NATIVE TITLE

Question 0

What happened in Mabo No 1?

Answer 0

Eddie Mabo instituted legal proceedings in the original jurisdiction of the HC claiming rights to their lands. They debated the Queensland Coast Islands Declaratory Act which:

1. Retrospectively extinguished Native title rights on islands
2. Extinguishes without payment of consideration.

The HC Holds:
1. The legislation is invalid on the basis that it is racially discriminatory pursuant to s10 of the Racially Discriminatory Act (RDA). The legislation therefore conflicts with RDA (Cth), and by virtue of s109 of Commonwealth Constitution, the Queensland legislation was invalid.

Question 1

What are the two native Title schemes?

Answer 1

1. As recognised by the HC in Mabo

2. The Native Title Act (1993) NTA

Question 2

What is the relevance of Mabo No 2?

Answer 2

The HC found in a 6:1 majority that:

1. Native title is recognised by Common Law of Australia
2. The Murray Islanders were entitled, as agains the whole world, use and enjoyment of the Murray islands. (As against the whole world, indicates it’s a property right).
3. Native Title was subject to the Qld government’s power to validly extinguish, but would be subject to RDA
4. The crown now holds, not an absolute title, but a radical title
5. No compensation payable for extinguishment.

Question 3

When must compensation be paid?

Answer 3

Prior to 1975 (When RDA was enacted), no compensation payable.
After this, s51(xxxi) of Constitution, compensation must be paid on “just terms” where the Commonwealth is extinguishing.

Question 4

What is the relevance of the case WA v The Commonwealth?

Answer 4

In this case, Western Australia challenged the Commonwealth’s power to enact the NTA, arguing that it went beyond the Commonwealth’s power under s51(xxvi).

HC disagreed. That power was to make laws for “the people of any race for whom it is deemed necessary to make special laws”. Therefore, this power is valid to enact the NTA.

Question 5

What is the relevance of Wik v State of Queensland?

Answer 5

This is a 1996 CASE.
In this case, the HC found that the grant of pastoral leases did not necessarily extinguish Native title.
The NTA was amended as a result of this case, now so called the “intermediate period acts”.

Question 6

What is Native Title?

Answer 6

In Mabo No 2, Brennan J indicated: Native title has it’s ORIGINS and is given it’s CONTENT by the traditional laws acknowledge and the traditional customs observed by indigenous inhabitants of a territory.
The nature and incidents of Native title must be ascertained as a matter of fact by reference to THOSE LAWS AND CUSTOMS.

Question 7

What can be used in conjunction with Brennan J’s definition of Native Title to define the scope?

Answer 7

s223 NTA.
Which indicate Native title rights are:
(a) rights and interests possessed UNDER THE TRADITIONAL LAWS ACKNOWLEDGE and the traditional customs observed; and
(b) by those laws and customs, have a connection with land or waters; and
(c) rights and interest are recognised by the common law of Australia.

Question 8

What is the relevance of WA v Ward?

Answer 8

It narrows down the definition of NTA which is now reflected in s223.

1. Native Title is restricted to the traditions and customs of THAT PARTICULAR community.
2. Native title is a bundle of rights that does not include MINERAL rights.

Question 9

Is Native Title an individual Title?

Answer 9

No, it is communal (and collective) rights enjoyed by the whole community. WA v Ward (2002)

Question 10

Is Native Title enforceable against the whole world?

Answer 10

The HC in Mabo indicated it was a legal right, and in some instances, a proprietary right. I t can be enforceable against the whole world, which makes it a proprietary right.

Question 11

Can Native Title be alienated?

Answer 11

No, but it can be transferred to other communities (upon the death of every single one of the members of that community) by virtue of inter clan marriage.

Question 12

Can NT rights be surrefenred to the crown?

Answer 12

Yes, s56 NTA makes this possible. However NT rights cannot be mortgaged.

Question 13

What is the relevance of Commonwealth v Yarmirr?

Answer 13

Native Title exists off shares and it applies to waters that are subject to Australian jurisdiction.

However THERE ARE NO exclusive NT rights or exclusive control over the claimed area.

Question 14

How to prove Native Title?

Answer 14

s223:
1. Proof of connection with the land or waters;
2. In accordance with the traditional laws and customs of the aboriginal group

Question 15

Yorta Yorta v Vic (2002)

Answer 15

The Yorta community brought a claim for NT. Due to European Settlement their environment had changed drastically.
Many of their traditional resoruces had disappeared, there was a prohibition on traditional ceremonies and also from speaking their traditional language.

The judged rejected claim on the following bases:

1. The ancestors ceased to occupy their traditional land in accordance with traditional laws.
2. No language, nor ceremonies.
3. There was evidence of rubbish piles which indicated they had been there for long term occupation. There were also canoes that were made from scared trees of that tribe. However none of these tied in with traditional laws and customs.
4. It was imperative that the community not only did the activities, but did them PURSUANT to rules by which that society lives.

Question 16

What was the main reason for refusing Native Title in Yorta Yorta?

Answer 16

There had been an interruption in the continuity and observance of the traditional laws and customs

Question 17

CONCLUSION: WHAT MUST BE PROVEN FOR NATIVE TITLE TO EXIST?

Answer 17

1. A connection with the land and waters by the traditional laws and customs: NTA s223 and Yorta Yorta
2. Native title is possessed under Traditional laws acknowledge and the traditional customs observed by the claimant group. These must exist at the time of sovereignty: s223(1)(a) NTA and Yorta Yorta
3. A society is the existence of a body of person that is united in and by it’s acknowledgement and observe a body of laws and customs: s223(1)(a) and Yorta Yorta
   4: NT must not be extinguished or otherwise recognisable at common law