By definition Native Title is a property right which reflects a relationship to land which is of a spiritual, cultural or historical significance to the claimants. The non-discriminatory protection of native title is a recognised human right.
Some government representatives refer to NT as a 'bridge' between Aboriginal Lore and the contemporary law that negotiates our physical co-existence.
The problem is that the government has deliberately made NT processes extremely long and complex. On many occasions those who initiated and supported the claim are no longer alive to hear the verdict. It takes a very long time for the custodians to put together a claim that can then be rejected on the government's terms.
Even when a NT claim is successful the custodians do not have final say over their land. NT gives them the platform to enter into negotiations with the government only. For example, a mining company wanting to dig on NT land would have to enter into negotiations with the government and Aboriginal custodians. The custodians would present evidence and discuss their objections or support of the proposal. Based on the cases brought forward the government then makes the final call on whether the mining project can go ahead or not.
As you can imagine getting NT is not easy and despite hundreds of claims, the successes are substantially less.
On average it takes 6 years to finalise a contested native title claim. It may take 30 years to determine native title for the open applications.
Native title is tightly linked with a court case the Australian High Court had to deal with in 1982, called the Mabo case.
Native title and land rights are often used synonymously. While native title is an entitlement to land it does not cover the rights to that land.
“Native title puts traditional owners in a stronger position to negotiate agreements, manage their country, and set terms and conditions for access,” explains Kimberley Land Council acting chief executive Nolan Hunter.
Native Title [is] one of the most complex and slowest parts of the justice system.
—Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner.
What sort of evidence do claimants need?
Aboriginal groups claiming native title need to provide evidence about.
* their identity (which might include genealogies),
* their traditional language,
* their connection and responsibilities to country,
* their social and cultural system (law and custom which is acknowledged and observed),
* their rights and interests in land and water, and
* the relationship between the rights and interests and their law and custom.
Can native title take away my backyard?
Many people got a wrong idea of what native title is about and which land can be claimed under it. The media did not help the misinformation.
Native title cannot be claimed when certain things have been done with the land, such as freehold grants, grants of exclusive possession, residential and other leases and public works like roads and hospitals.
Mabo
Eddie Koiki Mabo was a member of the Meriam people who are the traditional owners of Mer in far North Queensland. Mer is an island of the Murray group (Mer, Dauar and Waier islands).
Eddie Mabo was an activist for his people’s rights which he defended passionately. In 1982 Eddie Mabo and four other Torres Strait Islanders wanted their traditional land rights acknowledged. They claimed that their islands had been continuously inhabited and exclusively possessed by their people who lived in permanent settled communities with their own social and political organisation. Eddie Mabo claimed that the rights of his people had not been extinguished when the British Crown claimed land title over Australia. He wanted Australia to recognise these rights.
Three of the five applicants died before the High Court passed down its ruling, including Eddie Mabo. His legacy lives on through the Mabo case.
The High Court’s Mabo ruling
The High Court took 10 years to decide. On 3rd June 1992 it ruled that:
* The Crown had acquired a title to the land of Australia (meaning Australia as a land had been claimed by the Crown to belong to the white people). This title could not be challenged in court.
* The Aboriginal people are still entitled to a claim of their own.
* In certain cases the Aboriginal people’s claim could be voided (‘extinguished’) by events which have happened since the white people arrived and which broke the continued connection of Aboriginal people with their land.
* Most crucial of them all, the court rejected the notion of ‘terra nullius’.
Native title is extinguished through freehold or land leases, but native title continues to exist on Aboriginal reserves, vacant Crown land, stock routes and national parks, but only if the local system of traditional law recognises present owners or managers. If native title was extinguished Aboriginal people have to be compensated.
The conflict arises when an Aboriginal community is divided about extinguishing NT for compensation by leasing it out to outside parties. Some see it as an opportunity to create jobs and income for their community while others view it as selling out future generations of custodians for short term gains.
Three of the five applicants died before the High Court passed down its ruling, including Eddie Mabo. His legacy lives on in the common name of this ruling, the Mabo case.
The limitations of NT:
Despite their legal win, the Meriam people have since had less control over their lands than many other Aboriginal communities around Australia.
They had to seek approval of a state departmental head in Brisbane if they wanted to build anything—homes, toilet blocks—because the sub-tropical islands were among the few communities still set aside as “reserve” under trusteeship of the state. It wasn’t until 2012 that the Queensland government handed the “reserve” title back to the Meriam people allowing the community to make their own decisions.
Further, most successful claims so far have covered unwanted land, land that is extremely remote, small in size, has poor communications infrastructure, a lack of commercial land value, or poor soils. If the land does have mineral extraction potential, it rarely benefits land owners because they lack property rights in these valuable resources.
The Act has caused division within Aboriginal communities because it’s often misunderstood.
“It’s a whitefella legal construct,” says Glen Kelly, a Noongar man heading the South West Aboriginal Land and Sea Council in Western Australia. “What it is actually designed to do, in my view, is not to enliven traditional law and custom but to control traditional law and custom.”
One of the toughest requirements of the Act is that claimants have to be able to prove a continuity of traditional laws and customs on the land being claimed since European settlement, which considering the level of dispossession and interference caused by colonisation- is very difficult to do.
By dragging the process out it becomes less likely that traditional owners who can testify the connections are still around to do so. It's a farce. Like dangling a carrot in front of a rabbit but never letting it get a decent bite.
"Native title is at the bottom of the hierarchy of Australian property rights."
—Tom Calma, former Aboriginal and Torres Strait Islander Social Justice Commissioner.
"Until we give back to the black man just a bit of land that was his and give it back without provisos, without strings to snatch it back, without anything but complete generosity of spirit in concession for the evil we have done him - until we do that, we shall remain what we have always been so far: a community of thieves."
—Xavier Herbert author of Poor Fello