In Australia, the common law doctrine of Aboriginal title is referred to as native title, which is "the recognition by Australian law that Indigenous people have rights and interests to their land that come 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 local Indigenous Australians which survived the acquisition of radical title to the land by the Crown at the time of sovereignty. Native title can co-exist with non-Indigenous proprietary rights and in some cases different Indigenous groups can exercise their native title over the same land.
The foundational case for native title in Australia was Mabo v Queensland (No 2) (1992). One year after the recognition of the legal concept of native title in Mabo, the Keating Government formalised the recognition by legislation with the enactment by the Australian Parliament of the Native Title Act 1993. 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 Australiamediates 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 National Native Title Tribunal (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.
Native title determinations
The National Native Title Register (NNTR), maintained by the NNTT, is a 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 1,228,373 km2 (or approximately 16 per cent) of the land mass of Australia.
1971 – Milirrpum
Main article: Milirrpum v Nabalco Pty Ltd
Australia did not experience litigation involving Aboriginal native title until the 1970s, though several earlier cases tangentially involved issues of native title. In 1835, John Batman purported to sign the Batman's Treaty with Aboriginal elders in the Port Phillip 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. 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 (the "Gove land rights case") in the Supreme Court of the Northern Territory, 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, which held that land belonged to no one at the time of British settlement.
In the wake of Milirrpum and the election of the Whitlam Government in 1972, the Aboriginal Land Rights Commission (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 Fraser Government passed the Aboriginal Land Rights Act 1976, which established a statutory procedure that transferred almost 50 per cent of land in the Northern Territory (around 600 000 km2) to collective Indigenous ownership. The subsequent Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 had a similar effect in South Australia.
In 1981 South Australian Premier David Tonkin returned 102,650 square kilometres of land (10.2% of the state's land area) to the Pitjantjara Yankunytjatjara people. The land rights legislation was introduced by Premier Don Dunstan in November 1978, several months prior to his resignation from Parliament. An amended bill, following extensive consultation, was passed by the Tonkin Liberal Government. In 1984 Premier John Bannon's Labor Government passed legislation to return lands to the Maralinga Tjarutja people. The legislation was proclaimed in January 1985 and was followed by a ceremony in the desert attended by Maralinga Tjarutja leader Archie Barton, John Bannon and Aboriginal Affairs Minister Greg Crafter. In May 2004, following the passage of special legislation, Premier Mike Rann handed back title to 21,000 square kilometres of land to the Maralinga Tjarutja and Pila Nguru people. The land, 1000 km Northwest of Adelaide and abutting the Western Australia border, was then called the Unnamed Conservation Park. It is now known as Mamumgari Conservation Park. It includes the Serpentine Lakes and was the largest land return since 1984. At the 2004 ceremony Premier 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 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.
In 1979, Paul Coe commenced, as plaintiff, an action in the 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. Chief 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'.
1988–1992 – Mabo
Main articles: Mabo v Queensland (No 1) and Mabo v Queensland (No 2)
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 of Murray Island 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 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 Indigenous inhabitants of a territory".
1993 – Native Title Act 1993
Main article: Native Title Act 1993
One year after the recognition of the legal concept of native title in Mabo, the Keating Government formalised the recognition by legislation with the enactment by the Australian Parliament of the Native Title Act 1993. 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.
1996 – Wik
Main article: Wik Peoples v Queensland
After the Mabo decision, uncertainty surrounded whether native title claims over pastoral leases would extinguish these leases. The Wik Decision in 1996 clarified the uncertainty. The court found that the statutory pastoral leases 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. The decision found that native title could coexist with other land interests on pastoral leases, which cover some 40% of the Australian land mass.
1998 – Native Title Amendment Act 1998
Main article: Native Title Amendment Act 1998
The Wik decision led to amendments to the Native Title Act 1993 by the Native Title Amendment Act 1998. This Act, also known as the "10 Point Plan", was introduced by the Howard Government. It streamlined the claims system and provided security of tenure to non-Indigenous 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.
1998–2002 – Yorta Yorta
Main article: Yorta Yorta v Victoria
Yorta Yorta v Victoria, was a native title claim by the Yorta Yorta Indigenous people of north central Victoria, 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 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, 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 aobout the claim area and a determination was made in 2003. "Exclusive possession native title was recognised over Lacrosse Island, 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
Main article: Yarmirr v Northern Territory
Yarmirr v Northern Territory (2001), was an application made on behalf of a number of clan groups of Aboriginal people to an area of seas and sea-beds surrounding Croker Island 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.
