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Native Title
Disputes concerning native title raise issues which are of importance both to the local indigenous people and to the Australian community as a whole.
The history
Up until 1992, Australian courts had proceeded on the basis that when Australia was discovered by Captain Cook in 1788 it was terra nullius, an empty land. Although there were obviously indigenous people living in different parts of Australia, they were regarded as nomads with no right to any part of the land. Accordingly the British colony proceeded on the basis that the British Government (and after 1901 the Australian Government) owned all of the land in Australia from the moment of colonisation.The Mabo Decision
All this came to an abrupt end on 3rd June 1992 when the High Court of Australia delivered its landmark Mabo decision. The Meriam people led by Eddie Mabo claimed title to the Murray Islands in the eastern part of the Torres Strait Islands between Australia and Papua New Guinea based on their continuous occupation of those islands both before and since colonisation. The judges held that, "... the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands."Importantly, Chief Justice Brennan said "... there may be other areas of Australia where an Aboriginal people, maintaining their identity and their customs, are entitled to enjoy their native title."
It was clear from the time of the decision that this case did not threaten the title of those who had been granted land by the government of the day and those who had purchased land which had been the subject of earlier grants. The decision was however of crucial importance to land which still belonged to the governments of Australia or any of the states or territories.
The effect of Mabo
The effect of the decision was that potentially aboriginal communities which had maintained their identity, their customs and their relationship with their traditional lands could claim native title over those lands - provided that the lands had not already been the subject of a land grant by the government. Potentially this also applied to vast tracts of Australia which were still owned by governments but were the subject of long-term leases to Australian graziers.
The Native Titles Act
In response to the Mabo decision, the Australian Government introduced the Native Titles Act in 1993. The main objects of this Act were:What our clients say
Recent Successes
This legislation created the Native Title Tribunal which has determined claims for native title since that time. There have been major amendments to the Native Titles Act but the broad purpose and thrust of the legislation remains.
Areas of contention
One of the main areas of contention which has arisen since 1992 relates to claims for native title over land which is rich in minerals or which is sought by private enterprise to establish or develop major industries. Such disputes are not likely to go away any time soon.However community concern and therefore government attention can also be aroused when claims are made for native title over land which has become popular for community recreational purposes.
Fisheries legislation
One of the areas of contention in recent years relates to fisheries legislation. Certainly the Native Title Act makes it clear that members of the indigenous community are not required to purchase a fishing licence if they want to fish for domestic purposes -- unlike for example everyone else in NSW. However the position is a lot less clear when it comes to commercial fishing.
Commercial fishing is an important industry in Australia and NSW commercial fishermen have since the early part of the 19th century been required to hold a commercial fishing licence. Fishing was obviously a traditional activity of indigenous Australians. The question is whether commercial fishing could be regarded as a traditional activity and therefore be subject to a claim of native title. That is an important question in NSW because restrictions under the Fisheries Management Act have effectively banned commercial fishing in many parts of the state's rivers and waterways. Is this binding on indigenous fishermen?
The generally held view is that there can be no claim for native title for commercial fishing but there are cases before the court which may yet challenge that view.
Our experience
Stacks/The Law Firm has had experience both in acting for indigenous people seeking to establish native title and for respondents to such applications. We have a continuing interest in this area of the law.
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