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10 years of native title
information kit
Monday 3 June 2002 is the tenth anniversary of the High Court of Australia’s
decision in Mabo (No2) v Queensland which declared that:
the common law of this country recognises a form of native title which, in the
cases where it has not been extinguished, reflects the entitlement of the
indigenous inhabitants, in accordance with their laws or customs, to their
traditional lands.
This was the first time that an Australian court had recognised the entitlements of Indigenous
people to their traditional lands under their traditional laws.
To mark the anniversary, the National Native Title Tribunal has prepared this media kit. It
contains the following information:
•
Determinations of native title in Australia 1992-2002
•
Some key statements from the Mabo (No 2) judgment
•
Some key developments in native title case law since Mabo (No 2)
•
Key dates in the development of native title
•
Quotes from stakeholders about 10 years of native title
•
Some native title statistics
Contacts:
Elisabeth Mealey, Media Manager
Tel: 02-9235 6324
Mob: 0417-418474
Fax: 02-9223 7039
Email: elisabethm@nntt.gov.au
Nicolette Kormendy, Media Adviser
Tel: 08-9268 7315
Mob: 0417-944809
Fax: 08-9325 9031
Email: nicolettek@nntt.gov.au
These key facts were compiled by the Media Unit of the National Native Title Tribunal in May 2002. Note that
quotes from recent interviews undertaken by Tribunal staff have been included with permission, and may not
be used except by contacting the Tribunal’s Media Unit.
Some native title statistics
as at 13 May 2002
Native title determinations
Total number of determinations of native title (also see map of determinations in this kit)
By agreement*
24
Non-claimant unopposed**
7
By litigation
9
Total number of determinations – claimant & non-claimant
*:
40
Commonly termed ‘consent determinations’
**: For the definition of unopposed see section 86G of the Native Title Act. These are all non-claimant local Aboriginal land
council applications in NSW.
Total number of determinations that found native title continues to exist
Number of active claimant native title applications
Percentage of these in mediation
30
589
48.5%
Agreements
Number of agreements involving Tribunal mediation
Native Title Agreement or agreement leading toward same
Future Act Agreement (mining)
Total
399
59
Future Act Agreement (other developments, eg pipelines)
7
Other Agreements – resolving an application without a determination of native title
eg a grant of freehold land under a State land rights scheme.
Total
76
541
For further information tel: 02 9235 6324 or 08 9268 7315
1
Some native title statistics
as at 13 May 2002
Indigenous land use agreements (ILUAs)
ILUAs are voluntary agreements primarily about the use and management of land, made between a
native title group and other people. The Tribunal can assist at any point during the negotiations of an
ILUA and maintains a Register of ILUAs. Provisions for ILUAs were created as a result of the 1998
amendments to the Native Title Act.
Registered with the Tribunal
NSW
NT
QLD
SA
VIC
WA
TOTAL
4
6
26
1
6
1
44
Registration decisions
Number of registration test decisions made:
To gain the ‘right to negotiate’, each claimant native title application must pass the
registration test conditions set out in the Native Title Act. The test ensures that the
application has a sound basis and has been properly prepared. The registration test
was introduced by the 1998 amendments to the Act. Most of the claimant
applications made since then have satisfied all of the registration test conditions.
710
Future acts
Total number of active future act applications*
NSW
NT
QLD
VIC
WA
TOTAL
Future Act Mediations
2
0
5
3
39
49
Expedited Procedure** Objections
0
108
0
0
479
587
Future Act Determinations
0
0
13
1
2
16
*:
**:
These are in relation to proposed developments, primarily mining, on land where native title may exist.
The expedited procedure provisions of the Native Title Act allow a fast-tracking process for proposed
activities that have minimal impact on native title. People may object on the grounds that there may be
more than a minimal impact.
For further information tel: 02 9235 6324 or 08 9268 7315
2
Some native title statistics
as at 13 May 2002
For further information tel: 02 9235 6324 or 08 9268 7315
3
Some key statements from
the Mabo (No 2) judgment
The High Court which delivered the judgment comprised:
Chief Justice Anthony Mason, Justice Gerard Brennan, Justice William Deane, Justice
John Toohey, Justice Mary Gaudron, Justice Michael McHugh (the majority who decided that
native title is recognised at common law), Justice Daryl Dawson, (dissenting).