2005 – Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagalk
Main article: Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v Victoria
The Indigenous peoples of the 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 involving Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagalk people. In his reasons for judgement 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."
2006 – Noongar
In 2005 the Federal Court brought down a judgment recognising the native title of the Noongar people over the Perth 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.
2007 – Native Title Amendment Act 2007
In 2007 the Howard Government passed the Native Title Amendment Act 2007, 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.
2009 – Native Title Amendment Act 2009
The Native Title Act 1993 was further amended by the Rudd Government by the Native Title Amendment Act 2009.
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 Australia's colonisation by the British ("customary Aboriginal law"). Although colonisation wrought social changes upon the Aborigines, customary Aboriginal law continues to regulate the lives of many Indigenous Australians.
- The now dominant, English-derived legal system, which was brought to Australia with colonisation, which includes the common law and enacted laws ("Australian law").
Only Australian laws are enforced directly in Australian courts. Native title is not a concept that forms part of customary Aboriginal law – rather, it is the term adopted 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; inalienable other than by surrender to the Crown; and ranging 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, and 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:
The native title rights and interests held by particular Indigenous 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.
Native title rights and interests may include rights to:
- live on the area
- access the area for traditional purposes, like camping or to do ceremonies
- visit and protect important places and sites
- hunt, fish and gather food or traditional resources like water, wood and ochre
- teach law and custom on country.
In some cases, native title includes the right to possess and occupy an area to the exclusion of all others (often called ‘exclusive possession’). This includes the right to control access to, and use of, the area concerned. However, this right can only be recognised over certain parts of Australia, such as unallocated or vacant Crown land and some areas already held by, or for, Indigenous Australians.Native title rights and interests differ from Indigenous land rights in that the source of land rights is a grant of title from government. The source of native title rights and interests is the system of traditional laws and customs of the native title holders themselves.
Native title mediation
Main article: Mediation in Australia § Native title 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. Due to the large number of respondents to native title applications, the process of mediation differs somewhat from that of other mediations. Rather than the parties referring a dispute to mediation, the Federal Court determines whether the National Native Title Tribunal or some other mediating body should mediate a matter. The mediator does not decide whether native title should be recognised over the land in question; rather it has the role of mediating contested applications and applications for compensation which are lodged in the Federal Court.
The parties must mandatorily attend a native-title mediation unless the Court has granted leave. The Court, either on the application of a party or of its own motion, must order that there be no mediation if they find that mediation will be unnecessary and if there is no likelihood of the parties being able to reach agreement in mediation. If mediation does take place however, parties can apply for the termination of the mediation three months after commencement of mediation.
As familiarity with the provisions and processes of the Native Title Act 1993 has become more widespread, the use of voluntary Indigenous Land Use Agreements and consensual determinations of native title applications is now not uncommon.
- Native Title Act 1993 at ComLaw
- Native title research and resources at Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS)
- National Native Title Tribunal
- Attorney-General's information on native title
- Federal Court of Australia Native Title Infobase, The Native Title Infobase includes selected material commencing from 1839 to the present day and covers all aspects of native title. It gives reference to Australian material including journal articles, book chapters, books, conference papers, reports and press clippings. It also includes relevant material from other jurisdictions such as New Zealand, United States, Canada, Africa and Asia.
- List of finalised native title cases at the Federal Court of Australia
- Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Reports, 1994–2011
- Department of the Parliamentary Library (2003) The Mabo debate: a chronologyAccessed 17 February 2009
- "Promise of Mabo not yet realised". The Australian. 29 May 2010. Retrieved 31 May 2010.
- ^ ab"Exactly what is native title? – What is native title? – National Native Title Tribunal". Nntt.gov.au. 19 December 2007. Archived from the original on 14 January 2012. Retrieved 28 January 2011.
- ^Russel, Peter (2005). Recognizing Aboriginal title: the Mabo case and indigenous resistance to English-settler colonialism. University of Toronto Press.
- ^"Native Title Corporations: Prescribed Bodies Corporate". Australian Institute of Aboriginal and Torres Strait Islanders Studies. Retrieved 28 January 2011.
- ^National Native Title Tribunal, Annual Report 2010-2011: President's Overview, retrieved 7 February 2012.
- ^Attorney-General v Brown(1847) 1 Legge 312; 2 SCR (NSW) App 30.
- ^Cooper v Stuart UKPC 16, (1889) 14 AC 286, Privy Council (on appeal from NSW).
- ^Williams v Attorney General (NSW) HCA 33, (1913) 16 CLR 404, High Court (Australia).
- ^Randwick Corporation v Rutledge HCA 63, (1959) 102 CLR 54, High Court (Australia).
