Native Title is the name given by Australian law to Indigenous peoples’ traditional rights to their lands and waters. Those rights can range from a relationship similar to full ownership through to the right to go onto the land for ceremonies or to hunt, fish, or gather food and bush medicines. To have their native title rights recognised, the Indigenous group has to prove they still have connection with their country according to their own traditional laws.

The first Australian recognition of native title came in the Mabo Case of 1992 where the High Court recognised the native title rights of the Meriam people of the Torres Strait. This decision rejected the doctrine of terra nullius a Latin term meaning land of no one which had formed the legal basis for British occupation of the continent in 1788.  The idea of terra nullius had been used by Britain and other colonial powers to deny the existence of Indigenous law and land ownership, and negated the obligation to secure treaties with the traditional owners. The idea that Australia did not belong to anyone at the time of European settlement had always been absurd, but the High Court’s recognition of native title was a watershed in that it invalidated the fundamental premise of Australian colonisation that of peaceful settlement of an empty continent.

When the High Court said that Australian law recognises native title, it meant that the law recognises the ongoing existence of these customs and traditions through which Indigenous people have a connection to their land. Native title is therefore not a new form of title created by the High Court, but rather a legal recognition of those rights that Aboriginal and Torres Strait Islander people have always had.

In 1993 the Native Title Act was passed to recognise and protect surviving native title rights throughout Australia and set up a process for settling claims and conflicts about native title. The Act confirmed that native title had been extinguished on all freehold land, as well as the majority of leasehold land. It established the Native Title Tribunal to mediate claims, provided for negotiation of land use, and set out the priority between native title and other land titles.

The Wik people of Cape York tested a grey area of the Native Title Act in regard to whether pastoral leases granted by the Queensland government constituted a valid extinguishment of their native title rights. Not equivalent to freehold land, pastoral leases are generally issued to allow grazing of livestock on Crown land. In its 1996 decision on this case, the High Court said that native title can only be extinguished by a law or an act of the government which shows a clear and plain intention to extinguish native title. This meant that native title rights were not precluded in these cases, and that while pastoral leases were secure, leaseholders did not have a right to exclusive possession of the land. In practice, Aboriginal people could, for example, conduct traditional ceremonies, or camp and fish on the land, as long as this did not interfere with pastoral business. Each case was to be negotiated to ensure that the rights of each party could co-exist.

The Wik decision was attacked by many conservative interests across the country and generated an enormous amount of discussion about the implications for Aboriginal people and leaseholders. The Wik case became a major focal point for the new Howard government’s efforts to erode the rights gained through Mabo. In 1998 the government amended the Native Title Act to wind back the rights of native title holders and claimants. The amendments weakened their rights to negotiate, confirmed and validated the extinguishment of native title on a range of leases and other land tenures, limited native title holders right of access to pastoral leases, and made it more difficult to register native title applications. Indigenous land use agreements were introduced as an alternative to settling claims through formal determination procedures.

Australian law now gives all other land titles priority over native title. It should be noted that the United Nations International Committee on the Elimination of Racial Discrimination has found that some of the amendments to the Native Title Act are racially discriminatory, since they wholly prefer the rights of non-Indigenous title holders.

Main Source: Face the Facts: Some Questions and Answers about Refugees, Migrants and Indigenous People, Sydney, Human Rights and Equal Opportunity Commission, 2001 and 2003. For more information, see, or contact ANTaR