The justices’ reasons for decision in Mabo v Queensland (No 2) are reported in volume 175 of
the Commonwealth Law Reports (CLR) and volume 107 of the Australian Law Reports (ALR).
Chief Justice Mason and Justice McHugh (speaking for the six judges of the majority):
[T]he common law of this country recognises a form of native title which, in the cases where it
has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance
with their laws or customs, to their traditional lands ... . [(1992) 175 CLR at 15; 107 ALR 1 at 7.]
Justice Brennan (with whom Chief Justice Mason and Justice McHugh agreed):
The need for recognition by the Crown of native title
The common law of this country would perpetuate injustice if it were to continue to embrace
the enlarged notion of terra nullius and to persist in characterizing the indigenous inhabitants
of the Australian colonies as people too low in the scale of social organization to be
acknowledged as possessing rights and interests in land. [(1992) 175 CLR 1 at 58; 107 ALR 1
at 41]
The nature and incidents of native title
Native title has its origin in and is given its content by the traditional laws acknowledged by and
the traditional customs observed by the indigenous inhabitants of a territory. The nature and
incidents of native title must be ascertained as a matter of fact by reference to those laws and
customs. [(1992) 175 CLR 1 at 58; 107 ALR 1 at 42]
The extinguishing of native title
To treat the dispossession of Australian Aborigines as the working out of the Crown’s
acquisition of ownership of all land on first settlement is contrary to history. Aborigines were
dispossessed of their land parcel by parcel, to make way for expanding colonial settlement.
[(1992) 175 CLR at 68-9; 107 ALR 1 at 50]
For further information tel: 02 9235 6324 or 08 9268 7315
1
Some key statements...
Justices Deane and Gaudron:
The Aborigines and the land in 1788
Under the laws or customs of the relevant locality, particular tribes or clans were, either
on their own or with others, custodians of the areas of land from which they derived
their sustenance and from which they often took their tribal names. [(1992) 175 CLR 1
at 99; 107 ALR 1 at 75]
Should the propositions supported by the Australian cases and past practice be accepted?
…the circumstances of the present case make it unique. As has been seen, the two
propositions in question provided the legal basis for the dispossession of the Aboriginal
peoples of most of their traditional lands. The acts and events by which that
dispossession in legal theory was carried into practical effect constitute the darkest
aspect of the history of this nation. The nation as a whole must remain diminished
unless and until there is an acknowledgment of, and retreat from, those past injustices.
In these circumstances, the Court is under a clear duty to re-examine the two
propositions. For the reasons which we have explained, that re-examination compels
their rejection. [(1992) 175 CLR 1 at 109; 107 ALR 1 at 82]
Justice Toohey: on whether the content of native title, which he called ‘traditional title’, may
change over time.
…modification of traditional society in itself does not mean traditional title no longer
exists. Traditional title arises from the fact of occupation, not the occupation of a
particular kind of society or way of life. So long as occupation by a traditional society
is established now and at the time of annexation, traditional rights exist. An indigenous
society cannot, as it were, surrender its rights by modifying its way of life. [(1992) 175
CLR 1 at 192; 107 ALR 1 at 150]
For further information tel: 02 9235 6324 or 08 9268 7315
2
Key dates in the development
of native title*
1981
1988
At a land rights conference in Townsville, Mr Eddie
Koiko Mabo from Murray Island in the far east of
the Torres Strait, met with lawyers to discuss the
possibilities of legal action to establish that the
Meriam People had legally recognised rights in the
Murray Islands (Mer, Dauar and Waier).
8 December: The High Court decided, by a majority
of 4:3, that the Queensland Coast Islands Declaratory
Act 1985 was inconsistent with the Commonwealth’s
Racial Discrimination Act 1975 (Mabo v Queensland
(No 1) (1988) 166 CLR 186, 83 ALR 14).
1992
1982
Eddie Mabo and two other Murray Islanders–
David Passi and James Rice—instituted
proceedings against the State of Queensland in the
High Court of Australia.
1985
The Queensland Parliament passed legislation (the
Queensland Coast Islands Declaratory Act 1985) that
purported to extinguish any rights and interests
that the Meriam (or Murray Islanders) may have
had before its enactment.