- ^Wade v New South Wales Rutile Mining Co Pty Ltd HCA 28, (1969) 121 CLR 177, High Court (Australia).
- ^National Archives of Australia, Governor Bourke's Proclamation 1835 (UK)Archived 25 July 2008 at the Wayback Machine. Accessed 3 November 2008
- ^Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (27 April 1971) Supreme Court (NT).
- ^Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
- ^ abcdDepartment of Foreign Affairs and Trade (Australia), Indigenous land rights and native titleArchived 26 January 2012 at the Wayback Machine., retrieved 30 January 2012.
- ^Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA).
- ^Sydney Morning Herald, Dec 3 2008, "Hero of the Maralinga People"
- ^The Age 25 August 2004, "Maralinga Handover Prompts Celebration"
- ^ abCoe v Commonwealth HCA 68, (1979) 24 ALR 118; (1979) 53 ALJR 403 (5 April 1979), High Court (Australia).
- ^ abcMabo v Queensland (No 2) HCA 23, (1992) 175 CLR 1 (3 June 1992), High Court.
- ^Native Title Act (Cth).
- ^Wik Peoples v The State of Queensland HCA 40, (1996) 187 CLR 1 (23 December 1996), High Court.
- ^ abcMembers of the Yorta Yorta Aboriginal Community v Victoria HCA 58, (2002) 214 CLR 422 "Judgment Summary"(PDF). High Court. 12 December 2002.
- ^ abMembers of the Yorta Yorta Aboriginal Community v Victoria FCA 1606 (18 December 1998), Federal Court.
- ^Members of the Yorta Yorta Aboriginal Community v State of Victoria FCA 45 (8 February 2001), Federal Court (Full Court).
- ^Ward v Western Australia FCA 1478 (24 November 1998), Federal Court.
- ^Western Australia v Ward FCA 191 (3 March 2000), Federal Court (Full Court).
- ^ abcWestern Australia v Ward HCA 28, (2002) 213 CLR 1 (8 August 2002), High Court
- ^Attorney-General of the Northern Territory v Ward FCAFC 283 (9 December 2003), Federal Court (Full Court).
- ^"Land, Approvals and Native Title Unit - Key Legal Events". www.dpc.wa.gov.au. Retrieved 2017-06-20.
- ^Commonwealth v Yarmirr HCA 56, (2001) 208 CLR 1 (11 October 2001), High Court
- ^Yarmirr v Northern Territory [No 2] FCA 771, (1998) 82 FCR 533, Federal Court.
- ^National Native Title Tribunal, Talking Native Title, Issue 1, National Native Title Tribunal, December 2001.
- ^Fergus Shiel, Past gives us strength, Aborigines say, The Age, 14 December 2005. Accessed 10 September 2011
- ^ abClarke on behalf of the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Jupagulk Peoples v Victoria FCA 1795 (13 December 2005), Federal Court.
- ^Bennell v State of Western Australia FCA 1243, Federal Court.
- ^Bodney v Bennell FCAFC 63 (23 April 2000), Federal Court (Full Court).
- ^Native Title Amendment Act 2007 (Cth).
- ^Native Title Amendment(Technical Amendments) Act 2007 (Cth).
- ^Frith, Angus (November 2008). "The 2007 Amendments to the Native Title Act 1993 (Cth): Technical Amendments or Disturbing the Balance of Rights?"(PDF).
- ^Clayton Utz – Amendments to the Native Title Act 1993 – some improvements for the energy and resources sector
- ^Native Title Amendment Act 2009 (Cth).
- ^"Native Title Amendment Act 2009 – Information sheet". Department of Social Security.
- ^For a survey of the different approaches to determining whether native title has been extinguished, see the recent decision of the High Court in Queensland v Congoo  HCA 17 (13 May 2015) AustLii. The differing approaches taken by the various members of the Court and the 3:3 split on the decision mean that the case has no clear ratio decidendi, but perhaps because of this, the case gives a good overview of different approaches.
- ^Sourdin, Tania (2001). Alternative Dispute Resolution. Pyrmont, NSW: Lawbook Co. p. 92. ISBN 0-455-21820-X.
- ^Native Title Act (Cth) s 86B(3)-(4).
- ^Native Title Act (Cth) s 86C(2).
42. The phrase ‘connection requirements for the recognition and scope of native title rights and interests’, is a construct of many elements of native title law that are interwoven. Integral to native title is the concept of recognition of Aboriginal and Torres Strait Islander laws and customs by which means connection to land and waters is established. Connection requirements for the recognition and scope of native title in this sense comprise a shorthand reference to a complex of statutory provisions in the Native Title Act (principally s 223 and s 225); and associated case law, policy and practices, such as connection reports. This section explains the concepts of ‘recognition’ and the ‘scope’ of native title, and introduces the definition of native title as set out in s 223 of the Native Title Act.
