Contributor: Angus Frith
Protection for Aboriginal and Torres Strait Islander cultures, languages, heritage and peoples. The 1992 Mabo decision held that the Australian legal system is capable of co-existing with other land ownership systems. This led to the Native Title Act 1993 (Cth) and the Wik decision 1996.
The recognition of native title
Indigenous Australians have, since time immemorial, observed a variety of systems of law that were not recognised by Australian law until relatively recently.
In June 1992, the High Court, in Mabo v Queensland (No 2)  HCA 23 (“Mabo Decision”), held that other systems of law could co-exist with the Australian legal system. The court said that the common law recognised rights relating to land and waters that arise under a legal system created by Murray Islanders in the Torres Strait before British sovereignty. Indigenous legal systems were not necessarily wiped out or extinguished by British sovereignty in 1788. Those legal systems may give rise to rights and interests in land and waters across Australia, which are called native title. Governments must take this into account when making land-use decisions.
Native title is ultimately a communal title, comprising a bundle of rights that relate to land and waters. It is recognised if (among other things), under traditional laws and customs, the claimants can show a continuing connection with the land and waters. As well, native title must not have been extinguished by any inconsistent government act. For example, granting a freehold title wipes out native title.
Native title is different in different circumstances. It may give people the right to fish in a river, or to hold a ceremony at a particular place. Two or more Indigenous communities may share native title rights and interests in a particular place. Native title may also amount to the equivalent of absolute possession, including the right to exclude other people. The full range of native title rights and interests across the country may, in time, be recognised through agreements or by the courts.
The Native Title Act 1993 (Cth) (“Native Title Act”) resulted from intense negotiations between Indigenous groups and the federal government after the Mabo Decision. It provides a scheme for:
• recognising and protecting native title;
• validating previous grants of title that are inconsistent with the continued existence of native title;
• validating future acts that may affect native title;
• achieving court determinations of the existence of native title.
The legislation seeks to clarify the process of recognising and protecting native title. The Act created the National Native Title Tribunal, which decides whether certain future acts, such as granting a mining licence, may be done. The Federal Court decides disputed native title matters, and attempts to mediate them. Some issues remained unresolved, including:
• What is the content of particular native titles?
• What evidence is needed to substantiate a claim for native title? How does a group show a continuous connection to land?
• Which acts of government have extinguished native title?
• What compensation is payable where native title has been extinguished?
The issue of whether a pastoral lease granted by a government extinguishes native title was dealt with in 1996 by the High Court in Wik Peoples v Queensland (1996) 187 CLR 1 (“Wik Decision”). The court decided that native title can co-exist with certain pastoral leases; granting these leases does not extinguish all native title rights.
The court also decided that if there is conflict between the two holders of rights over what activities are allowed to take place on a piece of land, activities allowed by the pastoral lease prevail over those conferred by the underlying native title.
The court’s decision means that while pastoral leases are unaffected by traditional rights over land, some native title rights might survive, potentially including the right to perform a ceremony, or to gather foods or medicines.
In Queensland and Western Australia in particular, some pastoralists claimed that the Wik Decision left an unworkable situation that had to be resolved by further Commonwealth legislation. After nearly two years of intense political discussion, and the longest debate in its history, the Senate passed the Native Title Amendment Act 1998 (Cth) (“Amendment Act”).
Although the Wik Decision has little direct impact on Victoria, the Amendment Act had a major effect on native title in the state, including that the grant of any freehold title or exclusive lease extinguishes native title. The Amendment Act also limited the consideration of native title in processes and decisions concerning land use in reserves, including national parks, which contain much of the land potentially subject to native title in Victoria. The scope and effect of the right to negotiate about mining was reduced, and the balance of rights set out in the Native Title Act shifted away from the protection and recognition of native title.
Subsequent High Court decisions, such as Western Australia v Ward  HCA 28, have clarified what it takes to extinguish native title. In order to determine whether native title rights have been extinguished, it is necessary to identify the native title rights and compare them with the particular rights granted by, for example, a pastoral lease, a mineral lease or the creation of a reserve. Native title is extinguished to the extent of any inconsistency between the rights. Therefore, native title can be wholly or partially extinguished.
