MKTG1001 Lecture Notes - Arnhem Land, Papyrus 66, Native Title Amendment Act 1998
Week 4: Indigenous Australians and the Law.
Native Title:
At the time of colonisation, Australia was considered to be terra nullius and all indigenous concepts
were disregarded by new settlers. They brought with them the English property law concept that all
title to land belonged to the Crown, which had a destructive effect on ATSI population.
Mabo and the Native Title Act 1993 (Cth):
The first major step to recognise and preserve Aboriginal connection with the land was the passage
of the Aboriginal Land Rights (Northern Territory) Act 1976 (cth), which allowed blocks of land in NT
to be granted to land trusts if traditional Aboriginal land ownership could be proven. This was a
response to the decisions in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141- that, although there
were traditional customs and laws regulating relations of Indigenous people with land, such laws
were not recognised by Australian common law.
A major development in common-law approach to land rights took place in 1992, with HC’s
landmark decision in Mabo v Queensland [No 2] (1992) 175 CLR 1. The Mabo litigation began in
1982, when Eddie Mabo, a TSI, and a group of other Islanders, began a battle to have their
traditional land ownership recognised. In this decision:
HC didn’t question that Aus was a settled colony.
HC didn’t question radical title to all land vested in Crown.
HC DID observe that Australia was no terra nullius.
HC held it was appropriate to change common law rule to recognise Crown’s radical
title coexisted with a beneficial native title.
Thus, if group of ATSO could show that they had exercised traditional rights over
land since before colonisation, law would recognise those traditional rights.
HOWEVER, if Crown had exercised its title to land, either by using it itself or selling
or granting it to someone else, native title might be extinguished.
In response, Commonwealth passed the Native Title Act 1993 (Cth) (NTA) to clarify and simplify
process by which ATSI could make land claims. Act defines native title in s 223 in terms of:
“rights and interests… possessed under the traditional laws… and the traditional customs
[of] Aboriginal People or Torres Strait Islanders [who], by those laws and customs, have a
connection with the land or waters.’
Section 225 requires Federal Court, when making native title determination, to specify on matters
including determination area, persons or group holding the rights, the nature and extent of the
rights, and whether or not the Native title holders have ‘possession, occupation, use and enjoyment
of that lend or waters…to the exclusion of others.’
It also set up the National Native Title Tribunal to mediate native title disputes and assist in
resolution of land claims, and recommend government on related issues.
Aimed to provide mechanism for effective and efficient implementation of the common law as laid
down in Mabo.
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Document Summary
At the time of colonisation, australia was considered to be terra nullius and all indigenous concepts were disregarded by new settlers. They brought with them the english property law concept that all title to land belonged to the crown, which had a destructive effect on atsi population. Mabo and the native title act 1993 (cth): A major development in common-law approach to land rights took place in 1992, with hc"s landmark decision in mabo v queensland [no 2] (1992) 175 clr 1. 1982, when eddie mabo, a tsi, and a group of other islanders, began a battle to have their traditional land ownership recognised. Hc didn"t question that aus was a settled colony. Hc didn"t question radical title to all land vested in crown. Hc did observe that australia was no terra nullius. Hc held it was appropriate to change common law rule to recognise crown"s radical title coexisted with a beneficial native title.
