Where our laws come from

Aboriginal and Torres Strait Islander 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) [1992] 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 that continue to the present day. Aboriginal and Torres Strait Islander legal systems were not necessarily extinguished by British sovereignty in 1788. Those legal systems may give rise to what is often called a ‘bundle of rights’ that include rights and interests in land and waters across Australia, which are called native title. Native title can only be determined over Crown land (i.e. land owned by the government). Governments must, in certain circumstances, take this into account when making decisions about how Crown land is used.

Courts will recognise that native title exists if, among other things, the claimants can show they have rights and interests in the land under traditional laws and customs and that these laws and customs are currently acknowledged and observed, demonstrating a continuous connection since colonisation. Further to this, native title must not have been extinguished by any inconsistent government act. For example, a grant of a freehold title extinguishes native title.

Native title gives those who hold it the right to use and access their land for traditional and communal purposes, such as to camp, hunt, use certain resources and/or use the land and waters for cultural purposes. Native title rights differ between communities. Also, rights over a particular place can be shared by two or more communities.

Courts can also recognise exclusive possession native title, which recognises the right for the native title holders to exclude other people from their areas of land or water.

The Native Title Act 1993 (Cth) (‘Native Title Act’) was introduced in 1993 to provide clarity after the Mabo decision by governing how native title rights are recognised and dealt with.

The Native Title Act and associated regulations provide a scheme for, but not limited to:

recognising and protecting native title through court determinations; and

dealing with ‘future acts’ that may affect native title.

The Native Title Act established the National Native Title Tribunal, which is an independent agency that has responsibilities and functions under this legislation, including maintaining registers of native title claims and Indigenous Land Use Agreements and assisting parties with native title claims.

The Federal Court presides over native title matters and facilitates outcomes for parties through consent or contested determinations.

The Native Title Act also established a system whereby groups appoint a corporation, known as a prescribed body corporate, to hold their determined native title rights and interest on trust or as an agent.

Since the Mabo decision, there have been other decisions that have provided further clarity on the nature of native title rights and interests.

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] HCA 40 (‘Wik decision’). The court decided that native title can co-exist with certain pastoral leases and that 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, the Senate passed the Native Title Amendment Act 1998 (Cth) (‘Amendment Act’).

The Amendment Act had a major effect on native title, 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 activity 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 [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 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. In Victoria, tangible and intangible cultural heritage is protected separately under the Aboriginal Heritage Act 2006 (Vic).

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) [2016] FCA 900. This decision, which raised significant implications for the resolution of other native title matters, was appealed to the full Federal Court (see Northern Territory of Australia v Griffiths [2017] FCAFC 106) and ultimately to the High Court (see Northern Territory v Mr A Griffiths (deceased) & Lorraine Jones on behalf of the Ngaliwurru & Nungali Peoples [2019] HCA 7), where adjustments to the compensation for economic loss calculation were made. The High Court refined the required approach to determining the appropriate amount of compensation for the extinguishment of native title and confirmed that the calculation of compensation comprised an economic component, an interest component and a cultural loss component.

The first native title claim to be determined in Victoria was the Yorta Yorta people’s claim over their traditional 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 [2002] HCA 58) held that the Federal Court was entitled to make that decision. This High Court decision has had substantial implications for the recognition of native title generally, and in Victoria in particular as it has set a high threshold for proving native title for Traditional Owners who have been displaced from their land.This has made native title claims in more settled areas very difficult.

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 Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk peoples. Native title determinations have since been made in favour of the Gunditjmara people in south-west Victoria (Lovett on behalf of the Gunditjmara People v Victoria [2007] FCA 474), including a shared native title determination with the Eastern Maar people (Lovett on behalf of the Gunditjmara People v Victoria (No 5) [2011] FCA 932) and in favour of the Gunaikurnai people in Gippsland (Mullett on behalf of the Gunai/Kurnai People v Victoria [2010] FCA 1144).

The Traditional Owner Settlement Act 2010 (Vic) (‘Settlement Act’) provides an alternative form of resolving native title in Victoria through a process of negotiations between the Victorian Government and a Traditional Owner group with the aim of reaching a comprehensive settlement package.

The Settlement Act was enacted as a way to assist Traditional Owner groups to overcome barriers to having native title recognised in Victoria. The Settlement Act was also intended to bring about better outcomes for Traditional Owners, and improved management of Crown land. By committing to this process, the Victorian Government aims to address the land justice aspirations of Victorian Traditional Owners and to provide finality and certainty for all parties involved.

The Settlement Act creates a system for settling native title claims out of court through interest-based negotiations. Compared with native title, the Settlement Act system is more focused on mechanisms to establishing sustainable Traditional Owner corporations to act on behalf of Traditional Owner groups into the future.

The current Victorian Government policy is that Traditional Owner groups that wish to negotiate a settlement need to prepare and lodge a threshold statement with the state. Guidelines provide detail about the information that must be included to satisfy the state that negotiations can commence. This threshold process is similar to the initial process of a group applying to have a native title claim registered.

One possible outcome of negotiations under the Settlement Act is the joint management of national parks and reserves by Traditional Owners and state agencies. This involves the establishment of joint management boards. It can also involve the transfer of ownership of national parks under Aboriginal title, with certain restrictions, to Traditional Owners.

Another possibility is that certain Crown land can be transferred to Traditional Owners for economic and social purposes; for example, as ordinary freehold for housing or commercial purposes.

Settlements may also include an agreement that implements a land-use activity regime (in place of the native title future acts regime). This agreement provides a set of procedural rights to Traditional Owners for certain activities to proceed on Crown land. The agreement can also include a natural resources agreement to accommodate the Traditional Owners’ need to access the land and use its natural resources, such as flora and fauna. Opportunities for the commercial use of natural resources may also be available.

Settlement Act agreements also address the recognition and strengthening of Aboriginal culture in Victoria.

The first agreement under the Settlement Act was made by the Gunaikurnai people on 22 October 2010 following their native title determination. An agreement with the Dja Dja Wurrung people commenced on 25 October 2013. The current Victorian Government continues to negotiate agreements under the Settlement Act.

More information about the Settlement Act and the Dja Dja Wurrung Land Use Activity Agreement is available from the Victorian Government Department of Justice and Community Safety (www.justice.vic.gov.au). Further information about native title is available from the National Native Title Tribunal (www.nntt.gov.au) or from First Nations Legal and Research Services (www.fnlrs.com.au), which provides legal and other services to Victorian native title claimants, native title holders and Traditional Owners.