The concept of native title is still relatively new in Australia. The most well-known case establishing native title is the High Court's Mabo decision of 1992. In response to the High Court's decision in Mabo, the federal government implemented the Native Title Act 1993 (NTA) to deal with other cases involving native title claims. Yet despite the NTA having been legislation for almost 20 years (it came into effect in January 1994), native title remains an unfamiliar concept to many people.
In 1982, Eddie Mabo and four other Meriam people of the Murray Islands in the Torres Strait commenced action in the High Court of Australia claiming traditional land rights over land they lived upon. They claimed that Murray Island, the surrounding islands and the reefs had been continuously inhabited since British sovereignty and had been continually in possession by the Meriam people.
Regardless of British sovereignty, the claimants said, they had continued practising their rules and laws over their lands and that these had not been extinguished by the presence of British rule. They sought recognition of these continuing rights from the Australian legal system.
In 1992, a majority of High Court justices upheld the claim. Within the ruling, the justices found that Australia was not terra nullius ("land belonging to no one") when the country was settled by Europeans, and that the Meriam people were "entitled as against the whole world to possession, occupation, use and enjoyment of (most of) the lands of the Murray Islands."
The NTA was the federal government's response to the ruling in the Mabo case.
The Native Title Act 1993
The maturity of the NTA, the increase in applicants seeking recognition of their native title rights, and the increase in resources activities in Australia has caused the NTA to be increasingly relevant. In general, where an activity is likely to affect the rights of native title holders where native title exists or is likely to exist, the parties seeking to engage in that activity must negotiate with native title holders. This requirement for negotiation, in addition to other obligations imposed on the way activities can be conducted on native title land, has changed the way that resources companies are conducting their activities.
Under s.223 of the Native Title Act, the expression native title or native title rights and interests means:
- the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
- the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
- the rights and interests are recognised by the common law of Australia."
The native title rights will differ depending on the rights and customs practices on the land by the relevant indigenous group, but may include:
- living on the land;
- accessing areas for traditional purposes;
- visiting and protecting important places and sites; and
- hunting, fishing and gathering food or traditional resources like water, wood and ochre.
In some cases the rights and interests may also include exclusive possession of the relevant land. However, it does not confer fee simple ownership to native title holders.
Rights under the NTA are recognised after claimants have applied to the National Native Title Tribunal and have established that they have been practising their laws and customs on the land continuously since sovereignty. This is usually a long and difficult process, as historical data documenting a group's links to the land generally don't exist, and they must instead rely upon oral and anthropological evidence.
For non-claimants, the NTA is very relevant when dealing with land that may be subject to native title. Amongst other things, the NTA does the following:
- provides for the validation of grants of land that were granted prior to the introduction of the NTA;
- provides guidance for future dealings in native title lands; and
- establishes a regime to determine where native title exists, who the native title holders are, and to determine compensation for activities affecting it.
Since 1 January 2004, if an entity wishes to deal with land where native title exists or is likely to exist, that entity must comply with various sections of the NTA.
Where a resources company intends to deal with land that may be subject to native title, that company must give notice to the indigenous corporation responsible for administering native title or claimants, outlining their intentions to use the land, and how they intend to use it. The parties must then attempt to negotiate in good faith to reach agreement on how the land may be used. If the parties can't come to an agreement, they can refer the matter to the National Native Title Tribunal for mediation.
The Native Title Act can be difficult to navigate. For those intending to conduct resource related activities on land which is or may be subject to native title, we recommend you seek legal advice to prevent delays in your activities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.