Native title in Australia

Australia did not experience litigation involving Aboriginal native title until the 1970s, though several earlier cases tangentially involved issues of native title.[5][6][7][8][9] In 1835, John Batman purported to sign 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.[10] 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.[11]

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. Prime Minister Gough Whitlam introduced a new policy of Aboriginal self-determination, and initiatives such as the Aboriginal Land Fund and the National Aboriginal Consultative Committee (NACC) were set up. The latter consisted of elected Aboriginal representatives, who would advise the Minister of Aboriginal Affairs. The Whitlam government introduced legislation later passed by the Fraser Government as the Aboriginal Land Rights Act 1976,[12][13] which established a procedure to transfer almost 50 per cent of land in the Northern Territory (around 600,000 km2) to collective Aboriginal ownership.[14] The Fraser government continued to implement many of the previous government's initiatives, under the description "self-management" rather than self-determination.[12]

In 1979, Paul Coe, a Wiradjuri man from Cowra, New South Wales, 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.[15] 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'.[15]

The South Australian Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981[16] 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 March 1981. This legislation gave significant rights well in advance of any other to date in Australia.[17] In 1981, SA Premier Tonkin returned 102,650 square kilometres (39,630 sq mi) of land (10.2% of the state's land area) to the Pitjantjara and Yankunytjatjara people. However it did not give the people the power of veto over mining activities; any disputes would need to be resolved by an independent arbitrator.[12]

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.[18] This granted rights over 75,000 square kilometres (29,000 sq mi) of land in the Great Victoria Desert, including the land contaminated by the British nuclear weapons testing at Maralinga.[12]

In 1992 the doctrine of terra nullius confirmed in Milirrpum v Nabalco was overruled by the High Court in Mabo v Queensland (No 2),[19] 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.[19] 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 Aboriginal inhabitants of a territory".[19]

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.[20] 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.

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.[21] The decision found that native title could coexist with other land interests on pastoral leases, which cover some 40% of the Australian land mass.

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-Aboriginal 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.

Yorta Yorta v Victoria,[22] was a native title claim by the Yorta Yorta Aboriginal people of north central Victoria, which was dismissed by Justice Olney of the Federal Court in 1998.[23] Appeals to the Full Bench of the Federal Court in 2001,[24] and the High Court in 2002 were also dismissed.[22]

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.[23] The 2002 High Court decision adopted strict requirements of continuity of traditional laws and customs for native title claims to succeed.[22]

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.[25] Western Australia appealed the decision to the Full Court of the Federal Court,[26] then to the High Court.[27]

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.[27] 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.[27]

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 about the claim area and a determination was made in 2003.[28] "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."[29]

Yarmirr v Northern Territory (2001),[30] 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.[31] The decision paved the way for other native title applications involving waters to proceed.[32]

Nangkiriny v State of Western Australia (2002 & 2004), for the Karajarri people in the Kimberley Region, south of Broome. Land rights recognised over 31,000 square kilometres (12,000 sq mi) of land (half the size of Tasmania).[33]

In May 2004, following the passage of special legislation, South Australian Premier Mike Rann handed back title to 21,000 square kilometres of land to the Maralinga Tjarutja and Pila Nguru people. The land, 1,000 kilometres (620 mi) north-west of Adelaide and abutting the Western Australia border, was then called the Unnamed Conservation Park. It is now known as Mamungari Conservation Park. It includes the Serpentine Lakes, and was the largest land return since 1984. At the 2004 ceremony 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.[34] The Maralinga Tjarutja lands now total 102,863 square kilometres.

The Aboriginal 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.[35][36] In his reasons for judgment 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."[36]

In 2005 the Federal Court brought down a judgment recognising the native title of the Noongar people over the Perth metropolitan area.[37] 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.[38]

In 2007 the Howard Government passed the Native Title Amendment Act 2007,[39] and the Native Title Amendment (Technical Amendments) Act 2007,[40] a package of coordinated measures and technical amendments to improve the performance of the native title system.[41][42] 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.

The Native Title Act 1993 was further amended by the Rudd Government by the Native Title Amendment Act 2009.[43][44] It allows the Federal Court to determine who may mediate a claim, whether that be the court itself, the Native Title Tribunal, or otherwise.[45]

The Indigenous Land Use Agreement (ILUA) was agreed with the Kaurna Yerta Aboriginal Corporation (KYAC) and effected on 19 November 2018[46] The agreement was among the South Australian government, the federal government and the Kaurna people, with formal recognition coming after the Federal Court judgement, 18 years after lodgement. This was the first claim for a first land use agreement to be agreed to in any Australian capital city. The rights cover Adelaide's whole metropolitan area and includes "17 parcels of undeveloped land not under freehold". Some of the land is Crown land, some belongs to the state government and some is private land owned by corporations. Justice Debra Mortimer said it would be "the first time in Australia that there [had] been a positive outcome within the area of (native title) determination”.[47][48]

Two years later, Kaurna Yerta started negotiations with the Adelaide City Council for office space in the North Adelaide Railway Station building. The organisation has been working since the ILUA was signed to help its community become economically self-dependent, to this end securing agreements with some partner organisations, but it needed its own office space.[48]

Yamatji Marlpa Aboriginal Corporation was involved in a large native title claim from 1996, based on the Native Title Act 1993, resulting in an historic determination in February 2020, involving both native title and an ILUA, covering an area of 48,000 square kilometres (19,000 sq mi) in Western Australia.[49]

No native title claim has ever been granted in the ACT, because of the lack of historical records enabling such a determination to be made.[54]

• Berg, Shaun, ed. (2010). Coming to terms : Aboriginal title in South Australia. Google Books. Wakefield Press. ISBN 9781862548671.
• "Walker v State of South Australia (No 2) [2013] FCA 700 (2013)". Australian Institute of Aboriginal and Torres Strait Islander Studies. 17 January 2019. His Honour quotes Kirby in Fejo, who dismissed an argument that the Letters Patent Proviso provides any protection for the rights of Aboriginal People to the occupation or enjoyment of their lands. – refers to Fejo v Northern Territory (1998) 195 CLR 96. (This case is based on s 61 Native Title Act 1993 (Cth).)