1986
27 February: Chief Justice of the High Court, Sir
Harry Gibbs, remitted the Mabo case to the
Supreme Court of the State of Queensland for a
hearing of the evidence so that issues of fact raised
in the case could be determined.
1986-1989
October 1986-September 1989: The hearing of
evidence in the Supreme Court continued, partly in
Brisbane and partly on Mer Island and Thursday
Island in the Torres Strait.
21 January: Eddie Mabo died in Brisbane while
being treated for cancer.
3 June: The High Court handed down its historic
decision in Mabo and Others v the State of Queensland
(No 2) (1992) 175 CLR 1, 107 ALR 1). It found by a
majority of 6:1 that: (subject to certain exceptions)
‘the Meriam People are entitled as against the whole
world to possession, occupation, use and enjoyment
of the lands in the Murray Islands’.
The decision overturned the doctrine that Australia
was terra nullius (no man’s land) when the British
Crown asserted its sovereignty.
1993
21 December: The Native Title Bill was passed by the
Senate.
1994
1 January: Most of the Commonwealth Native Title
Act 1993 commenced operation.
The National Native Title Tribunal was established.
1998
30 September: The amended Native Title Act
commenced, except the provisions relating to
representative Aboriginal/Torres Strait Islander
bodies, contained in Schedule 3.
* Case law developments are listed in a separate document
For further information tel: 02 9235 6324 or 08 9268 7315
Quotes from stakeholders
about 10 years of native title
These quotes are taken from recent interviews undertaken by Tribunal staff with a range of people
around Australia who have had first-hand experience of the native title process.
[Media organisations note: Please contact the Tribunal’s media unit before using quotes from people other than
Tribunal representatives. Phone: 02-9235 6324 or 08-92687315.]
May 2002
Graeme Neate, President of the National
Native Title Tribunal
The environment for agreement-making about
Indigenous people’s interests in land is far more
promising than it was when the High Court
handed down its decision in the Mabo case and
the Native Title Act commenced to operate.
The first decade has provided occasions for the
first agreements to be reached about many issues,
and in an uncertain and developing area of law
and practice, the first agreements can be the
hardest to reach. But now as the ground rules are
settled and people are more used to how to go
about negotiating agreements, agreements should
be more readily reached in shorter periods of time.
Much of the fear and apprehension that was
evident in the faces and the language of many
non-indigenous people in the early days of native
title has gone as people realise that the recognition
of native title occurs alongside the ongoing
recognition of their rights and interests.
Bardy McFarlane, Member of the National
Native Title Tribunal
Early expectations have been brought under
control. There are now more realistic expectations.
People are more experienced in the process and
have a feel for what’s achievable and what’s not.
People know where the pitfalls are.
If you’re sitting down at the table you’re moving
towards the reconciliation process. At that level,
native title has got people talking. It has made a
lot more public the issues and concerns of the
Aboriginal people.
For further information tel: 02 9235 6324 or 08 9268 7315
Bill O’Donnell, Amalgamated Prospectors and
Leaseholders Association of WA
In the position I sit I see (a growing acceptance of
native title) on the ground. I take prospectors out to
surveys and I see them realising that traditional
owners speak for the country and have knowledge of
the country. The perceptions of the prospectors are
altered after these visits.
It’s very difficult to imagine miners and prospectors
having tenements granted without them
considering native title matters. It’s a pre-condition
at least. Most people are aware now from objections
that have taken place that you won’t get a tenement
granted without progressing through a native title
regime of some kind. They know it has to addressed.
When it all boils down at the end of the day it
usually works out and there’s recognition that both
parties need to co-exist. Generally there’s not a
problem. A prospector at first can find the process
daunting. Not until the end when you go out on
country and realise it’s not too difficult.
Yvonne Stewart, Arakwal woman, Byron Bay
NSW
No-one cared about the traditional owners of Byron
before native title. We weren’t even invited to be
involved in the land management decisions before.
It took native title to open their eyes because Byron
Bay has never really seen a big Aboriginal
community before. They didn’t have to deal with it
before.
Our mob is walking around much prouder with
their heads up. People smile much more now.
There’s worth put back into our people. There was
never any respect before.
Mabo made us believe it was possible. That gave us
the right to speak. There was no other way before
that.
