The Recognition of Indigenous Land Rights in Australia and Its Effect on the Land Rights of Non-Indigenous Australians

Introduction

The notion of aboriginal land rights is used to portray the return of property and land to Australia’s Indigenous population, based on the Commonwealth’s recognition of dispossession. While Australia has come a long way in ensuring such rights are protected, the journey of recognition was not necessarily smooth at all times. In 1788, Australia was founded during the English settlement on the basis of a concept known as “terra nullius”, which, according to International law, meant that sovereignty could be obtained without negotiations, compensations, or cessions, given that the land was, in theory, uninhabited, despite the fact that Indigenous populations had been living on the land for years before the arrival of the English colonies. However, this had led to a gross oversight of the rights of the Indigenous populations, which have been, at least to some extent, resolved by a series of treaties passed by the Commonwealth since the middle of the 20th century, in an effort on behalf of the Australian Government to put an end to the discrimination of the Indigenous populations and to ensure their rights are respected. While the topic of Indigenous Land Rights has undoubtedly shaped and alter Australia’s property law, it is unsure to what extent, if any, this has had impact on the land rights of other populations in the country, namely those of a non-Indigenous background. Following, this essay sets out to portray how the recognition of Indigenous land rights in Australia has had very little effect, at best, on the land rights of non-Indigenous Australians, by making reference to treaties and case trials that have entered the spotlight of Australian property law in the past decades.

Background

After a series of Indigenous protests, spanning over 2 decades, The South Australian Aboriginal Lands Trusts was established in 1966. While this marked the first milestone in Australian property law that took into account the rights of the Aboriginals, it was only in the 1970s that Australia’s Aborigines as well as Torres Strait Islanders involved themselves in politics, setting the grounds of a powerful movement, aimed to establish and protect the land right of the Aboriginals[1]. The Reconciliation Movement, established as a means to promote respect and unity between Australia’s Indigenous and non-Indigenous populations, begun with the 1967 referendum, when 90% of Australia’s non-Indigenous population voted in favour of removing clauses in the Constitution that discriminated against Australia’s Indigenous populations[2]. It was that moment in the history of Australia’s property law that marked the Commonwealth’s willingness to take into account Aboriginal affairs, which it further proved by establishing the Office of Aboriginal Affairs. Thanks to these political efforts, the way for laws and pieces of legislation that would take into account the Aboriginals and diminish the effects of discriminations was paved.

One important legislative piece that merits attention when discussing this particular topic is the Aboriginal Lands Rights Acts which acknowledged Australia’s Aboriginal populations as the traditional owners of land, for the very first time in the history of the Commonwealth legislation[3]. The basis of this legislative piece was represented by the accepted notion that the Aboriginals were traditionally the first to be associated with Australia’s territory. The importance of this first legislative act pertaining to Aboriginal land rights stems from the fact that it allowed Aboriginals to make a claim, provided that they could offer evidence of their association with the land.

The other fundamental legislative piece regarding Aboriginal land rights is represented by the Native title legislations, established after the High Court’s decision in the Mabo case in 1992, which recognises the traditional connection of Aboriginal communities to land and waters. Together, these two legislative pieces have set the foundations of what constitutes the recognition of Aboriginal land rights in Australia. In essence, the Native title includes a series of rights for Indigenous populations, ranging from the right to reside on a particular land, access for traditional use, such as ceremonial purposes, hunting, fishing, food gathering, visitation, and protection of places with a cultural significance[4]. Native Title rights can even exist on national parks or reserves, and any body of water that is not privately own. An important aspect to take into consideration when considering the Native Title rights is that they do not represent a form of legal ownership over a stretch of land. The Native Title Act was thus far amended on two separate occasions: 2007 and 2009[5]. Through the changes made to the Act it is hoped that the overall performance of the system is improved, in order to make the determination of whether native title exits or not more rapid and efficient.

Impact of the recognition of Indigenous land rights

Undoubtedly, the biggest impact of the recognition of Indigenous land rights has manifested itself on the lives of Australian Aboriginals and Torres Strait Islanders. To some extent, the enactment of the above mentioned legislative pieces has repaired some of the injustice shown towards Australia’s Indigenous communities over 200 years ago. Much of the land that had initially belonged to Indigenous communities has been rightfully returned to their ownership, allowing them to preserve and cultivate their customs and traditions.

While the official recognition of Indigenous land rights has had, and will most likely continue to have, a profound impact on the lives of Australian Aboriginals and Torres Strait Islanders, the same cannot be said when it comes to the impact this movement has had on non-Indigenous populations[6]. Because the two legislative pieces presented above represent a corner stone in Australia’s property law, it is important to evaluate how such acts and treaties have affected the country’s legislation as a whole. In order to evaluate the full extent of the recognition of Indigenous land rights, it stems as helpful to take a more in-depth look at some of the landmark legislative cases on this topic, detailed below.

