
(NNTT), established under the ''Native Title Act 1993'', is a body that applies the "registration test" to all new native title claimant applications, and undertakes future act mediation and arbitral functions. The Attorney-General's Department (AGD) advises the
Australian Government The Australian Government, also known as the Commonwealth Government, is the national government of Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the ...
on legal and legal-policy regarding on native title, and assists the Attorney-General to administer the ''Native Title Act 1993''.


Definitions: Native title/land rights

According to the Attorney-General's Department (AGD): Text was copied from this source, which is available under
Attribution 4.0 International (CC BY 4.0)
licence (as pe
this page
.
The ''
Aboriginal Land Rights Act 1976 The ''Aboriginal Land Rights (Northern Territory) Act 1976'' (ALRA) is Australian federal government legislation that provides the basis upon which Aboriginal Australian Aboriginal Australians are the various Indigenous peoples of the Main ...
'' (see below) covers the granting of land to Aboriginal Land Trusts; setting up
Aboriginal land council Land councils, also known as Aboriginal land councils, or land and sea councils, are Australian community organisations, generally organised by region, that are commonly formed to represent the Indigenous Australians (both Aboriginal Australians a ...
s; mineral rights; decision-making processes for dealing with land; dealing with income from land use agreements; and negotiations about leases for development on Aboriginal land. The ''Native Title Act 1993'' (NTA) gives recognition that "Aboriginal and Torres Strait Islander people have rights to land, water and sea, including exclusive possession in some cases, but does not provide ownership". It allows for negotiations over land, but does not provide for a
veto A veto (Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. Through the power of the Roman Re ...
over development, and nor does it grant land, as the ''Aboriginal Land Rights Act'' (ALRA) does.


Native title definitions

National Native Title Tribunal definition: Commonwealth Government's indigenous.gov.au website: Native title has also been described as a "bundle of rights" in land, which may include such rights as camping, performing
ceremony A ceremony (, ) is a unified ritual A ritual is a sequence of activities involving gestures, words, actions, or objects, performed according to a set sequence. Rituals may be prescribed by the traditions of a community, including a religious ...
, etc. If native title is granted, specific rights are decided on a case-by-case basis, and may only sometimes includes freehold title.


Timeline


Pre-Mabo


1971 – Milirrpum

Australia did not experience litigation involving Aboriginal native title until the 1970s, though several earlier cases tangentially involved issues of native title.''Attorney-General v Brown'
(1847) 1 Legge 312
2 SCR (NSW) App 30.
... In 1835, John Batman purported to sign
Batman's Treaty Batman's Treaty was an agreement between John Batman, an Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, ...
with Aboriginal elders in the
Port Phillip District The Port Phillip District was a historical administrative division of the Colony of New South Wales, which existed from September 1836 until 1 July 1851, when it was separated from New South Wales and became the Colony of Victoria. The District' ...
. Governor Bourke declared Batman's Treaty was "void and of no effect as against the rights of the Crown" and declared any person on "vacant land of the Crown" without authorization from the Crown to be trespassing.National Archives of Australia,
Governor Bourke's Proclamation 1835 (UK)
'' Accessed 3 November 2008
The proclamation was approved by the Colonial Office. The official objection to the Treaty was that Batman had attempted to negotiate directly with the Aboriginal people, whom the British did not recognise as having any claim to any lands in Australia. In 1971, in ''
Milirrpum v Nabalco Pty Ltd ''Milirrpum v Nabalco Pty Ltd'', also known as the Gove land rights case because its subject was land known as the Gove Peninsula The Gove Peninsula is at the northeastern corner of Arnhem Land in the Northern Territory of Australia. The p ...
'' (the "Gove land rights case") in the
Supreme Court of the Northern Territory The Supreme Court of the Northern Territory is the superior court for the Australian States and territories of Australia, Territory of the Northern Territory. It has unlimited jurisdiction within the territory in civil law (common law), civil ma ...
, Justice Richard Blackburn explicitly rejected the concept of native title, ruling against the claimants on a number of issues of law and fact, but rejecting the doctrine of Aboriginal title in favor of ''
terra nullius ''Terra nullius'' (, plural ''terrae nullius'') is a Latin expression meaning "no man's land, nobody's land". It was a principle sometimes used in international law to justify claims that territory may be acquired by a state's Acquisition of ...
'', which held that land belonged to no one at the time of British settlement.''Milirrpum v Nabalco Pty Ltd'' (1971) 17 FLR 141 (27 April 1971)
Supreme Court A supreme court is the highest court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of just ...
(NT).