1
Quotes from stakeholders...
Tim Shanahan, CEO, Chamber of Minerals
and Energy (WA)
Native title generally and its public perception of
it has matured since the time of the original
decision. Mining companies in the early days
weren’t as sanguine or accepting of native title.
These days it’s seen as part of the normal business
of mining. The mining industry has been on a
journey with native title and attitudes have
changed over that period.
The mining industry has been more exposed to
native title than the general population because of
where it does its business. Mining companies have
had to become educated to the issues native title
throws up. They have grown in their opinion of
the issues in terms of understanding the legalities.
They have to understand the philosophy of native
title and by and large the mining companies are
more across the issues than the person on the
street.
Colin Saltmere, Traditional Owner, Indjilandji
People, Camooweal, Qld
Without native title, the whole issue of our
existence is still in question. Native title has
brought: knowledge, patience, deliverance.
It is depressing to a lot of people – to have to
prove themselves and dig up the past.
One man’s optimism, is another man’s future.
Everyone involved in native title is basically
optimistic. You’ve got to be open-minded about
this process. Having the ability to adopt a process
that ties in with your own – forms a better
relationship but doesn’t take away your own belief
system and culture.
Native title is a touchy issue with other Aboriginal
people. Even in our own communities, people are
very stand-offish and protective regarding native
title if they’re not involved in it. They don’t believe
this thing is actually working. When they see it
working, they want to be involved.
At any negotiating table, you don’t talk about
money. You talk about the country. There’s a big
perception out there that native title means
money. It’s really about getting those rights sorted
out and getting people back on board. It involves
getting people brought up in a process that is part
of today’s society -- keeping intact your tradition
and cultural beliefs but working in an
environment that has never accepted that and
making it work in that environment.
David Griffiths, General Manager Corporate
and Community Affairs, WMC Resources
Native title is a fact of life and this should not be
accepted reluctantly, it should be celebrated.
Unfortunately the process and its complexity
prevents it from being celebrated. It has to be
endured.
The tilting at windmills and a lot of rhetoric
opposing legislation has dissipated – people now
accept native title for what it is. There are still
groups that don’t like it but they recognise that
native title is here to stay. I think opposition has
dissipated completely.
However, the opposition to the process that leads
to the recognition of native title is still very strong.
The concept of native title is very well entrenched.
For those who have to work in the area, their
awareness has increased. Understanding is quite
narrow and confined to a very small group of
people who have to know about it.
Dr Roney Wasaga, Elder of the Kaurareg
People, Queensland
That sitting together is very cultural. Kaurareg
People did that in the before days – sitting
together face to face to talk about what they’re
doing right or wrong. It’s a part of our culture –
that sitting together was welcomed by the elders.
That part of native title was a winner and really
struck their hearts.
For further information tel: 02 9235 6324 or 08 9268 7315
2
Quotes from stakeholders...
Frank Badman, Consultant to the South
Australian Farmers Federation
We’ve established great relationships with groups
we’ve been working with so far. We’re working
towards the same goal and there’s a great amount
of goodwill and trust.
We’re hoping to develop a pilot ILUA (Indigenous
Land Use Agreement) on a pastoral lease. We’re
developing relationships and a growing number
of people are coming around to it and starting to
talk about it. We don’t get as much opposition
now as we did when the Native Title Act came in.
People are realising that the Act is here to stay and
we have to live with it.
One of the things that pastoralists have always
been worried about – they don’t want to be
negotiating with the wrong people so if we’re told
who the right people are we’re happy to go along
with that fact.
David Ross, Director, Central Land Council,
Alice Springs
Who knows – where would we be if we stuck to
the common law and just lined up? It’s a chicken
and egg thing. After 10 years there’s a hell of a lot
of disappointment. Maybe we need more than 10
years after 200 years of getting done over.
John Clapin, Chairman, Native Title
Committee, Pastoralists and Graziers
Association of WA
There’s a genuine realisation now that native title
is here to stay. At the beginning people thought it
would go away. They initially thought the High
Court would overturn the decision.
When a claim is lodged, the pastoralists know very
few of the claimants. The whole process, which
the Tribunal would like to see and we (the PGA)
feel there is a need for, is mediated outcomes. It’s
very difficult when people aren’t known to each
other. When there are overlapping claims our
people say if the claimants can’t work out who the
rightful owners are, we can’t know who the
rightful owners are.