The quintessential case in Australia’s Aboriginal land law is represented by the Mabo case. In 1982, Eddie Mabo stepped into the spotlight as the leader of the Meriam community in their legal battle with Queensland[7]. The Meriam community were actively attempting to make Queensland recognise that their homelands located in the Torres Strait were actually Indigenous land and that the annexation of 1879 was unlawful. During the first phase of the trial, it was established that the Queensland Government wasn’t allowed to disregard the native title rights of the Torres Strait Islanders and that the Queensland Coast Islands Declaratory Act was inconsistent with the Racial Discrimination Act and its enactment would represent an impediment of human rights[8]. This first ruling set the course for the Meriam people to seek the recognition of the fact that they had both inhabited and maintained their customs on the Island of Murray, which thus gave them right to the land. In the conclusion of the Mabo case, the High Court eventually overturned the statute “terra nullius”, marking the first time in Australia’s property law history when native title was recognised in common law.

In the aftermath of the Mabo case, other cases in which native title was granted following the principles of common law ensued. An equally fundamental case is represented by Wik Peoples v Queensland, in which the principles first held during the Mabo trial were once again recognized[9]. But another important aspect put forward by this particular case is the fact that it prove that native title could easily coexist with a number of other interests, such as, for example, a pastoral lease. In this case, the Queensland government had already granted several pastoral leases in the area the Thayorre and Wik people were claiming. However, the High Court eventually ruled that this does not mean the native title can be extinguished, and that the two interests can easily coexist with one another.

An important case to consider is the 2002 Yorta Yorta community vs. Victoria. In this case, the Yorta Yorta community claimed native title over an area consisting of waters and land situated in Southern New South Wales and Northern Victoria. Both the Federal Court and the High Court dismissed the claim, basing their decision on the fact that the community had not been able to prove their laws and customs had existed prior to the English settlement, nor that they have been sustained throughout the time[10]. While the decision led to significant unrest on behalf of the Victorian community, the case does help prove that, while the land rights of Indigenous populations have been recognized, the matter is more complex than one would think at a first sight. Properties, lands, and waters cannot be simply taken away and given to the Indigenous population. At least, not in the absence of solid proof that those particular communities have direct and lasting ties with that said land.

As shown by the Yorta Yorta case, the recognition of Indigenous land rights, and in particular the Native Title, cannot breach the land rights of other populations in Australia, namely non-Indigenous populations. The act does not entitle Aboriginals to simply claim a land and take it. According to Australian property law, the Native Title cannot invalidate another person’s right, which includes the private ownership of a property, a mining license, or a pastoral lease[11]. While traditional connections to the land are taken into account, it cannot be maintained when Governments legislative pieces have removed this connection. Therefore, it can be concluded that, while the Native Act title does ensure that Aboriginal populations gain access to the land they have maintained connections with, this land or property cannot be taken away from people who have gained rightful ownership of that said land and/or property. Consequently, in this regard, the recognition of Indigenous land rights has had no effect on the land right of non-Indigenous Australians.

In order to more easily resolve situations where multiple interests exit over a single area of land, mediation is often employed in claims of native title. Mediation is commonly handled by the National Native Title Tribunal, but other organisations can also be appointed by the Federal Court. As opposed to determining whether grounds for native title exit or not, a mediator’s responsibility is to mediate contested applications as well as claims for compensations[12]. In particular, mediators are called to action in cases when Indigenous communities make claims of native title for lands used by the Government, the state and territorial governments, pastoralists, and miners. The mediation process is mandatory for all such claims and can only be terminated voluntarily by either of the two parties 3 months after its inception. Furthermore, a vast majority of such cases handled nowadays are settled through voluntary agreements or consensual determinations of the status of native title, which makes the process faster and more efficient.

As evidently proven by the selection of cases in Australia’s property law, it is evident that the recognition of Indigenous land rights does little to affect the land rights of non-Indigenous populations in Australia. While native title has enabled numerous Indigenous communities to regain full access to the lands and waters that were traditionally theirs, this title is extinguished in cases of privately owned land/property, land under commercial, residential, or other type of leases, and areas used by the Government for public functions, in particular roads and schools[13]. These exemptions manage to ensure that non-Indigenous communities that have either purchased or build a home, or who make use of public services are not affected and are not obliged to give up land they lawfully have access to[14]. This, coupled with the fact that native title cases are often solved through agreements further ensures that the land rights of the non-Indigenous populations are affected to a minimum.