1972–1976: ''Aboriginal Land Rights Act''

In the wake of ''Milirrpum'' and the election of the
Whitlam Government The Whitlam Government was the federal executive government of Australia led by Prime Minister Gough Whitlam Edward Gough Whitlam (; 11 July 191621 October 2014) was the 21st Prime Minister of Australia, serving from 1972 to 1975. He led th ...
in 1972, the
Aboriginal Land Rights Commission The Aboriginal Land Rights Commission, also known as the Woodward Royal Commission, was a Royal Commission A royal commission is a major ad-hoc formal public inquiry into a defined issue in some monarchies. They have been held in the United K ...
(also known as the Woodward Royal Commission) was established in 1973 to inquire into appropriate ways to recognise Aboriginal land rights in the
Northern Territory The Northern Territory (NT; formally the Northern Territory of Australia) is an Australian territory in the central and central northern regions of Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, ...
. Prime Minister
Gough Whitlam Edward Gough Whitlam (; 11 July 191621 October 2014) was the 21st prime minister of Australia The prime minister of Australia is the head of government The head of government is either the highest or second highest official in the ex ...
introduced a new policy of Aboriginal self-determination, and initiatives such as the Aboriginal Land Fund and the National Aboriginal Consultative Committee (NACC) were set up. The latter consisted of elected Aboriginal representatives, who would advise the Minister of Aboriginal Affairs. The Whitlam government introduced legislation later passed by the
Fraser Government The Fraser Government was the federal executive government of Australia led by Prime Minister Malcolm Fraser John Malcolm Fraser (; 21 May 1930 – 20 March 2015) was an Australian politician who served as the 22nd prime minister of Aust ...
as the ''Aboriginal Land Rights Act 1976'',. which established a procedure to transfer almost 50 per cent of land in the Northern Territory (around 600,000 km2) to collective Aboriginal ownership. The Fraser government continued to implement many of the previous government's initiatives, under the description "self-management" rather than self-determination.


1979 – Paul Coe case

In 1979, Paul Coe, a
Wiradjuri The Wiradjuri people (; ) are a group of Aboriginal Australians, Aboriginal Australian people from central New South Wales, united by common descent through kinship and shared traditions. They survived as skilled hunter-fisher-gatherers, in fa ...
man from
Cowra, New South Wales Cowra is a small town in the Central West region of New South Wales New South Wales (abbreviated as NSW) is a States and territories of Australia, state on the Eastern states of Australia, east coast of :Australia. It borders Queensland to ...
, commenced, as plaintiff, an action in the
High Court of Australia The High Court of Australia is Australia's . It exercises and on matters specified within . The High Court was established following passage of the '. It derives its authority from Chapter III of the Australian Constitution, which vests it ...

High Court of Australia
arguing that at the time white people came to Australia, Aborigines were there and therefore the Court had to recognise their rights.. Coe's claim was never heard due to serious deficiencies with his statement of claim. Justice Gibbs said, at paragraph 21, 'The question what rights the aboriginal people of this country have, or ought to have, in the lands of Australia is one which has become a matter of heated controversy. If there are serious legal questions to be decided as to the existence or nature of such rights, no doubt the sooner they are decided the better, but the resolution of such questions by the courts will not be assisted by imprecise, emotional or intemperate claims. In this, as in any other litigation, the claimants will be best served if their claims are put before the court dispassionately, lucidly and in proper form'.


1981 – ''Pitjantjatjara Yankunytjatjara Land Rights Act''

The
South Australia South Australia (abbreviated as SA) is a States and territories of Australia, state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of , it is the fourth-largest of Austral ...

South Australia
n ''Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981''. was introduced by Premier
Don Dunstan Donald Allan Dunstan (21 September 1926 – 6 February 1999) was an Australian politician. He entered politics as the Member for Norwood in 1953 at age 26, became leader of the South Australian Branch of the Australian Labor Party in 1967, an ...
in November 1978, several months prior to his resignation from Parliament. An amended bill, following extensive consultation, was passed by the in March 1981. This legislation gave significant rights well in advance of any other to date in Australia. In 1981, SA Premier Tonkin returned of land (10.2% of the state's land area) to the Pitjantjara and
Yankunytjatjara The Yankuntjatjarra, otherwise written ''Jangkundjara'', are an indigenous Australian Indigenous Australians are people with familial heritage to groups that lived in Australia before British colonisation. They include the Aboriginal and Torr ...
people. However, it did not give the people the power of veto over mining activities; any disputes would need to be resolved by an independent arbitrator. In 1984 Premier
John Bannon John Charles Bannon (7 May 1943 – 13 December 2015) was an Australian politician and academic. He was the 39th Premier of South Australia, leading the Australian Labor Party (South Australian Branch), South Australian Branch of the Australia ...

John Bannon
's Labor Government passed legislation to return lands to the
Maralinga Tjarutja The Maralinga Tjarutja, or Maralinga Tjarutja Council, is the corporation representing the traditional Anangu owners of the remote western areas of South Australia South Australia (abbreviated as SA) is a States and territories of Australia ...
people. The legislation was proclaimed in January 1985 and was followed by a ceremony in the desert attended by Maralinga Tjarutja leader
Archie Barton Archie Barton was an Aboriginal Australian political activist and Australian Aboriginal land rights, land-rights campaigner. He played a key role in the 20-year campaign in the Maralinga Tjarutja people regaining ownership of their land, followi ...
, John Bannon and Aboriginal Affairs Minister Greg Crafter. This granted rights over of land in the
Great Victoria Desert The Great Victoria Desert is a sparsely populated desert ecoregion and Interim Biogeographic Regionalisation for Australia, interim Australian bioregion in Western Australia and South Australia. Location and description The Great Victoria is ...
, including the land contaminated by the British nuclear weapons testing at Maralinga.


