Native Title Act

When the British invaded our country, they falsely claimed it was ‘terra nullius’ which is a Latin term meaning ‘land belonging to no one’.

As a result of this claim they were able to colonise the land and our people without the need of a treaty or payment of any kind.

Terra nullius denied our existence and connection to land we have lived on and protected since the Dreaming.

Mabo vs Queensland 1992

Uncle Eddie ‘Koiki’ Mabo was a Meriam man born in Las on the island of Mer (Murray Island) in the Torres Strait. He was traditionally adopted by his Uncle and Aunt. Mabo vs Queensland No1 was about individual rights to land and was eventually lost however Mabo vs Queensland No2 focused instead on the rights of the community to the land as Meriam people. A majority of judges found that Meriam people have ‘native title’ to their land, based on their traditional connection to and occupation of their Country that can be recognised in Australian law.

This ruling effectively discredited the idea of terra nullius.

You can read more about Uncle Koiki and his fight for land rights here.

Image: Eddie Koiki Mabo, AIATSIS.

The Legislation

1993 Native Title Act

Following the Mabo case there was now an uncertainty regarding land rights and native title. This prompted the government to pass legislation in relation to these issues and by the end of 1993 the Native Title Act 1993 (Cth) was passed.

The Native Title Act aimed to achieve four main objectives

To provide for the recognition and protection of native title.
To establish ways in which future dealings affecting native title may proceed and to set standards for those dealings.
To establish a mechanism for determining claims to native title.
To provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.

For native title to be recognised, those making the claim must be able to prove that traditional connection to the land and waters of the area has been maintained and that it has been handed down through traditional lore and customs since before colonisation.

A National Native Title Tribunal was set up as part of the act. Its role is to conduct enquiries, mediate and assist parties with their native title applications and Indigenous land use agreements.

Native title can only exist in areas of Crown land including:

Vacant Crown land
Some national parks, forests and public reserves
Some types of pastoral leases
Beaches, oceans, seas, reefs, lakes, rivers, creeks, swamps and other waters that are not privately owned.

Unfortunately, even if the claim is successful it doesn’t always mean exclusive rights. If the rights of pastoralists, mining companies, federal government, or private owners come into conflict with native title rights, they override the native title rights. This was determined in the Wik Case.

Wik vs Queensland

On June 30, 1993, the Wik and Thayorre peoples made a claim in the Federal Court of Australia for native title to land on Cape York Peninsula in Queensland.

The area the Wik people were making a claim for happened to include land where two pastoral leases had been issued by the Queensland government. The Wik and Thayorre peoples argued that native title and pastoral leases coexisted on Holroyd from 1945 and on Mitchellton for almost all of the time between 1915 and 1920 and therefore, a precedent had been set that it was possible for the two types of land rights to apply to the one piece of land.

The judge ruled that the Wik people’s native title was extinguished by pastoral leases over their land. As well as this, any native title rights the Wik had to minerals or petroleum in their country had been extinguished by state legislation which transferred ownership of those resources to the Crown.

To read more about the Wik Peoples vs Queensland case you can check out their website, www.wikvsqueensland.com

Image: Aunty Gladys Tybingooompa speaks to media after the High Court decision in 1996, Wik Vs. Queensland. (permission pending).

Traditional Owner Settlement Act 2010 (Vic)

The Traditional Owner Settlement Act 2010 (Vic) gives an alternative process for resolving native title applications. The Settlement Act lets the Victorian government negotiate an out-of-court settlement with traditional custodians that recognises them and their rights to land. The land must be ‘public land’ including crown land, reserves, national parks, state forests, etc.

If mob decide to go through the Settlement Act they must agree to withdraw any native title applications and not make any new ones. If their claim is successful they will negotiate with government over a settlement package which may include:

a Recognition and Settlement Agreement to recognise a Traditional Owner Group and certain Traditional Owner rights over Crown land
a Traditional Owner Land Management Agreement which provides for the joint management of national parks and reserves
a Land Use Activity Agreement which allows Traditional Owners to comment on or consent to certain activities on public land and includes the payment of compensation for some activities
a Natural Resource Agreement to recognise Traditional Owners’ rights to take and use specific natural resources and provide input into the management of land and natural resources

Native Title Claims Victoria

Yorta Yorta

In 1994 the Yorta Yorta people made a native title claim, this was the first claim to be made after the passing of the 1993 Native Title Act. The claim was contested and ultimately resulted in a negative determination in 2002. However in 2004, the Victorian Government entered into a co-operative management agreement with Yorta Yorta meaning that certain public areas such as national parks are co-managed by the government and the Yorta Yorta people.

You can read more about the Native Title case here and the co-management agreement here and here.

Wotjobaluk Peoples

Not long after the Native Title Act passed the Wotjobaluk, Jaadwa, Jadawadjali, Wergaia and Japagulk peoples, collectively known as the Wotjobaluk peoples lodged a native title claim and in 2005 these rights were recognised by the courts.

You can read more about it here.

Gunditjmara

In 1996, the Gunditjmara people lodged a native title claim over what was then seen as Crown Land. The claim included state forests, national parks and recreational reserves. Finally, on the 30th of March 2007, a native title consent determination was agreed upon. Native title was recognised across 140,000 hectares (1400 square kilometres) of land, including national parks, reserves, rivers, creeks and sea.

You can read more about it here.

Dja Dja Wurrung

In 2013 after 18months of negotiations the Dja Dja Wurrung people entered into a Recognition and Settlement Agreement which formally recognises Dja Dja Wurrung people as the traditional owners for part of Central Victoria. It also gives them rights to practice culture and use their lands resources among other things.

You can read more about it here.

Taungurung

In 2018 the Taungurung people entered into a Recognition and Settlement Agreement which formally recognises Taungurung people as the traditional owners for part of Central Victoria. The agreement gives them rights to natural resources, grants parks and reserves such as the Mt Buffalo National Park to Taungurung to be jointly managed and access to use jointly managed lands among other things.

You can read more about it here.

Sources

Australians Together, Mabo and Native Title
AIATSIS, About native title
ANTaR Victoria, Local Nations
Wik vs Queensalnd, THE WIK CASE
Barengi Gadjin, GROWING WHAT IS GOOD COUNTRY PLAN