The definition of native title in the Native Title Act
43. Section 223 of the Native Title Act defines the native title rights and interests that are the subject of a determination of native title under s 225 of the Act. In s 223(1), the term ‘native title or native title rights and interests’means:
the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
44. Section 223 has been the subject of extensive judicial interpretation. As interpreted by the Court, native title claimants must address a number of requirements to satisfy s 223. Justice Mansfield of the Federal Court has summarised these in the following way:
A threshold requirement is that the evidence shows that there is a recognisable group or society that presently recognises and observes traditional laws and customs in the Determination area. In defining that group or society, the following must also be addressed:
(1) that they are a society united in and by their acknowledgement and observance of a body of accepted laws and customs;
(2) that the present day body of accepted laws and customs of the society is in essence the same body of laws and customs acknowledged and observed by the ancestors or members of the society adapted to modern circumstances; and
(3) that the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty, and that the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs.
The claimants must show that they still possess rights and interests under the traditional laws acknowledged and the traditional customs observed by them, and that those laws and customs give them a connection to the land.
Recognition of native title
45. While s 223 sets out the manner in which native title rights and interests claimed can be established:
It is a necessary condition of their inclusion in a determination that the rights and interests are recognised by the common law of Australia. That condition flows from s223(1)(c). ‘Recognise’ in this context means that the common law ‘will, by the ordinary processes of law and equity give remedies in support of the relevant rights and interests to those that hold them’.
In Mabo [No 2] the High Court held that when the British Crown asserted sovereignty over Australia it acquired a radical title. Acquisition of the radical title was held to be consistent with the recognition of native title in that native title ‘burdened’ the radical title of the Crown. However, while native title was held to burden the radical title of the Crown, native title rights and interests do not have their source in the common law. As the High Court stated in Fejo v Northern Territory:
Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law.
46. While native title does not derive from the common law, it coexists with the common law and statute that determines how other peoples’ interests are granted and governed within the Australian legal system. The High Court in Commonwealth v Yarmirr stated:
The concept of radical title provides an explanation in legal theory of how the two concepts of sovereignty over land and existing native title rights and interests co-exist.
47. The idea of two systems has significance for determining continuity of native title from the pre-sovereign period time. Continuity in acknowledgment and observance of the laws and customs of an Indigenous society since pre-sovereignty is ‘essential’, because it is the normative quality of those rules which the common law has subsequently recognised as effecting a burden on the Crown at the time of sovereignty. Accordingly, the normative system—from which the traditional laws and customs stem—must be that of the particular society that was to be found pre-sovereignty, not that of some other, different, society.
48. In this manner, native title is the product of an intersection of two systems of law. As the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria (‘Yorta Yorta’) stated, recognition
is a requirement that emphasises the fact that there is an intersection between legal systems and that the intersection occurred at the time of sovereignty. The native title rights and interests which are the subject of this Act are those which existed at sovereignty, survived that fundamental change in regime, and now, by resort to the processes of the new legal order, can be enforced and protected. It is those rights and interests which are ‘recognised’ in the common law.
49. The relationship that Aboriginal and Torres Strait Islander people have with land and waters through their laws and customs, however, still remains even without recognition by the Australian legal system. As French CJ and Crennan J stated in Leo Akiba on behalf of the Torres Strait Regional Sea Claim Group (Akiba):
Extinguishment is the obverse of recognition. It does not mean that native title rights and interests are extinguished for the purposes of the traditional laws acknowledged and customs observed by the native title holders. By way of example apposite to this case, the plurality pointed out in Yanner v Eaton that to tell a group of Aboriginal people that they may not hunt or fish without a permit:
“does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that Aboriginal law and custom recognises them as possessing.”
50. French CJ, writing extra-curially, described recognition as a form of ‘mapping’ of Aboriginal and Torres Strait Islander people’s relationship to land and waters onto the common law:
Consistently with the notion of ‘mapping’ traditional relationships to land onto the common law universe, recognition may be seen as a present declaration of a mapping that, from the point of view of today’s common law, came into existence at the time of annexation ... The identification of indigenous groups today, the rules by which they are defined, the content of their traditions and customs and their relationship to the land and waters which comprise their ‘country’ may be described and interpreted by evidence in court proceedings given by the members of such groups, anthropologists and other experts. The things of which they speak constitute the subjects of the common law of native title. The common law establishes the judge-made rules for determining whether native title rights and interests exist. These are the rules of recognition.