Mabo and the ''Native Title Act''


1988–1992 – Mabo

''
Mabo v Queensland (No 2)''Mabo v Queensland'' may refer to: * '' Mabo v Queensland (No 1)'', decided 8 December 1988, overturned the ''Queensland Coast Islands Declaratory Act 1985'' as incompatible with the ''Racial Discrimination Act 1975'' * '' Mabo v Queensland (No 2)< ...
'' (1992) was the foundational case for native title in Australia. In 1992 the doctrine of ''terra nullius'' confirmed in ''Milirrpum v Nabalco'' was overruled by the High Court in ''Mabo v Queensland (No 2)'',. which recognised the
Meriam people The Meriam are an Indigenous Australians, Indigenous Australian group of Torres Strait Islander people who are united by a common language, strong ties of kinship and live as skilled hunter–fisher–gatherers in family groups or clans on a numbe ...
of Murray Island (Mer) in the Torres Straits as native title holders over part of their traditional lands. The Court repudiated the notion of absolute sovereignty over Australia to the Crown at the moment of European settlement. The Court held, rather, that native title existed without originating from the Crown. Native title would remain in effect unless extinguished by a loss of connection to the land. Justice
Gerard Brennan Sir Francis Gerard Brennan (born 22 May 1928) is a retired Australian lawyer and jurist who served as the 10th Chief Justice of Australia (appointed by Prime Minister Paul Keating in 1995). Prime Minister Malcolm Fraser appointed Brennan to the ...
in this landmark decision stated:
However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. Thus although over some parts of Australia native title has been lost, in large areas of the nation's interior, native title could be recognised.
As Justice Brennan stated in ''Mabo (No. 2)'', "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".


1993 – ''Native Title Act 1993''

One year after the recognition of the legal concept of native title in ''Mabo'', the
Keating Government The Keating Government was the federal executive government of Australia led by Prime Minister Paul Keating Paul John Keating (born 18 January 1944) is an Australian politician who served as the 24th Prime Minister of Australia and the Le ...
formalised the recognition by legislation with the enactment by the
Australian Parliament The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislative branch A legislature is a deliberative assembly A deliberative assembly is a gathering of members (of any kind o ...
of the ''
Native Title Act 1993 The ''Native Title Act 1993'' (NTA) is a law passed by the Australian Parliament, the purpose of which is "to provide a national system for the recognition and protection of native title and for its co-existence with the national land managemen ...
''.. The Act attempted to clarify the legal position of landholders and the processes to be followed for native title to be claimed, protected and recognised through the courts. The Act also established the
National Native Title Tribunal The National Native Title Tribunal (NNTT) is an independent body established under the ''Native Title Act 1993 The ''Native Title Act 1993'' (NTA) is a law passed by the Australian Parliament, the purpose of which is "to provide a national sys ...
.


Wik and 1998 amendment


1996 – Wik

After the Mabo decision, uncertainty surrounded whether native title claims over
pastoral lease A pastoral lease, sometimes called a pastoral run, is an arrangement used in both Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent ...
s would extinguish these leases. The Wik Decision in 1996 clarified the uncertainty. The court found that the statutory pastoral leases (which cover some 40% of the Australian land mass) under consideration by the court did not bestow rights of exclusive possession on the leaseholder. As a result, native title rights could co-exist, depending on the terms and nature of the particular pastoral lease. Where there was a conflict of rights, the rights under the pastoral lease would extinguish the remaining native title rights..


1998 – ''Native Title Amendment Act 1998''

The Wik decision led to amendments to the ''Native Title Act'' 1993 by the ''
Native Title Amendment Act 1998 Native may refer to: People * Jus soli ''Jus soli'' ( , , ; meaning "right of soil"), commonly referred to as birthright citizenship, is the right of anyone born in the territory of a state to nationality or citizenship. ''Jus soli'' was p ...
''. This Act, also known as the "10 Point Plan", was introduced by the
Howard Government The Howard Government refers to the federal executive government of Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australia ...
. It streamlined the claims system and provided security of tenure to non-Aboriginal holders of pastoral leases and other land title, where that land might potentially be claimed under the ''Native Title Act 1993''. The Act placed some restrictions on native title claims.


Cases after the 1998 amendment


1998–2002 – Yorta Yorta

''Yorta Yorta v Victoria'', was a native title claim by the
Yorta Yorta The Yorta Yorta, also known as Jotijota, are an Aboriginal Australian Aboriginal Australians are the various Indigenous peoples of the Mainland Australia, Australian mainland and many of its islands, such as Tasmania, Fraser Island, Hinchin ...
Aboriginal people of north central
Victoria Victoria most commonly refers to: * Victoria (Australia), a state of the Commonwealth of Australia * Victoria, British Columbia, provincial capital of British Columbia, Canada * Victoria (mythology), Roman goddess of Victory * Victoria, Seychelles ...
, which was dismissed by Justice Olney of the Federal Court in 1998.. Appeals to the Full Bench of the Federal Court in 2001,. and the High Court in 2002 were also dismissed. The determination by Justice Olney in 1998 ruled that the 'tide of history' had 'washed away' any real acknowledgement of traditional laws and any real observance of traditional customs by the applicants. The 2002 High Court decision adopted strict requirements of continuity of traditional laws and customs for native title claims to succeed.