Pastoralists have always said that if we could talk
to the genuine claimants at the beginning
without the legalese, we could find out what their
aspirations are and progress from there.
Because of the geographical spread, a lot of
pastoralists and farmers do not become involved
and put native title into the back of their minds
unless it affects them. Therefore we are always
getting new groups of people who know very little
about native title and the process. They’re too
busy to worry about it unless they have to.
Leeanne Williams, pastoralist, Clare, South
Australia (discussing a native title claim
over her former property)
I felt very sick, very angry and very scared, not
knowing what might happen. I rang the Farmers
Federation. Through the Farmers Federation we
started negotiating. We started to have meetings
with claimants which were heavy to start with but
once we learnt what they wanted we went into
mediation leading towards an agreement. We felt
fairly positive – to us it felt they didn’t want any
more rights than what they already had.
You really have to talk with the claimants. You
have to get together and talk or else it’ll just go
around and around. With every meeting it got
better. At the first meeting we seemed like
enemies – they were on one side of the room, we
were on the other, eyeballing each other.
We ended up selling the property (for another
reason) but had we stayed on the property we
would have reached an amicable agreement. If we
were in that situation again we’d feel differently
about it. All that you heard was that freehold land
extinguished native title but no one knew
whether pastoral land extinguished native title.
For further information tel: 02 9235 6324 or 08 9268 7315
3
Quotes from stakeholders...
Mrs Lorna Kelly, Arakwal Elder, Byron Bay
NSW (discussing the Arakwal ILUA that saw
freehold title handed back to Arakwal
People)
I went through a lot of walking and talking and
meeting a lot of people but it was worth it because
we finally got the land. I’m glad that that part of it’s
over – it was getting tiring for me after all those
years. I thought it was worth it because the
Tribunal and Parks (NSW National Parks and
Wildlife Service) did so much for us. I couldn’t say
anything against it – we had so much support for
it.
We did it for our own people and there are so many
Arakwal people -- and they’re pretty grateful.
If I met Eddie Mabo now I would talk to him for so
long. I’d ask him about his land and how he
wanted that land. I’d ask him about that and his
family. I used to read about him and it was so sad
he passed away before he got that land. I would
like to meet him and one day maybe I will – I’m
sure I will.
Pedro Stephen, Torres Shire Council mayor
The Kaurareg claim highlighted a lot of the real
issues of Indigenous people and government
bureaucracy. Therefore I took the opportunity at
the signing of the agreement to say sorry on behalf
of the local government to the Kaurareg people.
The local government was used as an instrument to
forcibly remove the Kaurareg from the land. If we
were not awakened to history, a lot of the healing
would not take place.
The process of the ILUA gave people the
opportunity to share their frustration and share
their hurts. So many times in the Torres Strait we
talk about isolation and how it’s easy for native
title because we never left our place but it’s a
different scenario for the Kaurareg people.
One of the main things is that people shouldn’t
fear to come to the table to talk. My advice to other
councils is that the sooner they have some form of
ILUA or agreement in place the better for the
development of the community.
Professor Marcia Langton, School of
Anthropology, Geography and Environmental
Studies, University of Melbourne
The most interesting development regarding
sustainable
development
for
Aboriginal
communities is the outcomes achieved from the
right to negotiate.
Because companies want sustainability and certainty
themselves, the negotiations around mining
agreements have concentrated on obtaining
outcomes for Aboriginal communities including for
native title holders.
Instead of simply agreements having financial
distributions, you have partnership arrangements in
these new agreements, including for example
employment, scholarships, training, development of
local enterprises, recognition of native title and
native title-holding groups as more than
stakeholders.
What’s become clear is that whereas litigation is
costly and time consuming, agreement-making costs
less and is more timely.
Mediation and negotiation leads to tangible
outcomes rather more quickly than litigation.
Bruce Harvey, Chief Adviser Aboriginal and
Community Relations, Rio Tinto Limited
Proactive engagement and innovative agreement
making has the capacity to deliver timely, cost
effective outcomes. Commercial agreements
provide opportunities for local and regional
economic development in ways that native title
determinations on their own cannot.
