Native Title

Erica Vibe Mr. MurphyYr. 11 Legal Studies

Native Title in

Australia

Native Title

Native title is the term used to identify the extent to which Australian Law recognises the prior rights and interests of Aboriginal and Torres Straight Islander people, under their own traditional laws, in relation to Australian land and waters.

The legal status of Native Title in Australia

Native title was not legally recognised in Australia until 1992 with the ruling of the High Court in the Mabo vs. Queensland (Mabo no.2)(1992) trial. This is more commonly known as the Mabo Decision. In result of this decision, Australian law is now in agreement to recognise Native Title. (Providing that the claimants can provide proof of a continuous connection with the land).

Though native title was recognised in 1992, the actual Native Title Act (1993 CTA) did not come into being until the 1st of January 1994.

The Native Title Act has four principle objectives:

1. To recognise, protect and set down principles in relation to native title in Australia.

2. To provide for the validation of past acts (primarily acts of Government between 1975 and 1993 that might affect native title).

3. To provide, in respect to future acts, that native title should generally be treated with the same respect as (in most places) freehold titles and also in respect of proposals for mining on native title land or for compulsory acquisition for the benefit of a third party (compulsory taking of land by Government to give to another individual or group such as an indigenous group). Native title holders should have an additional, time-limited right to negotiate, subject (in the absence of agreement) to determination by the Tribunal or even by a Government minister.

4. Provides a process by which native title rights can be established and compensation determined, and by which future determinations can be made as to whether future grants can be made or acts done over native title lands and waters.

A Native Title claim is different to a Land Rights claim. To say that somebody is claiming land implies that they are taking it away from somebody else. Native Title applicants are not claiming land. They are declaring pre-existing native title rights over a specific area of land and are seeking recognition of those rights under Australian law. Native Title is not just about land; it is about cultural and spiritual issues as well.

Native Title does not directly invalidate State laws. Rather, those which are inconsistent with the Native Title Act, will be overruled, but only to the extent of the inconsistency, by force of section 109 of the constitution. Thus, a State law may only extinguish or impair Native Title if it complies with the Native Title Act. In addition, Native Title cannot take away anyone elses valid rights, including: owning a home, holding a pastoral lease or having a mining licence. Nor can public rights of access to parks, beaches, foreshores, waterways or national parks be taken away.

The Court has wide powers in native title cases. It can:

Refer native title and compensation applications to the National Native Title Tribunal for mediation

Decide who the parties are (the people involved in a case)

Decide whether new people or organisations can become involved in proceedings as parties;

Order adjournment (breaks) of proceedings to allow time for the parties to negotiate;

Make orders to ensure that overlapping native title applications which cover the same area are dealt with in one proceeding; and

Make a determination that native title is to be held in trust.

The National Native Title Tribunal (NNTT) of Australia works with people to help develop understanding of native title and help decide on related outcomes that recognise both Indigenous and Non-Indigenous rights and interests in lands and waters.

The Tribunal functions in an unbiased and fair way. It takes into account the views and concerns of everybody involved in the native title process.

Upon request, the tribunal will aid in negotiations over proposed developments and future acts. The Tribunal acts as an umpire or mediator in situations where an agreement cannot be reached.

Johns rights to make a claim

John and his people have every right to make a native title claim, though successfully proving that their community has continued to hold a continuous traditional and cultural connection with the land since British colonisation will not be easy.

To succeed, they must establish that:

They have maintained a traditional connection with their traditional land since British colonisation

And

That their interests have not been extinguished by another act which is inconsistent with their rights, such as the grant of freehold land titles.

To make a native title claim, John and his people will need to fill out an application form. If assistance is needed to fill out the application they are encouraged to request help from the NNTT by either sending an email, writing a letter or by sending a fax. The application will then need to be sent to the Federal Court. This process is called filing.

Once the claim application has been filed the court will check as to whether it is complete and correct. It will then be sent to the NNTT.

Here, the Tribunal will apply the registration test. If the registration test is passed, John and his people will receive certain procedural rights, including the right to negotiate, for example, over mining or mineral exploration in or on the native title land. If the Tribunal chooses to reject the registration claim, John and his people have the right to ask the court to review the Tribunals decision.

Providing that the registration test has been passed, the application will be subject to mediation. This is where a tribunal member will act as an umpire to help the parties reach an agreement as to whether Native Title exists or not and, if so, who holds it.

After the initial mediation session, if John and his people are unsatisfied by the results, they can ask the court to stop the mediation and have the application heard by a judge. They can choose to attend the court hearings in person, with, or without legal representation. They may also opt to be represented by somebody who is not a legal representative.

The NNTT will then advise the public and any individuals whose rights and/or interests may be affected by the proposed native title claim. These people may then apply to the court to become a party to future mediation sessions. They will be allowed three months time to apply for this to the court. The court will review these applications and determine as to who will be allowed to become another party to the proceedings.

There is then usually a directions hearing which the applicants (John and his people), other parties and their legal representatives will attend. This is where a judge will finalise the official party list, which is then referred back to the NNTT for further mediation.

Native title determination can cover the whole application or just a part of the application. The final determination will be made by the Federal Court, the High Court or another recognised body. However, the NNTT is not a court and does not make Native Title determinations.

Once the court has made its decision as to whether or not native title exists, it will notify the NNTT and the determination will be added to the National Native Title Register.

There are three types of determinations that John and his people could receive:

Unopposed determination. Made when no one opposes the native title application.

Consent determination. Made when parties involved reach an agreement about native title.

And

Litigated determination. Made when another party opposes the application and the case has to be argued in a trial process.

Considering the circumstances of John and his people, and all of the above, rightfully, they should be eligible to receive native title. However, it is unlikely that the claim will be unopposed by the developer. Thus, it is probable that the title they receive will be either a consent or litigated determination.

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BibliographyMicrosoft Encarta 2001

www.lawlink.com.auwww.samuelgriffith.org.auwww.fedcourt.gov.auwww.aitatsis.gov.auwww.nntt.gov.auwww.liac.gov.au