1998–2003 – Miriuwung Gajerrong

''Ward v Western Australia'' (1998) was an application made on behalf of the Miriuwung and Gajerrong people of the east Kimberly, over land in
Western Australia Western Australia (abbreviated as WA) is a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' (newspape ...

Western Australia
and the Northern Territory. Justice Malcolm Lee of the Federal Court ruled in their favour in recognition of the native title.. Western Australia appealed the decision to the Full Court of the Federal Court,. then to the High Court. The High Court held in '' Western Australia v Ward'' that native title is a
bundle of rights The bundle of rights is a metaphor to explain the complexities of property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the pr ...
, which may be extinguished one by one, for example, by a mining lease. In this case, the lease did not confer 'exclusive possession', because the claimants could pass over the land and do various things. But some parts of native title rights were extinguished, including the rights to control access and make use of the land. The claim was remitted to the Full Court of the Federal Court to determine in accordance with the decision of the High Court. The claimants reached an agreement about the claim area and a determination was made in 2003. "Exclusive possession native title was recognised over
Lacrosse Island Lacrosse Island is an island in the Cambridge Gulf in the Kimberley (Western Australia), Kimberley region of Western Australia, located between Cape Domett on the eastern shore, and Cape Dussejour on the western. The island is in the Local governm ...
, Kanggurru Island, Aboriginal reserves within the Kununurra townsite, Glen Hill pastoral lease and Hagan Island. Non-exclusive rights were recognised over a number of areas including islands in Lake Argyle."


2001 – Yarmirr

''Yarmirr v Northern Territory'' (2001), was an application made on behalf of a number of
clan A clan is a group of people A people is any plurality of person A person (plural people or persons) is a being that has certain capacities or attributes such as reason, morality, consciousness or self-consciousness, and being a part of ...

clan
groups of Aboriginal people to an area of seas and sea-beds surrounding
Croker Island Croker Island is an island upright=1.15, Great_Britain.html"_;"title="Ireland_(left)_and_Great_Britain">Ireland_(left)_and_Great_Britain_(right),_are_large_islands_of_north-west_Europe image:Small_Island_in_Lower_Saranac_Lake.jpg.html" ;"ti ...
in the Northern Territory. It was the first judgment by the High Court of native title over waters. The judge, Olney J, determined that members of the Croker Island community have a native title right to have free access to the sea and sea-bed of the claimed area for a number of purposes. The case established that traditional owners do have native title of the sea and sea-bed; however common law rights of fishing and navigation mean that only non-exclusive native title can exist over the sea.. The decision paved the way for other native title applications involving waters to proceed.


2002 & 2004 – Nangkiriny

''Nangkiriny v State of Western Australia'' (2002 & 2004), for the Karajarri people in the
Kimberley Kimberly or Kimberley may refer to: Places and historical events Australia * Kimberley (Western Australia) ** Roman Catholic Diocese of Kimberley * Kimberley Warm Springs, Tasmania * Kimberley, Tasmania a small town * County of Kimberley, a ca ...
region, south of Broome. Land rights recognised over of land (half the size of Tasmania).


2004 – Maralinga

In May 2004, following the passage of special legislation, South Australian Premier
Mike Rann Michael David Rann, , (born 5 January 1953) is an Australian former politician who was the 44th Premier of South Australia from 2002 to 2011. He was later Australian High Commissioner to the United Kingdom from 2013 to 2014, and List of Austral ...

Mike Rann
handed back title to 21,000 square kilometres of land to the Maralinga Tjarutja and Pila Nguru people. The land, north-west of
Adelaide Adelaide ( ) is the capital city A capital or capital city is the municipality holding primary status in a Department (country subdivision), department, country, Constituent state, state, province, or other administrative region, usually ...

Adelaide
and abutting the
Western Australia Western Australia (abbreviated as WA) is a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper), ''The State'' (newspape ...

Western Australia
border, was then called the Unnamed Conservation Park. It is now known as
Mamungari Conservation Park Mamungari Conservation Park (formerly known as Unnamed National Park, Unnamed Conservation Park and also known as the Unnamed Biosphere Reserve) is a protected area located in South Australia within the southern Great Victoria Desert and northern ...
. It includes the
Serpentine Lakes The Serpentine Lakes is a chain of salt lakes in the Great Victoria Desert of Australia. It runs for almost along the border between South Australia and Western Australia. When full, the lakes cover an area of . Most of it is located in the Mam ...
, and was the largest land return since 1984. At the 2004 ceremony Rann said the return of the land fulfilled a promise he made to Archie Barton in 1991 when he was Aboriginal Affairs Minister, after he passed legislation to return lands including the sacred
Ooldea Ooldea is a tiny settlement in South Australia. It is on the eastern edge of the Nullarbor Plain, west of Port Augusta, South Australia, Port Augusta on the Trans-Australian Railway. Ooldea is from the bitumen Eyre Highway. History It was the ...
area (which also included the site of Daisy Bates' mission camp) to the Maralinga Tjarutja people. The Maralinga Tjarutja lands now total 102,863 square kilometres.


