Land rights, Native Title and Indigenous land use agreements

Land rights, Native Title and Indigenous land use agreements

Fred Tanner

The Merriam people of the Torres Strait are ‘entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands’1


For the first 200 years of European settlement in Australia, governments and the courts refused to acknowledge Aboriginal traditional rights over lands. During that time, Australia had harboured two ‘societies’ that were separated by barriers of inequity and injustice, one with human and citizen rights and the other with none. Pastor Bill Hollingworth, in his address to the Council of Aboriginal Reconciliation, said: ‘Our moral and legal rights have been neglected.’2 It is not surprising then that Professor Garth Nettheim considered the High Court judgment in Mabo ‘to be one of the most fundamental ever to have been considered by the High Court – fundamental at least in the sense of going to the very foundation of the Australian nation’3 or that, as a consequence of that judgment, ‘[t]he legal and political position of Aboriginal and Torres Strait Islander people in relation to the non-Aboriginal Society must now be significantly different in a variety of ways’.4

Prior to the Mabo decision, the implementation of land law was dealt with by the colonising legislatures. The myth of terra nullius perpetuated that Aboriginal and Torres Strait Islander people had no valid interests in land outside of what was conferred by statute.5 The law applied in Australia was that of the British Empire, which relied upon the presumption that the original inhabitants had no legitimate rights to land.6

In Millirpum v Nabalco Pty Ltd (Gove), which was brought in the Northern Territory, the Yirrkala people of the Gove Peninsula sought to halt mining on their traditional lands. The action failed. Blackburn J concluded that the ‘doctrine of communal Native Title does not form and never has formed, part of the law of any part of Australia’.7 His Honour reached this conclusion after an examination of Native Title decisions in other common law jurisdictions, which it is now widely concluded were misconceived.8 Blackburn J recognised that groups of Aborigines in the Gove Peninsula area of the Northern Territory had a ‘subtle and elaborate’ system of law, highly adapted to their country,9 and links to identifiable tracts of land that he described as primarily spiritual – but he also held that the doctrine of communal Native Title did not form and had never formed part of the law of any part of Australia. The decision was not appealed and the focus in Australia shifted for the next twenty years to securing Indigenous rights to land through legislation (land rights legislation) rather than by action in the courts.

In Gove, Blackburn J followed the decision of the Privy Council in Cooper v Stuart, despite the evidence. His judgment was criticised for supporting the terra nullius argument and for holding that communal title was never part of Australian common law.10

Australia had been considered a ceded rather than conquered colony because of the European view that there was no unified political and legal system or authoritative representative with whom to negotiate a settlement and the terms of colonisation.11

In Mabo, Brennan J stated:

The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of municipal law that territory (although inhabited) could be treated as a ‘desert uninhabited’ country. The hypothesis being that there was no local law already in existence in the territory … Ex hypothesi, the indigenous inhabitants of the settled colony … were thus taken to be without laws, without sovereign and primitive in their social organisation.12

Historically, it had been accepted that the land in the new colony was vested in the Crown. This was based upon the feudal landholding system of England. In this regard, Calvin’s Case was considered the leading case.13 Although that case had nothing to do with the colonies, the judges expressed a view that a ‘new possession might be acquired, one by descent and the other by right of conquest’.14 Despite this, several subsequent cases showed contrasting views.15 In Dutton v Howell, for example, Sir Bartholomew Shower stated that ‘settlers in unoccupied lands should be treated differently from those in conquered territories’.16 On the other hand, Sir William Blackstone considered the concept of the power of the mother country over colonial possessions and concluded that settled colonies were those ‘where the lands are claimed by right of occupancy only finding them desert and uncultivated, and peopled from the mother country’. Further he stated that not all of the laws of England were applicable to the settled colonies and that only those laws that were suitable were adopted by the colonies.17

The above commentary shows differences of approach to the classification of Australia at the time of the arrival of the colonisers. How do you determine if there are inhabitants who, from a European standard, are considered to be primitive? Eighteenth-century jurist Vattel, argued ‘that a distinction should be made between “cultivated” and “uncultivated” lands in determining whether they could be obtained by conquest’.18 This formed the basis of the principle of terra nullius upon which Australia was considered to have been ‘settled’.

