Australian Indigenous Law - Assignment Example

In the broad subject area of Australian indigenous law, issues relating to native title have become increasingly prominent. Australia as a nation has attracted a lot more attention where the claims of the indigenous population over the domestic resources (esp. land) are concerned. In general, Australia had a situation quite unlike other nations faced with the problems of an indigenous population. Originally, the doctrine of Terra Nullius was in place and this meant in essence that aboriginal people had no claim to land, unlike other indigenous population1. While statute and common law have given land rights to the Aboriginal and the Torres Strait Islanders, the efforts have been very few and have taken place only recently. ‘Native Title’ is the term that is used by Australian Law to describe traditional Aboriginal land rights. The term encompasses the very different resource uses of different tribes with differing customs and traditions, occupying a wide variety of geographic environments. The statute is the Native Title Act 1993 which includes the following definition of the expressions “native title” and “native title rights and interests” which in turn refers to traditional laws and customs and the common law. “223 Native title Common law rights and interest: The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where2: 1. rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and 2. the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and 3. the rights and interests are recognised by the common law of Australia”. The native title also covers the contentitious areas of Hunting, gathering and fishing. The laws states that, “Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests”. The statutory definition given in the Native Title Act closely follows this formulation. On 3 June 1992 the judgment in Mabo v the State of Queensland, was given by the High Court of Australia. It was also recognised that the common law of the country should provide recognition to these customary rights3. In the Mabo judgment the High Court gave recognition to an assertion that had been put forward by Eddie Mabo on behalf of the Meriam people of the Island of Mer in the Murray Islands in the Torres Strait. The claim stood that the Meriam people had ownership of the land under the duress of common law by virtue of the fact that they were the customary owners of their country under Islander law and custom. The Mabo case defined native title as a right that exists when an indigenous community can show that there is a continuing association with the land and that no explicit act of the government, federal or state, has extinguished that title4. This means in essence that the court acknowledged the existence of rather than created native title and its existence. Ttraditional property interests had been extinguished long ago. It was estimated that in the result in the Mabo case would assist only 5 per cent on the Indigenous population5. There are several factors that explain the High Court’s decision to overturn the doctrine terra nullius when it did. 1. there was an evolving political climate in 1992 where there was a better understanding of the experiences of the Indigenous people in Australia and a greater respect for the culture of the Indigenous population by the dominant Australian culture. 2. The Court could frame the finding so that it was in effect, a narrow concession. Given the amount of removal of Indigenous people from traditional land as a government policy since the time of the invasion up until the time of the decions making process, there are very few Indigenous groups that would fulfill the criteria of native title, especially, the need to demonstrate a continuing attachment to the land as an entity 3. The court ignored meant serious questions that the recognition of the native title raised, leaving those to be decided by future litigation. These included: Whether pastoral leases and mining leases extinguish native title (this was in fact not raised as an issue); and 4 Indigenous people have become better organized and more adept at using the legal system now that most communities have representation through agencies such as the Aboriginal Land Councils and other Community based organizations. Following the Mabo case, the Native Title Act was enacted by the parliament in 19936. The Act in principal affected a change in the extent to which acts of sovereign authority extinguish or diminish native title; and lay down a system of compensation for loss of rights by virtue of acts of sovereign authority. The basic idea behind the Act was to ensure that there was a validation of all existing land grants. It was also to ensure that states would validate existing land titles without the suspension of the Racial Discrimination Act (1975) by the usage of a provisions that would be designed to ensure that the Aborigines got the rights to negotiate. Finally the Act was to ensure that lessees’ right to have primacy over those of the native title-holders7. This would mean in turn that Aborigines would be able to negotiate over the land but could not veto its use. If one was to outline its provisions one would find that the act: 1. recognised and seeked to defend native title; 2. provided that native title could not extinguished contrary to the Act 3. provided for agreement making - Indigenous Land Use Agreements (ILUAs); 4. validated any past grants of freehold or leasehold interests that were thrown into doubt by the Mabo decision; and 5. Created a National Native Title Tribunal to administer