2005 – Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagalk

The Aboriginal peoples of the
Wimmera The Wimmera is a region In geography Geography (from Ancient Greek, Greek: , ''geographia'', literally "earth description") is a field of science devoted to the study of the lands, features, inhabitants, and phenomena of the Earth and ...

Wimmera
region of Western Victoria won recognition of their native title on 13 December 2005 after a ten-year legal process commenced in 1995 when they filed an application for a determination of native title in respect of certain land and waters in Western Victoria. It was the first successful native title claim in south-eastern Australia and in Victoria, determined by Justice
Ron Merkel Ron Merkel is an Australian jurist, who was formerly a Judge of the Federal Court of Australia The Federal Court of Australia is an Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country ...
involving Wotjobaluk, Jaadwa, Jadawadjali,
Wergaia The Wergaia or Werrigia people are an Aboriginal Australian group in the Mallee (Victoria), Mallee and Wimmera regions of north-Western Victoria (Australia), Victoria, made up of a number of clans. The people were also known as the Maligundidj (i ...
and Jupagalk people.. In his reasons for judgment Justice Merkel explained the significance of his orders: ::"The orders I propose to make are of special significance as they constitute the first recognition and protection of native title resulting in the ongoing enjoyment of native title in the State of Victoria and, it would appear, on the South-Eastern seaboard of Australia. These are areas in which the Aboriginal peoples suffered severe and extensive dispossession, degradation and devastation as a consequence of the establishment of British sovereignty over their lands and waters during the 19th century."


2005 – Noongar

In 2005 the Federal Court brought down a judgment recognising the native title of the
Noongar The Noongar (, also spelt Noongah, Nyungar, Nyoongar, Nyoongah, Nyungah, Nyugah, Yunga) are Aboriginal Australian Aboriginal Australians are the various Indigenous peoples Indigenous peoples, also referred to as First people, Aborigi ...
people over the
Perth Perth () is the list of Australian capital cities, capital and largest city of the Australian state of Western Australia (WA). It is Australia's list of cities in Australia by population, fourth-most populous city, with a population of 2.1 mi ...
metropolitan area. Justice Wilcox found that native title continues to exist within an area in and around Perth. It was the first judgment recognising native title over a capital city and its surroundings. The claim area itself is part of a much larger area included in the "Single Noongar Claim", covering the south-western corner of Western Australia. An appeal was subsequently lodged and in 2008 the Full Court of the Federal Court upheld parts of the appeal by the Western Australian and Commonwealth governments against Justice Wilcox's judgment..


2008 – Blue Mud Bay sea rights

The 2008 decision by the High Court decided the '' Blue Mud Bay sea rights case'', establishing a precedent for sea rights over an
intertidal zone The intertidal zone, also known as the foreshore or seashore, is the area above water level Water level, also known as gauge height or stage, is the elevation of the free surface of a sea, stream, lake or reservoir relative to a specified ve ...
for the first time. The
Yolgnu The Yolngu or Yolŋu () are an aggregation of Aboriginal Australian Aboriginal Australians are the various Indigenous peoples of the Mainland Australia, Australian mainland and many of its islands, such as Tasmania, Fraser Island, Hinchinb ...
people of Baniyala were involved in this case, which involved Blue Mud Bay in East Arnhem Land.


2007 & 2009 amendments

In 2007 the Howard Government passed the ''
Native Title Amendment Act 2007 Native may refer to: People * Jus soli, citizenship by right of birth * Indigenous peoples, peoples with a set of specific rights based on their historical ties to a particular territory ** Native Americans (disambiguation) In arts and entertai ...
'', and the ''Native Title Amendment (Technical Amendments) Act'' 2007, a package of coordinated measures and technical amendments to improve the performance of the native title system. These are aimed at making the native title process more efficient and to speed up the determination of whether native title exists on the 580 claims that had been registered but not yet determined. The ''Native Title Act 1993'' was further amended by the Rudd Government by the ''
Native Title Amendment Act 2009 Native may refer to: People * Jus soli ''Jus soli'' ( , , ; meaning "right of soil"), commonly referred to as birthright citizenship, is the right Rights are legal Law is a system A system is a group of Interaction, interacting ...
''. It allows the Federal Court to determine who may mediate a claim, whether that be the court itself, the Native Title Tribunal, or otherwise.


Further significant determinations


2020 – Yamatji

Yamatji Marlpa Aboriginal Corporation was involved in a large native title claim from 1996, based on the ''Native Title Act 1993'', resulting in an historic determination in February 2020, involving both native title and an ILUA, covering an area of in Western Australia.