Commercial agreements and their implementation
are resource intensive. Implementation must be
factored into the agreement process and allocation
of resources for agreements to be effective and
durable.
The native title process remains unwieldy in many
areas, particularly future act matters, when there is
a lack of cooperation between parties.
Unfortunately, the resulting burden of delay placed
For further information tel: 02 9235 6324 or 08 9268 7315
4
Quotes from stakeholders...
on the mineral industry results in lost
opportunities for all parties. At a minimum, the
benefits can include outcomes based on certainty
– essential for project investment.
Attitudes have changed to accept that the native
title process is part of the way of doing business –
this is partly driven by the inclusion of native title
provisions in legislation involving any future act
provision of legislation.
Terry Waia, Chairperson, Torres Strait
Regional Authority
I think people feel the ownership and are now
talking about having recognition from the
government. Knowing that information –
knowing that our native title rights have been
legally recognised, is a good feeling. When people
saw the official documents signed off and that our
native title rights were legally recognised, it gave
people a good feeling.
To the old people it’s like a dream come true.
When we’re talking about our land we’re also
talking about our sea but we know it is a different
process. To us Torres Strait Islanders it’s a part of
our land and as the saying goes – the sea is part of
our garden. Our knowledge of ownership also
extends to the seabed, reefs and waters.
Native title brings back the spirit of ownership and
pride. Now we’re talking about tourism,
autonomy, managing our resources.
The feeling of ownership has given us
empowerment over things that belong to us.
There’s more information about the trueness,
about what is owned by Torres Strait Islanders. At
the same time we must educate our youth. .
Tony Hespe, Western Metals Copper,
Queensland
Many native title groups are, understandably, not
familiar with processes of commercial negotiation
and have limited resources to engage in
negotiation. Companies recognise that negotiation
will not be as efficient as with their usual
commercial partners.
Any contact or negotiation with native title groups
is a relationship building exercise as well as
directed at a particular outcome. Both parties have
a lot to learn about each other. The negotiation
period is an opportunity to build trust between the
parties which can be called on in future
negotiation.
Managing the effect of the native title negotiation
process on exploration and mining is very difficult
and time consuming because of the early stage of
development of the process. The success rate in
making agreements related to mining and
exploration has not been good enough.
Governments have a part to play in establishing
these processes as Queensland has done in
supporting the KERG ILUA (Kalkadoon
Exploration Reference Group Indigenous Land Use
Agreement).
Once the processes and case law has been
established the mining industry will adapt to
implementing native title law just as it has done
with the changes to environmental law
For further information tel: 02 9235 6324 or 08 9268 7315
5
Determinations of native title in
Australia 1992-2002
(NB: only ‘approved determinations of native title’, as
defined in the Native Title Act 1993 are included here)
Queensland
Meriam People*
3 June 1992
In the 1992 Mabo decision, the High Court of
Australia recognised that the Meriam people had
native title over most of their traditional lands on Mer
(one of the Murray Islands) in the Torres Strait. This
was the landmark decision which paved the way for
Australia’s Indigenous peoples to have their native
title rights recognised under Australian law.
Hopevale
8 December 1997
The Hopevale consent determination was the first
determination of native title in Queensland since the
original Mabo decision, and the second native title
matter determined in Australia through the National
Native Title Tribunal's mediation processes. Located
approximately 200 kilometres north of Cairns near
Cooktown, the 110,000 hectare area was held by the
Hopevale Aboriginal Council as a Deed of Grant in
Trust for the benefit of Aboriginal people.
Western (Sunset) Yalanji
28 September 1998
The Western (Sunset) Yalanji consent determination
was Australia's third agreement to formally recognise
native title — and the first over a pastoral property.
The coexistence agreement, reached by pastoralists
and local traditional owners in north Queensland,
was an historic step forward in the development of
native title in Australia. The agreement included a
legally binding land use and access agreement which
could serve as a model for other pastoralists wanting
to negotiate the resolution of native title applications.
Mualgal People (Moa Island) and
Saibai Island Community
12 February 1999
Moa and Saibai were the first and second
determinations of native title in the Torres Strait
under the Native Title Act. The consent
determinations were the result of nearly two and a
half years of work by the parties within a mediation
framework set up by the National Native Title
Tribunal.
