M4 - Learner Manual

In 1835, John Batman a non-Aboriginal and Torres Strait Islander man signed two ‘treaties’ with the local Aboriginal elders of the Kulin tribe to ‘purchase’ 240,000 hectares of land, located between what is now known as Melbourne and Bellarine Peninsula. The land, which was significant farming terrain for Batman, was almost all of the Kulin’s ancestral land. Batman’s ‘purchase’ of the land was based on European concepts of land ownership and legal contracts, concepts that were foreign to the Aboriginal Kulin people. The Kulin people, similar to other Aboriginal tribes of the time, did not view land in terms of possession but rather land for them was about belonging.[1]

In response to this treaty and similar arrangements between settlers and Aboriginal people, the New South Wales Governor of the time, Richard Bourke, immediately issued a proclamation in August 1835 declaring that the British Crown, not Aboriginal people, owned the land of Australia and thus that only it could sell or distribute land. An additional proclamation was issued stating that people who attempted to possess land without the authority of the Government would be considered trespassers and thereby liable to punishment. In effect, the proclamations overrode the legitimacy of the treaty between Batman and the Kulin people and reinforced the notion that Australian land belonged to no one before British taking possession of it.[2]

A report by the House of Commons in 1837 recognised that Aboriginal people had rights in the land.[3] However “despite all the evidence to the contrary, British law continued to insist that Australia was uninhabited, that no-one was in possession [prior to colonisation].”[4] This was referred to as the legal doctrine of terra nullius. The law that was applied across Australia continued to reflect Bourke’s proclamation until the landmark decision in the Mabo v The State of Queensland [1992] HCA 23 (Mabo) case.[5]

In 1861, the New South Wales Government enacted the Crown Lands Acts which introduced free selection of Crown land. It allowed people to select up to 320 acres of land before it was surveyed on the condition that they would pay a deposit of one-quarter of the price and would live on the land for three years.[6] It was intended to increase farming and agriculture of the land. The Acts also limited the use of Crown lands by Aboriginal people.

In the second half of the 19th Century, Torres Strait Islanders also lost their independence when the Queensland Government annexed the Torres Strait Islands.

In 1966 stockmen and women at Wave Hill led by Vincent Lingiari, a Gurindji man, walked-off in protest against intolerable working conditions and inadequate wages. They established a camp at Watti Creek and demanded the return of some of their traditional lands.

The Gurindji strike was not the first or the only demand by Aboriginal people for the return of their lands - but it was the first one to attract wide public support within Australia for Land Rights. It led to the 1972 Labor Party’s policy on Land Rights and the enactment of the Aboriginal Land Rights Act 1976 (NT) – the first statutory recognition of the inalienable right Aboriginal and Torres Strait Islander people have to this land.

In 1972 Labor leader Gough Whitlam said: “We will legislate to give Aboriginal Land Rights – because all of us as Australians are diminished while the Aborigines are denied their rightful place in this nation”. In February 1973, Whitlam appointed Justice Woodward to report on the appropriate way to recognise Aboriginal Land Rights in the Commonwealth controlled Northern Territory.

In 1974 Woodward presented his final report. The report stated that the aim of land rights was to do a simple justice to the Aboriginal people who had been deprived of their land without their consent and without compensation. He proposed procedures for claiming land and the conditions associated with tenure, in particular it was suggested that Aboriginal land should be granted as inalienable freehold title (could not be sold, mortgaged or disposed of in any way) and that the title should be held communally. [7]

In 1975, Prime Minister Gough Whitlam handed back title of the traditional lands of the Gurindji people.

On the 26 January 1977, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) came into effect. The Act recognised that Aboriginal people had rights to land. As a result, it established a process to enable local Aboriginal Land Councils to lodge a claim on behalf of the Aboriginal community to reclaim their land.

In 1983, New South Wales enacted their version of the Aboriginal Land Rights Act.  While legislation provided some rights to Aboriginal people, the legal myth that Australia was ‘terra nullius’ continued. Aboriginal and Torres Strait Islander people continued to fight for recognition of their traditional rights, and in 1992 a major land rights victory was won through the courts.

In 1992, the High Court of Australia ruled in the Mabo (No 2) case that native title exists over particular kinds of land – unalienated Crown land, national parks and reserves – and that Australia was never ‘terra nullius’. This single ruling overturned a legal and historical lie that had stood for more than two centuries. The case recognised that since colonization Aboriginal people had been dispossessed of their rightful land.

In 1993, in response to the Mabo decision the Native Title Act 1993 (Cth) was enacted. The Native Title Act establishes the procedure for making native title claims. It has been extensively amended in 1998, 2007, and again in 2009.[8]  The preamble to the Native Title Act acknowledges the following:

“Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement. They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands. As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.”[9]

In 1996, the High Court of Australia decided the matter of Wik Peoples v Queensland [1996] HCA 40 [10]. The Wik people of Western Cape York Peninsula in Far North Queensland were one of the first groups to launch legal action for recognition of their rights after the decision in Mabo (No 2). The HC, by a 4:3 majority, held that the grant of pastoral leases under the QLD Land Acts did not necessarily extinguish native title. This in effect confirmed that native title might co-exist with another interest in the same land to the extent that the two were legally consistent with each other

The 1998 amendments to the Native Title Act 1993 (Cth) included among others, the following changes:

·       Native Title claimants had to satisfy a stringent and retrospective registration test before “right to negotiate” (RTN) on mining proposals or compulsory acquisitions.

·       States territories may replace the RTN with weaker processes.

·       Native Title claimants have reduced procedural rights concerning mineral exploitation

·       Reduced say of Native Title holders in government activities

·       Easier for state governments to compulsorily acquire co-existing native title rights

On 11 August 1998 the UN Committee on the Elimination of Racial Discrimination (CERD) concluded that whilst the Native Title Act 1993 (Cth) was delicately balanced between the rights of Indigenous and non-Indigenous title holders, the amended Act appeared to create legal certainty for Governments and third parties at the expense of Indigenous title.

In 2002, the matter of Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 went before the High Court of Australia. This provided for a fundamental examination of what is needed to prove traditional connection to country, sufficient to achieve a positive determination of native title under 223(1) Native Title Act 1993 (Cth). The bar is obviously set very high, but Gleeson CJ, Gummow and Hayne JJ said: “demonstrating some change to, or adaptation of, traditional law or custom or some interruption of enjoyment or exercise of native title rights or interest in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim…”