2020 – Gurindji, Wave Hill Station

A claim was lodged in 2016 by the
Central Land Council The Central Land Council is a land council Land councils, also known as Aboriginal land councils, or land and sea councils, are Australian community organisations, generally organised by region, that are commonly formed to represent the Indigeno ...
on behalf of the
Gurindji people The Gurindji are an Aboriginal Australian Aboriginal Australians are the various Indigenous peoples of the Mainland Australia, Australian mainland and many of its islands, such as Tasmania, Fraser Island, Hinchinbrook Island, the Tiwi Islan ...
s in the area, as there were mining interests in area covered by
Wave Hill Station Wave Hill Station, most commonly referred to as Wave Hill, is a pastoral lease A pastoral lease, sometimes called a pastoral run, is an arrangement used in both Australia Australia, officially the Commonwealth of Australia, is a ...
's pastoral lease. On 8 September 2020, the
Federal Court of Australia The Federal Court of Australia is an Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmani ...
recognised the native title rights of the Gurindji people to of the Wave Hill Station, allowing them to receive royalties as compensation from resource companies who explore the area. Justice Richard White said that the determination recognised Indigenous involvement (Jamangku, Japuwuny, Parlakuna-Parkinykarni and Yilyilyimawu peoples) with the land "at least since European settlement and probably for millennia". The court sitting took place nearly south of Darwin, and descendants of Vincent Lingiari and others involved in the Wave Hill walk-off celebrated the determination. The owners will participate in the mining negotiations and exploration work, from which royalties may flow in the future, but just as important is the right to hunt, gather, teach and perform cultural activities and ceremonies, and allow the young people to connect with their land.


Native title rights and interests

Native title concerns the interaction of two systems of law: * The traditional laws and customs that regulated the lives of Aboriginal and Torres Strait Islanders prior to the colonisation of Australia by the British ("Aboriginal customary law"). * The English-derived legal system, which was brought to Australia with colonisation, which includes the common law and enacted laws ("Australian law"). Before Mabo 2, British imperial law was based upon the designation of Australia as a "settled" colony, rather than a conquered one. The assumption of ''terra nullius'' meant that the laws of England were imported and would apply, as there were no local laws to be respected (as there were in "conquered" or "ceded" colonies). Native title is the term adopted in Australian law to describe the rights to land and waters possessed by Indigenous Australians under their customary laws that are recognised by the Australian legal system. Native title is able to be possessed by a community or individual depending on the content of the traditional laws and customs; it is inalienable other than by surrender to the Crown; and rights over the land may range from access and usage rights to rights of exclusive possession. Native title rights and interests are based on laws and customs that pre-date the British acquisition of sovereignty; they are distinct from the rights granted by government such as statutory land rights of the kind found in the ''Land Rights Act''. Native title rights and interests may exist over land and waters to the extent that they are consistent with other rights established over the land by law or executive action. According to the National Native Title Tribunal (2013): "The native title rights and interests held by particular Aboriginal people will depend on both their traditional laws and customs and what interests are held by others in the area concerned. Generally speaking, native title must give way to the rights held by others. The capacity of Australian law to recognise the rights and interests held under traditional law and custom will also be a factor... The source of native title is the system of traditional laws and customs of the native title holders themselves." Native title rights and interests may include the right to live in an area or to access it for traditional purposes; to visit and protect sacred sites; to hunt, fish or gather resources; or to teach law and custom. Exclusive possession can only be recognised over certain parts of Australia, such as vacant Crown land, or areas already held by Indigenous Australians. A 2015 review of the ''Native Title Act'' by the Australian Law Reform Commission reported that "Courts have indicated that native title is not to be understood in terms equivalent to common law property interests, but they often still tend to draw on these concepts... The prevailing view of the nature and content of native title is hybrid, drawing on traditional laws and customs for content, but also at times idiosyncratically adopting common law terms to describe the nature or character of the rights". It is a complex area of law. The Act continues to be reviewed and amended.


Native title determinations

The National Native Title Register (NNTR), maintained by the NNTT, is a land registration, register of approved native title determinations. A determination can be that native title does or does not exist. As part of the determination of native title, native title groups are required to nominate a Native Title Prescribed Body Corporate to hold (as trustee) or manage (as agent) their native title. Following a determination, Prescribed Bodies Corporate are entered onto the NNTR. At this point, the corporation becomes a Registered Native Title Body Corporate (RNTBC). On 1 July 2011, the 160 registered determinations of native title covered some (approximately 16 per cent) of the land mass of Australia; and registered Indigenous land use agreements (ILUAs) covered about (about 16 per cent) of the land mass, as well as about of sea.


Mediation

Native title in Australia frequently involves mediation between native title parties and other groups with an interest in native title, such as the Australian Government, state and territory governments, miners and pastoralists. Amendments to the NTA made in 2012 meant that the NNTT would henceforth only conduct native title claim mediation by referral from the Federal Court, which may also order mediation by other agencies or persons. The purpose of mediation is to assist parties to clarify the issues in dispute, to explore options for settlement and to reach agreement. Mediation is a structured process, with the intention of a mutually agreed outcome rather than having a decision imposed by a judge.


Alternative agreements

Alternative settlements (also termed "broader settlements") may be negotiated out of court, often being resolved more quickly and efficiently than via the court process under the ''Native Title Act''. They can give traditional owner group recognition in areas where native title rights have been extinguished, or where it is difficult for a group to prove that it persists. Such agreements are resolved through negotiation, and recognition of traditional ownership and various other land rights in land may be achieved without an actual native title determination. Examples of such arrangements are the Indigenous land use agreement or, in Victoria, a settlement under the ''Traditional Owner Settlement Act 2010'' (TOSA). Alternative settlements agreements can be made alongside the ''Native Title Act'', but usually the traditional owners are required to withdraw any existing native title claims. Such settlements can include any matters agreed to by all parties, which may included recognition of traditional owner rights, grants of freehold for specified purposes, or the right to be consulted and participate in natural resource management.