Dauan, Gumulgal Mabuiag, Warraber,
Porumalgal Poruma,
Masig and Damuth peoples
6 July 2000
The consent determinations of six Torres Strait
applications were settled after two years of mediation
by the National Native Title Tribunal. At sittings on
islands in the Torres Strait, the Federal Court formally
recognised the native title rights of the people of
Dauan, Mabuiag, Poruma (Coconut), Warraber,
Masig and Damuth Islands. The Court proceedings
were followed by traditional celebrations.
Wik and Wik-Way Peoples
3 October 2000
The Wik and Wik-Way Peoples’ consent
determination covers approximately 6,000 square
kilometres of Aboriginal held land on the western
Cape York Peninsula. The Wik application, lodged in
1994, achieved national prominence when it was the
subject of an historic High Court decision in 1996
which found that native title may coexist with a
pastoral lease. The High Court's Wik decision found
that the grant of a non-exclusive pastoral lease did not
necessarily extinguish native title and that native title
rights could co-exist with the rights of a lessee. The
decision also said that where there is a conflict of
rights, the rights of the pastoralist prevail.
For further information tel: 02 9235 6324 or 08 9268 7315
1
Determinations of native title...
Kaurareg People
23 May 2001
New South Wales
Three indigenous land use agreements, which set out
how the consent determinations would work on the
ground, made the five Kaurareg native title
determinations possible. Seen as a starting point for a
new relationship between the Kaurareg People and
the wider community, the determinations cover some
or all of the inner Torres Strait islands of Ngurapai,
Muralag, Zuna , Tarilag, Yeta, Damaralag, and Mipa.
Dunghutti People
7 April 1997
Meriam People (Waiar & Dauar Islands)
14 June 2001
Although Waiar and Dauar were included in the
original Mabo application, there were uncertainties
about the effect on native title of sardine factory
leases in the 1930s. The High Court did not decide
that issue. The application was re-lodged under the
Native Title Act in 1998 and the consent
determination closed a chapter on native title for the
Murray Islands in the Torres Strait.
Bar-Barrum People
28 June 2001
This was the biggest consent determination of native
title reserves and unallocated State land in mainland
Queensland. It recognised the Bar-Barrum People's
native title to an area of approximately 357 square
kilometres to the west and south-west of Herberton,
far north Queensland. The determination is
particularly significant as it was the first in a regional
rural community in mainland Queensland with such
a broad range of non-indigenous interests.
The Dunghutti People have a place in Australian
history as the first determined holders of native title
on the Australian mainland. Formal recognition of
the Dunghutti as the native title holders of land at
Crescent Head near Kempsey was given following the
consent of all parties, including the State of New
South Wales, 14 Crescent Head residents and the New
South Wales Aboriginal Land Council. Later, the State
moved to acquire the native title rights, as agreed by
the claimants.
Yorta Yorta*
(See Victoria section below)
Byron Bay Bundjalung People #2
(Arakwal)
23 October 2001
This consent determination was one of the
procedural steps involved in implementing the
Bundjalung of Bryon Bay (Arakwal) indigenous land
use agreement (ILUA) which was registered in August
2001. Provisions of the agreement involved the
Arakwal People surrendering native title to some
small parcels of land in exchange for the State of New
South Wales granting freehold title to the Arakwal
Corporation in most of the area surrendered (the rest
being gazetted as a public road). The consent
determination formally acknowledged the surrender
through a determination that native title no longer
existed in those areas. The agreement was the first
registered ILUA in NSW to involve the State
Government, and the first in Australia to facilitate the
creation of a national park (the Arakwal National
Park). The Arakwal People have a significant say in
the management of the National Park.
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2
Determinations of native title...
Victoria
Wandarang (St Vidgeons)*
25 July 2000
Yorta Yorta*
8 February 2001
This Federal Court decided that native title exists on
pastoral lease land and adjoining rivers in the Roper
River region of the Northern Territory. The decision
was the fourth finding of native title in the Northern
Territory, after the Croker Island decision, the
Miriuwung-Gajerrong decision and the Arrernte
decision.
