1.5 Law Reform in Action Flashcards
Law Reform and Native Title in Australia
Native Title and Its Importance
* Native title refers to the ownership and access rights to land by the original inhabitants.
* In Australia, it is a legal right to an area of land claimed by peoples whose ancestors were the original inhabitants before European colonisation.
* The concept of native title has led to First Nations peoples expanding their understandings of land ownership to include the Western notion of property ownership.
* The High Court used the term ‘native title’ when they recognized First Nations peoples’ property rights in the Mabo v Queensland case, which overthrew the idea of terra nullius.
History of Government Policy
* First Nations peoples have inhabited Australia for over 60,000 years, using oral law, customs, and traditions to maintain order and control behavior.
* The colonial laws and policies developed in relation to First Nations peoples did not serve their interests, but those of the white colonists.
Policy or Law Effects on First Nations Peoples
* Dispossession/dispersal (1788–1800s): First Nations people were not recognized as citizens, leading to a belief that they would eventually ‘die out’.
* Protection (1869–1909): The Aboriginal Protection Act 1869 and Aborigines Protection Act 1909 gave wide powers to the Board for the Protection of Aborigines, governing where First Nations people could live and work.
* Assimilation and integration (1900–1962): A policy shift to ‘Europeanise’ them to become’similar’ to Europeans.
* Nationality and Citizenship Act 1948: First Nations people became Australian citizens, but not all states gave them full rights.
* 1962 amendments to the Commonwealth Electoral Act 1918: The right to vote in Commonwealth elections was given to all First Nations people in states that had not already provided this right.
* Reconciliation (1967–): The 1967 referendum amended the Australian Constitution, giving the Commonwealth Government the power to make laws specifically for the benefit of First Nations peoples.
* Closing the Gap framework (2008–2018): An Australian Government strategy aimed to reduce disadvantage among First Nations people.
* Closing the Gap framework (2019–2029): A new agreement was signed with a revised framework and 16 new targets.
Legal System and First Nations Rights in Australia
The Doctrine of Terra Nullius
* Terra nullius, meaning ‘land belonging to no-one’, refers to uninhabited territory with no recognized legal system or social or political organization.
* The ‘doctrine of reception’ justified British law when uninhabited land was colonised by Britain and no other system of law was recognized.
* The concept of terra nullius has led to ongoing oppression and marginalisation of First Nations peoples, including forced displacement and forced death.
Impact on Native Title Claims
* First Nations communities trying to claim native title must prove they are the Traditional Owners of the land and have an ongoing connection with it.
* The land was falsely deemed vacant by the British, allowing settlers to take possession of most arable land with government approval.
Legal Status of First Nations Peoples up to 1967
* The doctrine of terra nullius meant First Nations peoples did not exist as citizens legally.
* Criminal laws did not protect First Nations peoples, and government policies tended to accept violence as a way of dealing with conflicts.
* The 1967 referendum did not grant First Nations peoples the right to vote, as amendments in 1962 extended the right to vote in Commonwealth elections to all First Nations peoples who did not already have this right under their state laws.
* Most federal and state laws discriminating against First Nations peoples had been repealed by 1967, and First Nations peoples were counted in the census.
Native Title Development in Australia
Native Title Claims in the Northern Territory
* In 1963, the Yolngu people from the Gove Peninsula protested against the removal of land for bauxite mining without their permission.
* The ‘Gove land rights case’ commenced in 1971, ruling that if the Yolngu people had native title rights, they would have been extinguished under common law.
* The Australian Labor Party, led by Gough Whitlam, was elected in 1972 and established the Department of Aboriginal Affairs.
* A Royal Commission into Aboriginal land rights was established, and the Aboriginal Land Rights (Northern Territory) Act 1976 was drafted.
Mabo Cases
* Eddie Koiki Mabo and four other men from the Murray Islands challenged the Queensland Government in two cases in the High Court of Australia.
* The first case questioned the validity of a state law that attempted to abolish native title by asserting state ownership of the islands off the coast of Queensland.
* The second case, now known as the Mabo case, concerned the Meriam people’s right to occupy and control Murray Island (Mer).
* The High Court ruled that Australia was not terra nullius and that the Meriam people clearly held native title to their land.
* The High Court’s decision gave Australian law the doctrine of native title, recognizing the traditional rights of the Meriam people to the eastern Torres Strait islands and that native title existed for all First Nations peoples in Australia before European contact.
Growing Recognition of Native Title in Some Countries
* There has been growing recognition of the rights of First Nations peoples to their own lands worldwide.
* Hunting and fishing rights and land ownership rights have been returned to many First Nations groups in different countries.
* There has also been a move to give greater self-determination to First Nations groups, including Ma-ori in New Zealand, Inuit in Greenland and Canada, and Aboriginal and Torres Strait Islander peoples in their own countries.
Native Title Law Reform Agencies
National Native Title Tribunal (NNTT)
* A federal government agency established under the Native Title Act 1993.
* Mediates claims for native title under the direction of the Federal Court of Australia.
* Acts as an arbitrator if no agreement is reached about proposed developments.
* Aids in negotiating agreements for First Nations peoples’ land use.
* Does not decide whether native title exists.
Proving Native Title
* Process can be slow and expensive.