Types


ILUAs

An Indigenous land use agreement (ILUA) is a voluntary agreement between a native title group and others about the use of land and waters, provided for under the Act. They must be about native title matters, but can be about other matters. Text was copied from this source, which is available under
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They enable people to negotiate flexible and pragmatic agreements to suit their particular circumstances. Text was copied from this source, which is available under
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An ILUA may exist over areas where native title has, or has not yet, been determined; may be entered into regardless of whether there is a native title claim over the area or not; and may be part of a native title determination, or settled separately from a native title claim. An ILUA is binding between a native title group or Native title prescribed body corporate, Registered Native Title Body Corporate/s (RNTBC) and other parties, and bind all persons holding native title in the area of the ILUA, regardless of whether they are parties or not. ILUAs are an alternative to making an application for native title determination, generally processed within less than six months, and may deal with a wide range of issues, including such topics as: *native title holders agreeing to a future development; *how native title rights coexist with the rights of other people; *access to an area; *protection of Aboriginal Australian sacred site, sacred sites *extinguishment of native title; *compensation; *employment and economic opportunities for native title groups; *cultural heritage; and *mining. There are three types of ILUAs: Body Corporate Agreements, Area Agreements and Alternative Procedure Agreements.


TOSA settlements (Vic.)

The ''Traditional Owner Settlement Act 2010'' (TOSA) "provides for an out-of-court settlement of native title. The Act allows the Victorian Government to recognise traditional owners and certain rights in Crown land. In return for entering into a settlement, traditional owners must agree to withdraw any native title claim, pursuant to the Native Title Act 1993 (Cth) and not to make any future native title claims". Text was copied from this source, which is available under
Attribution 4.0 International (CC BY 4.0)
licence.


Traditional owner

Alternative agreements require that the claimants demonstrate that they are the "traditional owners" of the country in question. However, this term has sometimes proved problematic in law: it is not mentioned in the NTA, but Indigenous Land Use Agreements (see below), which are provided for under the Act, require that the Indigenous group or groups party to the agreement assert "traditional ownership" of the area. The definition of the term "wikt:traditional owner, traditional owner" varies among jurisdictions. According to the ''Aboriginal Land Rights Act 1976'', the term refers to "a local descent group of Aboriginals who: (a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and (b) are entitled by Aboriginal tradition to forage as of right over that land". A similar definition was incorporated in the ''Environment Protection and Biodiversity Conservation Act 1999'' (EPBC), but legislation differed in various states, such as the South Australian legislation referring to a "Aboriginal person who has, in accordance with Aboriginal tradition, social, economic and spiritual affiliations with, and responsibilities for, the lands or any part of them". A further complexity is introduced in a form of ranking of rights, for example in New South Wales, a traditional owner must be both born in the country and have a cultural association with the land. Peter Sutton (anthropologist), Peter Sutton distinguishes between "core" and "contingent" rights, which he says are recognised among most Aboriginal peoples. So there are sometimes challenges in finding "the right people for the right country", complicated by the fact that there are cases where both primary and secondary rights holders are described by the term. Distinguishing between "historical people" and others who have been custodians of the land for many generations add to the complexity. In the case of some agreements, historical people may be recognised as parties even when they don't have "traditional" associations with the land. The term Traditional Owner Corporation (TOC) is used to refer to various types of Aboriginal and Torres Strait Islander corporations. Such a corporation is usually the negotiating body when determining native title outcomes. (A TOC is distinct from the Registered Native Title Body Corporate (RNTBC), which manages the land after a native title determination has been made. Text was copied from this source, which is available under
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.
) In Victoria, a "traditional owner group" is defined in the ''Traditional Owner Settlement Act 2010'' to include those people recognised by the Attorney-General as traditional owners, based on their traditional and cultural associations with the land, and there are government guidelines detailing what these terms mean. They state that ''traditional'' "Denotes linkages with the past that are actively kept alive by the traditional owner group members. It is not restricted to features or activities understood to be fully continuous with, and identical to, such activities or features in pre-contact Aboriginal society". Text was copied from this source, which is available under
Attribution 3.0 Australia (CC BY 3.0 AU)
licence.
Apart from the legal definitions, the terms traditional owners or traditional custodians of the land are included in Acknowledgment of Country wording which is used to pay respects to the people of that Country.


Examples of alternative settlements

*South West Native Title Settlement for Noongar people in Western Australia aims to resolve native title claims in exchange for statutory recognition of the Noongar people as the traditional owners of south-Western Australia. it is the largest native title settlement in Australian history, affecting about 30,000 Noongar people and encompassing around in south-western Western Australia. It has been described as "Indigenous treaties in Australia, Australia's first treaty". *An Indigenous Land Use Agreement (ILUA) was agreed with the Kaurna Yerta Aboriginal Corporation (KYAC) in Adelaide, South Australia and effected on 19 November 2018.Kaurna People Native Title Settlement ILUA
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By state and territory


ACT

No native title claim has ever been granted in the ACT, because of the lack of historical records enabling such a determination to be made.