claims to land by Aboriginal people. The judgment stated that only inhabitants indigenous at the time of colonization and their descendants could hold native title and the only form of native title they could hold is that which reflects that connection that they have with the land under particular laws and customs. In other words, each tribe has its own native title, the substance and content of which is dictate by the laws and customs by which they consider themselves to be bound, and there can be no question of transfer of any of those rights outside te tribe, either to a member of another tribe or to anyone else. Native title is therefore inalienable. The only form of alienation envisaged was surrender to the Crown, which would in turn result in th ultimate surrender of the crown. Later developments: There were certain issues that the Mabo case failed to deal with. These became points of contention later and led to further litigation and judgments. One of the issues was that once a tribe has established native title over an area, does this automatically mean that it has general usage rights over the area, akin to ownership? If so, the tribe would then be treated as having control over the area and entitled to resist all incursions, not just those infringing specific rights, and it would also become entitled to all resources found there (such as oil and minerals) just as a common law owner would. This would then also mean that any past government grant of property rights in that geographic area would need to be treated as inconsistent with the native title and therefore as having extinguished it. If, on the other hand, a successful claim to the native title merely confirmed the right to use the territory in the manner it has always been used, the claimant would get no right of control over the area or the rights to natural resources unless it can prove that it always had them. This would open up greater possibilities for the co-existence of native title and private property rights. This was a significant step taken in Wik Peoples v Queensland8. It was established in this case that both pastoral leases and the native title claimed by the tribes in that case conferred only specific use rights rather than general use rights, so that, to the extent that they were not specifically incompatible, the one would not have extinguished the other. While the consequences of this decision have largely been reversed by the Native Title Amendment Act, 1998, this ‘bundle of rights’ approach has been followed in subsequent cases and severely criticized by commentators who see it as an unjustifiable limitation on the scope of native title9. The judgment in the Wik Peoples and Thayorre People v The State of Queensland (1996) 187 CLR 1 clarified the position of the Native Title in relation ti pastoral leases. The judgment stated that 1. pastoral leases do not necessarily extinguish native title; 2. Where the rights of the title-holders and pastoralists are inconsistent, the rights of the pastoralist would prevail. The Wiki decision like the Mabo case before it caused controversy and resulted in the amendment of the Native Title Act in 1998. Since then there have been cases that have dealt with the residual issues related to native title. In Yamirr v Northern Territory [2001] HCA 56, The High Court held that native title could exist to the sea and seabed (for offshore areas such as islands, and in this instance Croker Island). The Court found that indigenous people did not actually have to actually live on, or travel to, their lands in order for native title to exist. In Western Australia v Ward [2002] HCA 28, the Mirriwund Gajerrong made a native title claim on 8000 km of land in the Kimberly Ranges, incorporating mineral deposits, irrigation areas, national parks and pastoral lands. The High Court however found that there were no native rights over mineral and oil deposits. It also found that Native title is made up of different rights Native Title can be partially or completely extinguished Native title does not exist over mineral and petroleum deposits in western Australia. However, the court found that some rights can still co-exist with these deposits. In Yorta Yorta Aboriginal Community v Victoria &o’rs [2002] HCA 58 it was established that the Yorta Yorta people did not have a claim over 200 km stretch of public land in Victoria an NSW10. The Court found that the Yorta-Yorta people failed to prove that unbroken laws and traditions had regulated them. Because of this, native title did not exist. Both the above-mentioned cases in fact have been seen as major setbacks to native title claims and related evolution in Australia. In Milirrpum v Nabalco Pty Ltd it was decided that whatever the nature of the aboriginal relationship, with the land that inhabited, the land under contention in native title cases were proprietary if the native title was established. Finally, one more really important case, was the judgment in Anderson v Wilson11. In this case it was The Native Title Act contemplates that native title rights may be extinguished prior to its commencement. The ultimate issue was whether any native title rights that might exist were extinguished by the grant of the lease, resolved by application of general law principles of extinguishment of native title. The references in the Western Lands Act to a “lease” did not necessarily refer to a lease in the common law sense of one conferring a right to exclusive possession, enforceable against the entire world. In Fejo v Northern Territory, the High Court dismissed an appeal from the