* Between the establishment of the NNTT and 31 December 2011, 200 applications were submitted and 175 determinations were made.
* Yamatji Marlpa Aboriginal Corporation made a large native title claim in 1996, finalized in February 2020.
Native Title as a Collective Right
* Native title is a collective right, claimed and shared by a group.
* An individual can bring a claim before the courts, sharing the rights gained by the group.
Law Reform Mechanisms Related to Native Title in Australia
- First Nations groups must have their claims for traditional land ownership legally validated by the Federal Court and the High Court.
- The NNTT, which investigates and mediates between claimants and non-claimants, cannot make legal decisions about native title.
- Claimants can obtain unopposed determination, consented determination, or litigated determination.
- The Federal Court of Australia’s website provides information about the processes involved in claiming native title and judgments on native title cases.
The Mabo Case
* The Mabo case recognized the existence of native title for a group of Murray Islander people in the Torres Strait.
* The High Court ruled that the Murray Islander people were the Traditional Owners of the land and had the right to possess and occupy the islands and enjoy use of their traditional lands.
* The federal government enacted the Native Title Act 1993 (Cth) to provide for native title recognition and protection.
* The Act created the Native Title Tribunal to determine the validity of native title claims.
The Wik Case
* The Wik and the Thaayorre people launched a case against the Queensland Government, claiming native title rights to land that was being used by pastoralists, under pastoral leases.
* The Federal Court ruled that the existence of pastoral leases extinguished the right to native title.
* The High Court ruled that the Wik and Thaayorre people were entitled to their traditional lands.
The Native Title Amendment Act 1998 (Cth)
* The Act extinguished native title over any land considered privately owned prior to 1 January 1994.
* When native title exists alongside a pastoral lease, the pastoralist is allowed to use the land for primary production without having to consult persons who have native title interests.
* Tough tests were imposed to determine the right to native title.
The Yorta Yorta case
* The Yorta Yorta people applied to the Native Title Tribunal for determination of native title in respect of public land and water.
* The Federal Court dismissed the claim, but the High Court upheld Justice Olney’s findings.
Native Title Rights in Australia: A Review
High Court Decision on ‘Traditional Laws and Customs’
* The High Court ruled that claimants must prove continuous observance of customs and laws since British sovereignty.
* The court clarified the law regarding the evidence necessary to prove native title.
Other Significant Cases and Amendments
* Yarmirr v Northern Territory (2001) 208 CLR 1 determined that the native title rights of the Croker Island community included free access to the sea and seabed.
* Bennell v Western Australia [2006] FCA 1243 ruled that native title existed within an area in and around Perth.
* In May 2023, the Galarrwuy Yunupingu (on behalf of the Gumatj Clan or Estate Group) Compensation Claim (DP2019/001) found that the Commonwealth had taken the land of the Gumatj people and several other clans without consent.
Native Title Cases
* The case of Manado (on behalf of the Bindunbur Native Title Claim Group) v Western Australia [2017] FCA 136 took a long time to determine.
* The full Federal Court handed down its judgment in favour of the Bindunbur and Jabirr Jabirr/Ngumbarl native title claim groups over land near Broome in 2018.
Review and Analysis
* The article ‘Native title rights, regulations and licenses: The Torres Strait Sea Claim’ (The Conversation, 8 August 2013) compared the Torres Strait Sea Claim to the original Mabo case.
* The article outlines the role of Parliament in recognising native title and the role of state legislation in granting rights and protecting the interests of First Nations peoples.
* The National Parks and Wildlife Act 1974 (NSW) provides for the protection of places and relics of significance to First Nations peoples’ cultures.
* The Aboriginal Land Rights Act 1983 (NSW) recognizes that land was traditionally owned and occupied by First Nations peoples, has spiritual, social, cultural and economic significance to First Nations peoples, and it is appropriate to acknowledge the importance of land to First Nations peoples.
Land Rights Claims in New South Wales
- The Act allows local Land Councils to negotiate agreements with land owners to grant First Nations access for hunting, fishing, or gathering.
- The National Parks and Wildlife Act 1974 (NSW) protects places and relics of significance to Aboriginal cultures.
- As of 2020, there were 37,200 unprocessed land rights claims, with the number increasing to 38,200 in 2022.
- The claims impact over 1.12 million hectares of land.
- The NSW Audit Office found key government departments were failing to meet statutory obligations to process First Nations peoples’ land claims.
- Federal legislation has been enacted to protect all parties involved in, and affected by, native title claims.
- The Native Title Act 1993 (Cth) recognizes and integrates native title into the land title system.
- The Howard federal government amended the legislation with the Native Title Amendment Act 1998 (Cth), allowing native title rights to co-exist on land held by pastoral leaseholders.
- The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) protects areas of water and land with cultural significance for First Nations peoples.
- Further changes include the Native Title Amendment Act 2007 (Cth) and the Native Title Amendment (Technical Amendments) Act 2007 (Cth).
- The Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth) provides greater clarity and validity to First Nations peoples’ land use agreements.
- The Native Title Legislation Amendment Act 2021 (Cth) received royal assent on 16 February 2021 to improve the native title claims resolution, agreement-making, decision-making, and dispute-resolution processes.
