M4 - Learner Manual

6. Comparing Land Rights & Native Title Processes

Native title, although dealing with the subject of land rights, is very different from Land Rights as claimable under the Land Rights Acts of the various states and territories throughout Australia.

The original Northern Territory land rights model, as distinct from native title, was the first of its kind in Australia. Mick Dodson has described the legislation as “a resilient and uniquely powerful piece of legislation”.[1]  The other states and territories have now also enacted their own Land Rights legislation. For instance, in New South Wales, the Minister who administers the Crown Lands Act 1989 (NSW), determines Aboriginal land claims under the Aboriginal Land Rights Act 1983 (NSW). If a claim is successful, land can be transferred in the form of freehold title to the claimant Aboriginal Land Council. The Aboriginal Land Council with the decision of members can develop and/or sell the land as long as it has received the appropriate approval of the New South Wales Aboriginal Land Council.

The key features of Aboriginal Land Rights schemes are that Aboriginal people are given strong title to land, which they do not receive through native title determinations, and are given control of vital decision-making over their land.[2]

The different legal tests

Under the Native Title Act 1993 (Cth):

In order to receive a determination of native title, and thus a determination that pre-existing rights in land survived colonisation and continue today, it must be proved that:  

·      The claimants have rights and interests in the land that are possessed under traditional laws acknowledged and traditional customs observed

·      The people have maintained their connection with the land; and

·      Their title has not been extinguished by legislation or any action of the executive arm of the government inconsistent with that title.

This is not a simple task. In fact it is quite an onerous process. Native title claim groups usually need to provide evidence about:

·      The identity of the claimants

·      Their traditional language

·      Their connection to country and responsibilities to the land

·      Their social and cultural system and the law and custom which is acknowledged and observed

·      Their rights and interests in land and water, and

·      Traditional activities carried out by claimants on their country.

This evidence is usually presented in the form of expert anthropological and historical reports and in affidavit statements provided directly by individual members of the native title claim group.[3]

 

What constitutes extinguishment?

The question of extinguishment is complex and involves consideration of common law and statute.[4]

The common law’s position on extinguishment began with the decision in Mabo (No 2) and has continued to develop in the Federal and High Court (see for example the Wik decision and the decision of Wilson v Anderson[5]). In Mabo, it was held that native title could be extinguished by a ‘clear and plain intention’ to extinguish native title. This is commonly achieved by:

1.    A legislative provision expressed to extinguish native title.

2.    An inconsistent grant of an interest in land over with native title subsists inconsistent with those rights.

3.    Acquisition by the Crown of native title land.

Section 237A of the Native Title Act 1993 (Cth) states that extinguish, in relation to native title, means permanently extinguish the native title and thus that after it is extinguished it cannot be revived.[6]

 

Under the Aboriginal Land Rights Act 1983 (NSW):

The legal test for recognising Land Rights is very different from native title. To make a claim under land rights legislation, the claimant does not need to show a continuing connection to land through traditional customs and lore. The test for land rights evolves entirely around the nature of the land being claimed, namely whether the land can be classified as claimable Crown land.

Local Aboriginal Land Councils or the NSW Aboriginal Land Council, on behalf of local Aboriginal communities, are able to claim certain Crown lands and have them transferred to the Land Council in the form of freehold title. As compared to native title, this form of title gives Land Councils exclusive possession over the land and the right to dispose of it as they see fit (within the bounds of certain regulatory requirements).

What applications can be made and who by?

Under the Native Title Act 1993 (Cth):

The following table sets out the various claims that can be made and who may make such claims under the provisions of the Native Title Act 1993 (Cth):

Applications
Kind of application	Application	Persons who may make application
Native title determination application	Application, as mentioned in subsection 13(1), for a determination of native title in relation to an area for which there is no approved determination of native title.	(1) A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or  (2) A person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought; or (3) The Commonwealth Minister; or (4) The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned.
Revised native title determination application	Application, as mentioned in subsection 13(1), for revocation or variation of an approved determination of native title, on the grounds set out in subsection 13(5).	(1) The registered native title body corporate; or (2) The Commonwealth Minister; or (3) The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned; or (4) The Native Title Registrar.
Compensation application	Application under subsection 50(2)for a determination of compensation.	(1) The registered native title body corporate (if any); or (2) A person or persons authorised by all the persons (the compensation claim group ) who claim to be entitled to the compensation, provided the person or persons are also included in the compensation claim group.

In every application, members of the native title claim group must be identified. This can be done by naming every member of the native title claim group or through naming the ancestors of the members, as members are usually related and descend from the same ancestors. Evidence must be presented that identifies the native title claim group as descendants of the traditional owners of the land before colonisation. This can be argued through presenting recorded historical, archaeological and anthropological information.[7] It is essential that the members are united by their cultural system of traditional law and custom and that the applicants are authorised to make the application by the traditional owners of the land.[8]

 

Under the Aboriginal Land Rights Act 1983 (NSW):

The Aboriginal Land Rights Act 1983 (NSW) provides only for the New South Wales Aboriginal Land Council (NSWALC) and Local Aboriginal Land Councils (LALCs) to make claims for claimable Crown lands[9].

• NSWALC may make a claim for land on its own behalf or on behalf of one or more LALCs- section 36(2)
• One or more LALCs may make a claim for land within its or their area or, with the approval of the Registrar, outside its or their area- section 36(3)

Individuals, organisations or traditional clans cannot make any claims independent of Aboriginal Land Councils.

The Aboriginal Land Rights Act 1983 (NSW) allows for LALCs to make claims over the following types of ‘claimable Crown lands’:

• Crown land able to be lawfully sold or leased
• Crown land not lawfully used or occupied,
• Crown land not needed or likely to be needed as residential land,
• Crown land not needed, nor likely to be needed, for an essential public purpose,
• The Crown land must not be subject of an application for a determination of native title or have been the subject of a successful application for native title

If a native title dispute goes to trial following failed mediation, it can be a long and complex process, involving difficult legal issues and extensive historical, archaeological and anthropological research. Claimants must establish a ‘continuing connection’ to the land and the ongoing survival of a decision-making group which operates under rules which are traced back to pre-colonisation.

 

Under Aboriginal Land Rights Act 1983 (NSW):