applicants for the land noting that a grant of an estate in fee simple is the highest estate known to the law and will necessarily extinguish any native title because of the fact that the rights held by a fee simple owner are inconsistent12. In the State of Western Australia v Ben Ward13 a Full Court considered the rules of evidence and proof to establish native title. The trial Judge Lee J held that native title is a common law concept which is not defined or moulded to equate with estates, rights or interests in land which form the law of real property at common law. Native title does not confirm to traditional common law concepts and is to be regarded as unique. In Delamuukw v British Columbia it was held that there needs to be a clear and plain expression of intention by Parliament to bring about the extinguishment and that there be an authorized legislation which demonstrates the exercise of permanent adverse dominion as contemplated by the legislation. Although it is true that native right has often been thought as being conceptualized and perceived as a property right, with parallels to many other property rights, this in process has been a recent development. An overall appraisal of the native title would not be complete without a comparison with the British rules and the English customary rights wherein it undoubtedly emerges as being a lot more flexible. It was envisages in Mabo, that it might change the content if the community adapts its way of life to meet changing conditions, although the judges do appear to have in mind a gradual evolutionary change rather than a swift, radical alteration14. This however is not considered a possibility in English customary rights. One of the most significant nuances of the Native Title Act, 1993, is that it can be surrendered to the state in exchange for other rights, even private property rights. Customary English law offers no such mechanism of exchange. Abandonment: it is also to be understood that native title is defined by reference to the connection which a community has with a territory under the laws and customs by which it feels itself to be bound, it must follow that it will be lost if the community loses that connection to the territory. It will have lost that connection, by this view, if the community has ceased to observe the relevant customs. Equally, the connection will be considered lost if the community itself ceased to exist because the last of its members died. There have been reservations expressed about this principle especially by the likes of Deane J and Gaudron J. The principle however is the voice of the majority in the Mabo case and was in turn confirmed with the passage of the Native Title Act, 1993. On the basis of all the cases discussed and the Native Title Act, 1993 with subsequent amendments one could conclude the analysis by stating the fact that there are certain areas like the impact of pastoral leases on native title, the permanent effect of certain acts, the continuance of native title rights despite various laws regulating hunting, fishing and gathering and the extent to which native title rights are recognised to areas of sea and sea bed where the native title and its progressive legislation and judgments have answered questions that have arisen. One cannot state that the work done on the issue and its complete resolution is complete since there are still issues that could be contentious at a later stage. These include problems such as the ‘tide of history’, How native title is supposed to be characterized,. There are also the minor issues at hand like whether or not native title can be partially extinguished and the range of acts extinguish native title. It can therefore be stated in the final analysis that there would be some issues that would always be unresolved because of the nature of the issue at hand, but keeping in mind its intricacies, the Australian legal system has without doubt since the Mabo case, pursued the issue with a single minded fairness and the progress has certainly been remarkable. References: Aborginal and Torres strait Islander Social Justice Commission, 1993, First Report 1993, Australian Government Publishing Service, p16 Barlett R, 2003, Humpies Not Houses or the denial of Native Title: A Comparative Assessment of Australia’s Museum Mentality, pub, Research Publishing Behrendt L, 2003, Achieving social justice: Indigenous rights and Australia’s Future, pub, The Federatio Press, pp41-48 Brassil B, 2000, Excel Preliminary Legal Studies, pub, Pascal press, pp80-82 Clarke A and Kohler P, 2005, Property Law: Commentary and Materials, pub Cambridge University Press, pp173-177 Hepburn S J, 2001, Principles of Property Law, pub, Routledge, pp139-145 Native Title Act, accessed September 2, 2009, < http://www.ourcivilisation.com/cooray/mabo/chap43.htm> Native Title Act, accessed September 2, 2009, < http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/N/NativeTitleQA93.pdf Mabo v Queensland, case summary, accessed, September 2, 2009, < http://www.atns.net.au/agreement.asp?EntityID=741> Mach G D, Ziegert K A and Tay A E, 2004, Law and Legal Culture in Comparative Perspective, pub, Franz Steiner Verlag Publications, p356 Neate G, 2002, The Development of the notion of Legal Notion of Native Title in Australia, pub, Australian Property Institute and University of Queensland Tradition vAuthenticity: The Yorta Yorta Case, accessed September 2, 2009, < http://ntru.aiatsis.gov.au/research/yorta_yorta/yortayorta.pdf> Young S, 2008, Trouble with Tradition: native title and culture change, pub, The Federation Press Read More