M4 - Learner Manual
3. Social Justice Policies and Equity
3.5. Sovereignty, Land Rights & Native Title
Native title is the recognition in Australian law that some Indigenous people continue to hold rights to their land and waters, which come from their traditional laws and customs. The following conditions must be met:
the rights and interests are possessed under the traditional laws currently acknowledged and the traditional customs currently observed by the relevant Indigenous people
those Indigenous people have a ‘connection’ with the area in question by those traditional laws and customs
the rights and interests are recognised by the common law of Australia.
Native title has its source in laws and customs which have been acknowledged and observed in a substantially uninterrupted way from the time of settlement until now.
The problem here is that colonial and successive government policies meant that Aboriginal peoples were systematically removed from their country. Other issues include; Native title exists alongside and subject to the rights of other people in the same area, it can only be claimed on certain areas of land or water, for example on vacant or unallocated Crown land but not on residential freehold land or land where public works exist, like roads, schools or hospitals.
Native Title can be extinguished (refused recognition) because of things the government has done, or allowed others to do, over a particular area that are inconsistent with native title. Native Title is not granted by governments but by the Federal Court under the Native Title Act.
Land rights claims are different to Native Title. These claims are made against land by Aboriginal communities under varying Australian laws and legislation which aim is to compensate Aboriginal people for the past dispossession, dislocation and removal of land.
If the Land rights claim is successful, the Aboriginal community is usually given the land via a grant of freehold title or a perpetual lease which is then passed down to the future generations.
Sovereignty is a broader concept than land rights. Land rights are rights awarded by a sovereign entity to some of its members. In other words, you can obtain land rights, but the ultimate authority rests in the hands of the sovereign power. What you can do with that land is limited by the decisions of the sovereign power.
Native Title is just one form of title over the land, it does not give ultimate authority and you are not free to determine your own laws. The way that the land is used, also has restrictions.
Aboriginal peoples’ laws, customs and ways of knowing and being in the world are intimately connected to the land and waters. Connection to land is therefore essential to the continued cultural survival of Indigenous Australians as well as their economic and social development. As First Peoples, these rights are centred around self-determination and sovereignty rights to land.
When the Mabo judgement was to be handed down, the media ran damaging campaigns outlining how Indigenous people were about to ‘steal’ peoples’ backyards. This in turn saw conservative governments weaken Native Title and enact policies that maintained restrictions to Native Title.
Self-determination is not the same as sovereignty. Sometimes, it is used as an alternative term, while other times it is used to describe a form of 'limited sovereignty' under the sovereign power of someone else. In international law, sovereignty has a more clearly defined meaning than self-determination.
Sovereignty:
Sovereignty is the supreme, absolute and uncontrollable power by which an independent state is governed and from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign interference.
Sovereignty is the power of a state to do everything necessary to govern itself, such as making, executing and applying laws; imposing and collecting taxes, making war and peace, and forming treaties or engaging in commerce with foreign nations.