Land rights

Aboriginal people have occupied Australia for over 60,000 years and have evolved with the land, changing it and changing with it. Land is not only about the rocks, soil and minerals, but also a sustainable environment of which Aboriginal people are very much a part. Land for Aboriginal people is the core of their spirituality and sense of belonging; it is this concept that has been misunderstood. Europeans did not understand Aboriginal society and or their land ‘ownership’ system.

Native Title is the legal recognition of the rights and interests that Aboriginal people have in land and waters according to their traditions, laws and customs. A successful Native Title claim results in a determination setting out the rights and interests of the Native Title holders over the relevant piece of land.

By contrast, Aboriginal land rights arise under statutory schemes set up by federal, State and Territory parliaments. Statutory rights under these schemes are generally held by organisations representing the traditional owners of land. The concept of land rights for Aboriginal people provides a statutory basis whereby Aboriginal organisations can acquire title to land. Land rights legislation provides the strongest form of tenure for Aboriginal people, it provides inalienable Aboriginal freehold title to the land and the nearexclusive power to control development; however, it can be leased with the informed consent of traditional owners.

Land rights developed from the recommendation of Justice Woodward, Royal Commissioner into Aboriginal Land Rights, that lands be transferred to Indigenous peoples. The recommendation was applied in an inconsistent manner across the States and Territories, giving rise to the range of legislation that exists today.19

Indigenous Australians who make a land rights claim seek a grant of freehold or perpetual title to land from the relevant Commonwealth, State or Territory government. Land rights schemes are in place in the Northern Territory, Queensland, New South Wales, South Australia and Victoria. A title document to the land is issued and held by a community or an organisation, not by individuals. Restrictions may apply on selling or dealing with the land.

Native Title

The recognition of common law rights and interests of the Aboriginal and Torres Strait Islander people in land in 1992 and subsequent Native Title Act 1993 arguably provided a mechanism for the recognition of those rights and interests within the Australian legal system independent of the land rights legislative schemes.

The introduction of the Native Title Act 1993 (Cth) was seen as a mechanism for establishing a legislative regime to support the recognition of Native Title by the courts.20 The recognition in Australian law that some Indigenous people continue to hold rights to their lands and waters that come from their traditional laws and customs created a significant shift in the balance of power with respect to land.

Native Title exists as a bundle of rights and interests in relation to land and waters where the following conditions are met:

The Native Title Act 1993 also established the National Native Title Tribunal.22 The responsibilities of the Tribunal include processing claimant applications for the recognition of Native Title made by Indigenous Australians.

For Indigenous people, Native Title existed even without the enactment of the Native Title Act because it is a form of title recognised by the common law. Native Title is about their history, culture and law. However, for the purposes of the Native Title Act, it is only where Indigenous people can establish that they have continued to follow their traditional laws and customs and maintained a link with their country that has not been extinguished that they may succeed in obtaining a determination by the Court.

Applications for Native Title may include the following areas:

• vacant or unallocated Crown land;

• some reserve lands;

• some types of pastoral lease;

• some land held by or for Aboriginal people or Torres Strait Islanders;

• beaches, oceans, seas, reefs, lakes, rivers, creeks, swamps and other waters that are not privately owned.23

Native Title does not affect public access areas such as parks, recreation reserves and beaches, nor does it take away anyone’s valid rights and/or interests in land. Excluded are:

• residential freehold;

• farms held in freehold;

• pastoral or agricultural leases that contain grants of exclusive possession;

• residential, commercial or community purpose leases; and

• public works such as roads, schools or hospitals.24

Native Title rights claimed depend very much on the Native Title holders’ traditional laws and customs and the capacity of Australian law to recognise the rights and interests emanating from those traditional laws and customs. Common terminology used in Native Title applications include, the right to possess and occupy an area to the exclusion of all others (often called a right of exclusive possession), and supplementary to this the right to control access to, and use of, that area.25 Native Title rights claimed may also include a set of non-exclusive rights (where there is no right to control access to, and use of, the area). These may include the right to:

• live on the area;

• access the area for traditional purposes, such as camping or for ceremonies;

• visit and protect important places and sites on the area;

• hunt, fish and gather food or traditional resources such as water, wood and ochre on or from the area;

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