Conclusion

Over the past few decades, Australia has struggled with resolving the disparities between its Indigenous and non-Indigenous populations in many regards, and property law is no exception. Though important legislative strides have been made to resolve some of the unfairness caused by the English settlements of Australia back in the 18th century, the effect this has had on the land rights of non-Indigenous populations is minimal at best. While the recognition of Aboriginal land rights has tried to reduce disparity between Indigenous and non-Indigenous populations, the efforts of the Australian government have impeded the land rights of the latter category to a minimum. Probably the most important aspect to consider in this regard is the fact that, while native title and Aboriginal connections with land and waters are currently respected in Australia, this does not entail that private owners face the risk of losing their properties. Furthermore, areas used for public services are neither affected by the native title. In addition, native title cases are often solved through agreements, which further ensure that the Aboriginal land rights do not, in any way, negatively impact the land rights of non-Indigenous communities. Arguably the most important progress made by Australian Government in this department is the fact that it has manage to recognize the rights of Australia’s Aboriginals and Torres Strait Islanders without affecting the rest of its population. As clearly shown by the cases presented in this essay, the recognition of Aboriginal land rights has had a positive effect on the lives of Australia’s Indigenous communities, without impeding or breaching the rights of other residents.

[1] Damien Short. Reconciliation and Colonial Power: Indigenous Rights in Australia (MPG Books 2008). 22. It was the first time in Australia’s history when its Indigenous populations actively involved themselves in politics and legislations, in order to ensure the recognition and protection of thir land rights.

[2] Australian Government. Reconciliation (9th August 2013) < http://australia.gov.au/about-australia/australian-story/reconciliation>. The referendum also acknowledge voting rights for Indigenous populations and granted them with citizenship status.

[3] Aboriginal Land Rights (Northern Territory) Act 1976. 3. Through the enactment of this legislative piece, nearly 50% of Australia’s Northern Territory was transfered to Indigenous ownership. Another legislative piece, the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act of 1981 ensured the same rights in South Australia.

[4] Native Title Act 1993. 2. Non-discriminatory protection of the Native Title is considered a human right.

[5] Native Title Amendment Act. 2007

[6] Jackson, S.; Altman, J. Indigenous Rights and Water Policy: Perspectives From Tropical Northern Australia. Austl Indigenous L Rev. 2009. 27. Large surfaces of land and waters have thus far been returned to Indigenous communities and it expected that further land will be returned as more and more native title claims are resolved by Australia’s judicial system.

[7] Mabo and Others v. Queensland. 1982-1992. There were actually two cases that were judged under the name of Mabo v. Queesnland. The trial lasted for a whole decade.

[8] Queensland Coast Islands Declaratory Act 1985. 27.321. Not enacted. Racial Discrimination Act , 1975

[9] Wik Peoples v. Queensland. 1996

[10] Yorta Yorta Aboriginal Community vs. Victoria. 2002.

[11] Adrian J Bradbrook, Susan V MacCallum, Anthony P Moore & Scott Grattan  Australian Real Property Law (Thomson Reuters 5th ed, 2011) 45.

[12] Department of Foreign Affairs and Trade (Australia). Reconciliating customary owenrship and development. < http://aid.dfat.gov.au/Publications/Documents/MLW_VolumeTwo_CaseStudy_6.pdf> 6. Nowadays, native title applications are commonly resolved to the use of voluntary Indigenous Land Use Agreemens and/or consesual determinations.

[13] B. Edgeworth, C.J. Rossiter, M.A. Stone and P. O’Connor, Sackville and Neave Australian Property Law (LexisNexis: 8th ed, 2008). 45. These regulations ensure that non-Indigenous people do not lose access to areas and spaces that is rightfully theirs, even in cases where native title claims might be raised.

[14] S. Hepburn, Australian Property Law: cases, materials and analysis (LexisNexis: 2nd ed, 2012). 35.

References

  1. Articles/Books/Reports

Adrian J Bradbrook, Susan V MacCallum, Anthony P Moore & Scott Grattan  Australian Real Property Law (Thomson Reuters 5th ed, 2011)

  1. Edgeworth, C.J. Rossiter, M.A. Stone and P. O’Connor, Sackville and Neave Australian Property Law (LexisNexis: 8th ed, 2008)

Damien Short. Reconciliation and Colonial Power: Indigenous Rights in Australia (MPG Books 2008)

  1. Hepburn, Australian Property Law: cases, materials and analysis (LexisNexis: 2nd ed, 2012)

S., Jackson; J., Altman.Indigenous Rights and Water Policy: Perspectives From Tropical Northern Australia. Austl Indigenous L Rev. 2009

  1. Cases

Mabo and Others v. Queensland. 1982-1992

Yorta Yorta Aboriginal Community vs. Victoria. 2002

Wik Peoples v. Queensland. 1996

  1. Legislation

Aboriginal Land Rights (Northern Territory) Act 1976

Native Title Act 1993

Native Title Amendment Act. 2007

Racial Discrimination Act , 1975

Queensland Coast Islands Declaratory Act 1985.

  1. Other

Australian Government. Reconciliation (9th August 2013) < http://australia.gov.au/about-australia/australian-story/reconciliation>

Department of Foreign Affairs and Trade (Australia). Reconciliating customary owenrship and development. < http://aid.dfat.gov.au/Publications/Documents/MLW_VolumeTwo_CaseStudy_6.pdf>

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