51. A native title determination can occur either as a result of litigation involving a contested hearing or it can be made by consent of the parties involved. The Native Title Act sets out the ways in which native title intersects with many other interests in Australian society. The native title held, ‘by particular Indigenous people will depend on both their traditional laws and customs and what interests are held by others in the area concerned’.
52. In general terms, connection requirements relating to the recognition and scope of native title rights and interests, working in conjunction with authorisation and joinder provisions, raise issues involving:
What is necessary, as a matter of law and fact, to establish a native title claim?
What is the scope (nature and content) of the native title rights and interests that are determined?
Who may bring a claim (application for determination of native title)?
Who may contest an application for a determination of native title?
53. The requirement that the laws and customs acknowledged and observed by Aboriginal and Torres Strait Islander people claiming native title can be described as ‘traditional laws and customs’ is discussed further under options for reform in the section relating to the meaning of ‘traditional’. The requirement for continuity of acknowledgment and observance of traditional laws and customs is the focus of discussion around options for reform in relation to ‘substantial interruption’.
Scope of native title rights and interests
54. The scope of native title is often referred to as the nature and content of native title. As native title rights and interests have their source in Aboriginal or Torres Strait Islander laws and customs, the specific native title rights and interests asserted will be grounded in fact and vary between claims. Identifying the traditional laws and customs of the claimant group is significant not only to determine the rights and interests concerned, but thereby to establish connection to land and waters under s 223(1)(b).
55. The scope of native title and native title rights and interests is determined on the basis of the factual material that provides evidence of traditional laws and customs. What is required to demonstrate, under s 223(1)(b), that Aboriginal or Torres Strait Islander people, by their traditional laws and customs, have a connection with the land or waters is discussed further when considering options for reform related to ‘physical occupation and continued or recent use’. Native title is a ‘unique’ interest.
56. Not all rights arising under Aboriginal and Torres Strait Islander people’s traditional laws and customs are recognised by the Australian legal system. Rights and interests arising under traditional laws and customs cannot be recognised if they ‘fracture a skeletal principle’ of the law, or if they are held to be inconsistent with established ‘public rights’. The primary category of native title rights and interests found to be ‘inconsistent’ are those characterised as ‘exclusive’ in nature’.
57. A determination of native title sets out the specific native title rights and interests that are recognised in a particular area that is claimed. An order for a determination of native title must cover a set of designated elements under s 225 of the Native Title Act. If native title is established, there is a determination of
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c); and
(e) whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
Examining connection requirements for native title
58. Many concerns have been raised about how the law around connection requirements for the recognition and scope of native title is formulated and how it has evolved. Some commentators raise specific concerns about the highly technical character of the requirements necessary for the establishment of native title. The test for establishing native title may be considered too difficult to meet, and the nature and content of the native title rights and interests recognised too limited:
Changes in the law (statutory and jurisprudential) have made it both more difficult for claimants to meet the requirements for proof of native title and limited the nature of the rights and interests that can be recognised. Consequently, there is an increasing disjunct between the contemporary worldviews and aspirations of Aboriginal people and the legal construction of native title.
59. It has been pointed out that ‘native title’ as a legal construct may not accord with Aboriginal and Torres Strait Islander people’s understandings of society, law and custom. Justice Jagot in Wyman on behalf of the Bidjara People v Queensland (No 2) noted:
It should be apparent that the provisions of the NTA involve a construct. That is, the provisions impose a set of requirements which bear no necessary relationship to contemporary Aboriginal Australia or, for that matter, what might ordinarily be considered to be a society and its continuance. Whether native title rights and interests can be established does not necessarily say anything about the existence of any contemporary Aboriginal society (in the sense of a body of persons united in and by its acknowledgment and observance of a body of laws and customs), the content or strength of any norms and values of that society, or the merits or otherwise of those norms and values.
60. The ALRC invites comment on the adequacy of s 223 as a test for establishing the existence of Aboriginal and Torres Strait Islander people’s rights and interests in relation to land and waters.
Question 5. Does s 223 of the Native Title Act adequately reflect how Aboriginal and Torres Strait Islander people understand ‘connection’ to land and waters? If not, how is it deficient?
Options for reform
61. Connection requirements for the recognition and scope of native title rights and interests raise a number of interwoven challenges. The Terms of Reference direct the ALRC to consider five specific options for reform that have been identified, but the Inquiry can be more wide-ranging in its examination of suggested measures. The following sections consider the nature of the challenges posed by native title law and legal frameworks, and the suggested options for reform in detail.