Native Title Act 1993

The Native Title Act 1993 is a law passed by the Australian Parliament, the purpose of which is "to provide a national system for the recognition and protection of native title and for its co-existence with the national land management system". The Act was passed by the Keating Government following the High Court's decision in Mabo v Queensland (No 2) (1992).[3] The Act commenced operation on 1 January 1994.

Native Title Act 1993
Parliament of Australia
CitationAct No. 110 of 1993[2]
Royal assent24 December 1993[2]
Status: Amended

Native Title Act 1993

This legislation aimed to codify the Mabo decision and implemented strategies to facilitate the process of recognising native title.

The Act also established the National Native Title Tribunal, to register, hear and determine native title claims.

According to the Australian Government:

The Native Title Act 1993 establishes a framework for the protection and recognition of native title. The Australian legal system recognises native title where:

  • the rights and interests are possessed under traditional laws and customs that continue to be acknowledged and observed by the relevant Indigenous Australians,
  • by virtue of those laws and customs, the relevant Indigenous Australians have a connection with the land or waters,
  • the native title rights and interests are recognised by the common law of Australia.

The Native Title Act sets up processes to determine where native title exists, how future activity impacting upon native title may be undertaken, and to provide compensation where native title is impaired or extinguished. The Act gives Indigenous Australians who hold native title rights and interests—or who have made a native title claim—the right to be consulted and, in some cases, to participate in decisions about activities proposed to be undertaken on the land. Indigenous Australians have been able to negotiate benefits for their communities, including in relation to employment opportunities and heritage protection.

The Act also establishes a framework for the recognition and operation of representative bodies that provide services to native title claimants and native title holders. The Australian Government provides significant funding to resolve native title issues in accordance with the Act, including to native title representative bodies, the National Native Title Tribunal and the Federal Court.[4]

The High Court in Western Australia v Commonwealth (1995) upheld the Native Title Act and struck down a conflicting Western Australia statute.[5] The Act was amended by the Howard Government in 1998,[6] and again in 2007,[7] and by the Rudd Government in 2009.[8][9]

Wik decision (1996)

In 1996, the High Court's decision in Wik Peoples v Queensland was handed down.[10] The case dealt with the question of whether pastoral leases granted between 1910 and 1974 in Far North Queensland had the effect of extinguishing native title. A 4:3 majority of the judges decided that the grant of a pastoral lease did not confer exclusive possession, and that native title could therefore continue to exist – this has been called "coexistence". Where an inconsistency between the native title and non-native title rights occurs, the non-native title rights prevail.

The Native Title Act had not adequately dealt with the possibilities of native title existing over pastoral leases or of native title rights co-existing with other rights. Since the Native Title Act had come into effect, governments had been taking action on pastoral leases that did not comply with the Native Title Act. Wik raised the possibility that those acts could be invalid and showed that the "freehold test" (the principle used to determine where proposed activities could be done without regard to native title) in relation to future acts was inappropriate. The Federal Government developed the Ten Point Plan, which became the basis for the amendments, to deal with these inadequacies of the Native Title Act.

1998 Amendments

The Native Title Amendment Act 1998 (Cth),[6] also commonly referred to as the "10 Point Plan" is an Australian native title law created by the John Howard led Liberal Government in response to the Wik Decision by the High Court.[10] The Native Title Amendment Act 1998 placed some restrictions on native title claims.

The amendments
  • included changes to the status of the National Native Title Tribunal,[11] handing some powers to the Federal Court;
  • introduced the registration test for native title applications;[12]
  • broadened the confirmation provisions and validation provisions;[13]
  • changed provisions for primary production activities,[14] statutory access rights,[15] compulsory acquisitions and the right to negotiate provisions;[16]
  • extended the agreement making abilities under the Act, replacing Section 21 Agreements with Indigenous Land Use Agreements;[17] and
  • gave the States and Territories powers to validate "intermediate period acts" and authorise "previous exclusive possession acts".

The "10 Point Plan"

The ten points were as follows:

  1. The National Native Title Tribunal holds absolute authority over claims for native title.
  2. State governments are empowered to extinguish Native Title over crown lands for matters of "national interest"
  3. Lands providing public amenities are exempt from Native Title claims
  4. Mining and pastoral leases are allowed to co-exist with Native Title
  5. The National Native Title Tribunal can create access to traditional lands rather than granting full Native Title
  6. A registration test is imposed on all claimants
  7. The right to claim Native Title in or around urban areas is removed
  8. Government is permitted to manage land, water, and air issues in any site
  9. Very strict time limits will be placed on all claims
  10. Indigenous Land Use Agreements will be created to promote co-existence

The legislation was opposed by the Australian Labor Party and the Australian Democrats. The final legislation was amended to gain the support of Independent Senator Brian Harradine, whose vote was required for the bill to pass.[18]

See also

References
Library resources about
Native Title Act 1993
  1. Native Title Act 1993 - Long Title (Cth).
  2. "Native Title Act 1993 - Act No. 110 of 1993". ComLaw. Retrieved 4 February 2015.
  3. Mabo v Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1 (3 June 1992), High Court.
  4. Department of Foreign Affairs and Trade (Australia), Indigenous land rights and native title Archived 26 January 2012 at the Wayback Machine, retrieved 30 January 2012.
  5. Western Australia v Commonwealth [1995] HCA 47, (1995) 183 CLR 373, High Court.
  6. Native Title Amendment Act 1998 (Cth).
  7. Native Title Amendment Act 2007
  8. Native Title Amendment Act 2009
  9. Depart of Social Security - Native Title Amendment Act 2009 - Information sheet
  10. Wik Peoples v Queensland [1996] HCA 40, (1996) 187 CLR 1 (23 December 1996), High Court.
  11. Native Title Amendment Act 1998 (Cth) Schedule 2 amending sections 1961 and 86B.
  12. Native Title Amendment Act 1998 (Cth) Schedule 2 adding sections 190A - 190D.
  13. Native Title Amendment Act 1998 (Cth) Schedule 1 adding Divisions 2A - 2B.
  14. Native Title Amendment Act 1998 (Cth) Schedule 1 adding section 24.
  15. Native Title Amendment Act 1998 (Cth) Schedule 1 adding Subdivision P of Division 3 of Part 2.
  16. Native Title Amendment Act 1998 (Cth) Schedule 1 adding Subdivision Q of Division 3 of Part 2.
  17. Native Title Amendment Act 1998 (Cth) Schedule 1 adding Subdivisions B-E of Division 3 of Part 2.
  18. "Lateline: At Wik's End". ABC News. 2 July 1009. Archived from the original on 8 October 1999.

Further reading
  • Walker v State of South Australia (No 2) [2013] FCA 700, 215 FCR 254 (19 July 2013): an application in the Federal Court under section 61 of the Native Title Act 1993 (Cth) in which Justice Mansfield rejected an argument that the Letters Patent Proviso provides protection for the rights of Aboriginal People to the occupation or enjoyment of their lands, citing comments by Justice Kirby in Fejo v Northern Territory [1998] HCA 58, (1998) 195 CLR 96.
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