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Aboriginal law

Indigenous people living in Australia have, since time immemorial, observed a variety of systems of law, which were not recognised by Australian law until relatively recently.

In June 1992, the High Court, in Mabo v Queensland (No 2) [1992] HCA 23, held that other systems of law could co-exist with the Australian legal system. The court said that the common law recognised rights arising under a legal system – dealing with land ownership – that was created before British sovereignty by Murray Islanders in the Torres Strait. Indigenous legal systems were not necessarily wiped out or extinguished at or after British sovereignty. Those legal systems may give rise to rights and interests in land and waters across Australia, which are called native title. Governments must take it into account in making land-use decisions.

Native title is ultimately a communal title, comprising a bundle of rights with respect 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. As well, native title must not have been extinguished by any inconsistent government act. For instance, granting a freehold title wipes out native title.

Native title is different in different circumstances. It may give people rights to fish in a river, or to hold a ceremony at a particular place. Two or more Indigenous communities may share native title over 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 by agreements or by the courts.

Native Title Act

The Native Title Act 1993 (Cth) resulted from intense negotiations between Indigenous groups and the federal government after the Mabo decision. It provides a scheme for:

  • the recognition and protection of 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; and
  • achieving court determinations of the existence of native title.

The legislation seeks to clarify the native title process. The Act created the National Native Title Tribunal, which has a role in determining whether certain future acts may be done. The Federal Court decides disputed native title matters, as well as attempting 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 Wik decision

The issue of whether a grant of a pastoral lease by a government extinguishes native title was dealt with in 1996 by the High Court in Wik Peoples v Queensland [1996] 187 CLR 1 ("the Wik decision"). The court decided that native title could co-exist with certain pastoral leases; their grant does not extinguish all native title rights. If there is conflict between the two co-existing holders of rights over what activity is allowed, activities allowed by the grant of the pastoral lease prevail over those conferred by the underlying native title.

While the pastoral lease is unaffected by traditional rights over land, some native title rights survive. These might include rights to perform 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”). Among other things, it allows the upgrade of activities that can be undertaken on pastoral leases, without regard to native title issues.

Although the Wik decision has little direct impact on Victoria, the Amendment Act has had a major effect on native title in the state. Any freehold title or exclusive lease is deemed to have extinguished native title. The Amendment Act limits the consideration of native title in processes and decisions concerning land use in respect of 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 is reduced, and the balance of rights set out in the Native Title Act is shifted away from the protection and recognition of native title.

Subsequent High Court decisions, such as Western Australia v Ward [2002] 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, for example, by a pastoral lease, by a mineral lease, or by 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.

In order to be recognised by the common law, native title rights must be in relation to land or waters. Thus, maintaining or protecting Aboriginal cultural knowledge cannot be protected as a native title right.

Native title in Victoria

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 judge found that native title had been washed away by the “tide of history”. After a series of appeals, the High Court (in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (theYorta Yorta decision”)) found that the judge was entitled to make that decision. The High Court decision, in late 2002, 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 in relation 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 decision means that native title claimants in more settled parts of Australia, such as Victoria, might find it very difficult to establish that they have native title. However, since the Yorta Yorta decision, the Victorian Government has continued to negotiate native title matters, which is a slow process.

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 July 2012, four determinations that native title existed 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 State of Victoria [2007] FCA 474) and in favour of the Gunai/Kurnai People in Gippsland (Mullett on behalf of the Gunai/Kurnai People v State of Victoria [2010] FCA 1144).

Victorian Native Title Settlement Framework

Another option is for government and other parties to negotiate towards non-native title outcomes – that is, land justice outcomes not based on the recognition of native title. In June 2009, the Victorian Government announced that it had adopted a Victorian Native Title Settlement Framework (“the Framework”), which was produced as a result of the work of a steering committee comprising representatives of the Victorian Traditional Owners’ Land Justice Group and state officers, and chaired by Professor Mick Dodson.

One of the aims of the Framework is to ensure 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 (who are called “traditional owners” in the Framework documents). It should also assist with better outcomes for traditional owners, and improved management of Crown land.

One possible outcome of negotiations under the Framework is joint management of national parks and other land by the relevant traditional owners and state agencies. This would involve having a majority of traditional owners on boards of management for the parks, and possibly, 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, including as ordinary freehold for housing or commercial purposes.

Other outcomes 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. Further, traditional owners’ access to and use of natural resources, such as flora and fauna, for customary uses can be recognised. Opportunities for commercial use of natural resources may also be available.

Framework agreements will 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 state aims to provide finality and certainty for all parties involved in native title matters relatively quickly, and to address the land justice aspirations of Victorian traditional owners. The first agreement under the Framework was made by the Gunai/Kurnai People on 22 October 2010 at the same time as their determination of native title. An agreement was reached with the Dja Dja Wurrung people, whose country is around Bendigo, on 28 March 2013. The current Victorian Government has committed to continue negotiating agreements under the Framework.

More information about the Framework can be obtained at www.justice.vic.gov.au (go to “Your rights”, then select “Native title”) and www.ntsv.com.au.

Native Title Act :: Last updated: Fri Apr 4th 2014