South Australia

An Indigenous Land Use Agreement (ILUA) was agreed with the Kaurna Yerta Aboriginal Corporation (KYAC) and effected on 19 November 2018. The agreement was among the South Australian government, the federal government and the Kaurna people, with formal recognition coming after the Federal Court judgement, 18 years after lodgement. This was the first claim for a first land use agreement to be agreed to in any Australian capital city. The rights cover Adelaide's whole metropolitan area and includes "17 parcels of undeveloped land not under freehold". Some of the land is Crown land, some belongs to the state government and some is private land owned by corporations. Justice Debra Mortimer said it would be "the first time in Australia that there [had] been a positive outcome within the area of (native title) determination".


Victoria

, four native title claims have been determined in Victoria; three of them resulted in the recognition of native title by agreement via a consent determination in the Federal Court. In ''Yorta Yorta v Victoria'' (see above) in 2003, native title was determined not to exist by the Federal Court. The native title determinations are: Text was copied from this source, which is available under
Attribution 4.0 International (CC BY 4.0)
licence. (State
here
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*Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Yupagalk Peoples (known as Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v Victoria, the "Wimmera claim - see above) (2005) *Gunditjmara People (2007) *Gunaikurnai People (October 2010) Although the Yorta Yorta people's claim did not meet the legal standard for native title under the Act, in 2004 the Victorian Government entered into a Cooperative Management Agreement with the Yorta Yorta Nation Aboriginal Corporation, which was the first Victorian agreement reached outside the native title process, and applies to designated areas of Crown land in north central Victoria, with direct engagement between Yorta Yorta, Parks Victoria and the Department of Environment, Land, Water and Planning (DELWP). In October 2010, the State entered into a Traditional Owner Land Management Agreement with the Yorta Yorta, which established the Yorta Yorta Traditional Owner Land Management Board to jointly manage Barmah National Park (a TOSA settlement, under the ''Traditional Owner Settlement Act 2010'').


Western Australia

An alternative settlement, the South West Native Title Settlement for Noongar people in Western Australia, aims to resolve native title claims in exchange for statutory recognition of the Noongar people as the traditional owners of south-Western Australia. it is the largest native title settlement in Australian history, affecting about 30,000 Noongar people and encompassing around in south-western Western Australia. It has been described as "Indigenous treaties in Australia, Australia's first treaty". The ''Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016'' recognises Noongar ownership, and the settlement includes six individual Indigenous Land Use Agreements (ILUAs). On 19 December 2019, the Federal Court upheld the Native Title Registrar’s decision to register the six ILUAs, and settlement is expected to begin in the second half of 2020.


National Native Title Council

The National Native Title Council (NNTC) is a not-for-profit organisation whose website states that it is the "peak body for the native title sector". Its members include regional Native Title Representative Bodies (NTRBs), Native Title Service Providers (NTSPs), local Prescribed Body Corporates (PBCs) and Traditional Owner Corporations (TOCs).


Human rights reports

Under the ''Native Title Act 1993'', the Aboriginal and Torres Strait Islander Social Justice Commissioner was required to prepare an annual report to the Attorney-General for Australia, Attorney-General on the operation of the NTA and its effect on the exercise and enjoyment of human rights of Aboriginal and Torres Strait Islander peoples, and to report on other matters as and when requested by the Attorney-General. Text was copied from this source, which is available under
Attribution 4.0 International (CC BY 4.0)
licence. (Statemen
here
)
The objectives of the Commissioner were to provide and promote a human rights perspective on native title; to assist in developing more efficient native title processes; and to advocate for the co-existence between Indigenous and non-Indigenous interests in land based on compatible land use. All of the reports from 1994 to 2016 have been published online. Changes brought about by the ''Human Rights Legislation Amendment Act 2017'' removed the statutory obligation for an annual Social Justice and Native Title Report such as those produced up to and including 2016.


See also

* Aboriginal land rights in Australia * Australian Aboriginal Sovereignty * Australians for Native Title and Reconciliation (ANTaR) * List of native title claims in South Australia * Native title legislation in Australia * Outstation movement


References


Further reading

* – Summary of points in the land rights movement and native title for a Yr 11 course.
PDF

PDF
*
AIATSIS summary
*

* * * The Native Title Infobase includes selected material commencing from 1839 to the present day - online catalogue only * (1994– )
Native title research and resources
at Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) * – includes all applications relating to native title and Indigenous Land Use Agreements.

* His Honour quotes Kirby in Fejo, who dismissed an argument that the Letters Patent establishing the Province of South Australia, Letters Patent Proviso provides any protection for the rights of Aboriginal people to the occupation or enjoyment of their lands. – refers to ''Fejo v Northern Territory'' (1998) 195 CLR 96. (This case is based on s 61 ''Native Title Act 1993'' (Cth).)


External links

* (Latest version as of July 2020) * * {{Aboriginal Australians Native title in Australia, Aboriginal title, *