To be recognised by the common law, native title rights must be related to land or waters. Thus, maintaining or protecting Aboriginal cultural knowledge cannot be protected as a native title right.
On 24 August 2016, the Federal Court made the first litigated determination of the amount of compensation payable for invalid extinguishment of native title, in the case of Griffiths v Northern Territory (No 3)  FCA 900. This decision, which raised significant implications for the resolution of other native title matters, was appealed (see Northern Territory of Australia v Griffiths  FCAFC 106). The full court’s decision refines the required approach to determining the appropriate amount of compensation for the extinguishment of native title.
The first native title claim to be determined in Victoria was the Yorta Yorta people’s claim over land and waters near Echuca and Shepparton. The Federal Court found that native title had been washed away by the “tide of history”. On appeal, the High Court (in Members of the Yorta Yorta Aboriginal Community v Victoria  HCA 58) held that the Federal Court was entitled to make that decision. This High Court decision has substantial implications for the recognition of native title generally, and in Victoria in particular.
To establish native title, claimants must show that as a society they have traditional laws and customs relating to land that are substantially identical with those that existed at sovereignty in 1788. In addition, the observable activities of the claim group must be more than coincidental; they must be based on traditional laws and customs that have a “normative” content. This means that the traditional laws and customs must guide the behaviour of the group. If an Aboriginal society ceases to exist as a society, the laws and customs that support native title rights also cease to exist. This means that native title claimants in more settled parts of Australia might find it very difficult to establish that they have native title.
However, in December 2005 the Federal Court, with the consent of all parties, made the first Victorian determination that native title exists, in favour of the Wimmera Clans. By June 2017, four determinations that native title exists had been made in Victoria, including those in favour of the Gunditjmara people in south-west Victoria (Lovett on behalf of the Gunditjmara People v Victoria  FCA 474) and in favour of the Gunai/Kurnai people in Gippsland (Mullett on behalf of the Gunai/Kurnai People v Victoria  FCA 1144).
Another option for resolving native title claims is for government and other parties to negotiate land justice outcomes that are not based on the recognition of native title. In 2009, the Victorian Government adopted a Native Title Settlement Framework (“Framework”), which has been legislated through the Traditional Owner Settlement Act 2010 (Vic).
The Framework creates a streamlined approach to settling native title claims out of court through interest-based negotiations. Such an approach may lead to more settlements, as well as to stronger long-term relationships between the state and native title parties (called “traditional owners” in the Framework). The Framework’s approach should also bring about better outcomes for traditional owners, and improved management of Crown land.
One possible outcome of negotiations under the Framework is the joint management of national parks (and other land) by traditional owners and state agencies. This would involve traditional owners sitting on the national parks’ boards of management. It could also involve the transfer of ownership of the parks to traditional owners.
Another possibility is that land can be transferred to traditional owners for economic and social purposes; for example, as ordinary freehold for housing or commercial purposes.
Other possible components of individual agreements under the Framework include a land-use activity regime that accommodates traditional owners’ rights and interests, as well as the interests of other parties, while allowing certain activities to proceed on Crown land. Under the Framework, individual agreements can accommodate traditional owners’ need to access the land and use its natural resources, such as flora and fauna, for customary purposes. Opportunities for the commercial use of natural resources may also be available.
Framework agreements also address the recognition and strengthening of Aboriginal culture in Victoria and provide better mechanisms for traditional owners to protect their cultural heritage.
With the Framework, the Victorian Government aims to address the land justice aspirations of Victorian traditional owners and to provide finality and certainty for all parties involved in native title matters relatively quickly.
The first agreement under the Framework was made by the Gunai/Kurnai people on 22 October 2010. An agreement with the Dja Dja Wurrung people, whose Country is around Bendigo, commenced on 25 October 2013. The current Victorian Government continues to negotiate agreements under the Framework.
More information about the Traditional Owner Settlement Act 2010 (Vic) and the Dja Dja Wurrung Land Use Activity Agreement is available from the Victorian Government Department of Justice and Regulation’s website (www.justice.vic.gov.au). Further information about native title is available from First Nations Legal and Research Services (www.fnlrs1.com), which provides legal and other services to Victorian native title claimants, native title holders and traditional owners.