The Yorta Yorta People made a native title application
over 2,000 square kilometres of land in northern
Victoria and southern New South Wales. In February
2001, a full bench of the Federal Court upheld Justice
Olney’s 1998 judgment that ‘the tide of history’ had
washed away any real acknowledgment by the Yorta
Yorta People of their traditional laws and any
observance of their traditional customs. The High
Court has granted the Yorta Yorta People leave to
appeal against that decision. The appeal is listed for
hearing on 23 and 24 May 2002.
Northern Territory
Miriuwung - Gajerrong #1 and Pt
Balangarra (Ward)*
11 May 2000
(See WA section below)
Arrernte (Hayes)*
23 May 2000
The Arrernte application was lodged in 1996 and the
claim covered 166 parcels of land in Alice Springs,
Northern Territory. The case proved difficult not only
because of the number of discrete parcels of land
involved, but also because the boundaries of land had
changed over time. The determination was that native
title existed in some, but not all, of the land claimed
by the applicants, and that the native title rights and
interests were not exclusive.
Croker Island Seas
11 October 2001
The Croker Island case started in 1994 and was the
first determination of native title over areas of sea
beyond the mean high water mark. In July 1998
Justice Olney of the Federal Court found that native
title existed in relation to the sea and sea bed within
the claim area, but there was no evidence that the
applicants enjoyed exclusive possession, occupation,
use and enjoyment of the waters. Justice Olney said a
right of exclusive possession would be inconsistent
with common law rights to fish and navigate through
the area, as well as the right of innocent passage. In
December 1999, a full bench of the Federal Court
affirmed
Justice
Olney’s
findings.
The
Commonwealth Government and the native title
claimants appealed to the High Court but, in October
2001, the High Court reaffirmed the Federal Court’s
earlier recognition of native title at sea while rejecting
the claimants’ argument that they should have
exclusive possession of their traditional sea areas.
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3
Determinations of native title...
Western Australia
Bodney*
13 November 2000
Miriuwung - Gajerrong #1 and Pt
Balangarra (Ward)*
11 May 2000
The Bodney application was a claim to land at the
Perth Airport held in freehold by the
Commonwealth. The arguments were essentially
about the effect of a Crown to Crown grant of
freehold on native title, and whether the Crown had
a general fiduciary duty to Indigenous people when
dealing with land over which they held native title.
The case held that the effect of this Crown to Crown
grant of freehold was to extinguish native title at the
time of the grant.
The Miriuwung and Gajerrong Peoples had their
native title recognised in November 1998. However,
the case went on appeal to the full Federal Court of
Australia and, in May 2000, the Court made a new
native title determination for that area. The full Court
said that native title exists, but only over parts of the
Miriuwung-Gajerrong People's traditional country
(near Kununurra). The nature and type of the native
title rights and interests was more limited than in the
first determination. The native title holders, the State
of Western Australia and other parties have appealed
to the High Court of Australia.
Nharnuwangga Wajarri and Ngarla
People
29 August 2000
The Nharnuwangga Wajarri and Ngarla application
was formed in 1999 from the combination of four
applications lodged with the Tribunal in 1995. It was
an historic breakthrough as it was the first consent
determination to formally recognise native title in
Western Australia, and one of the largest native title
settlements in the nation. The determination became
effective when the indigenous land use agreement in
relation to mining interests was registered in July
2001. It was a particularly significant decision because
of the size of the application— around 50,000 square
kilometres near Meekatharra — and the range of
interests, which included 24 pastoral interests, 28
mining companies, Telstra, the Shire of Meekatharra
and the Western Australian Government. In addition
to the mining ILUA, a comprehensive set of pastoral
agreements was negotiated.
Spinifex People
28 November 2000
The second negotiated settlement of native title in
Western Australia was for a 54,315 square kilometres
native title application in the central desert region by
the Spinifex People. The agreement, which preserves
the Spinifex People's right to negotiate over mining or
exploration on the land, was a positive sign for the
prospects of resolving at least nine desert claims over
Crown land. The agreement between the Spinifex
People and the Western Australian Government was
formalised by the Federal Court in a hearing at
Tjuntjuntjara in the Great Victoria Desert.
Tjurabalan People
20 August 2001
Through a consent determination, the Tjurabalan
People achieved legal recognition of their native title
rights over an area covering approximately 26,000
square kilometres of land and waters in the Tanami
Desert region near Halls Creek. This was only the
third consent determination to occur in Western
Australia. The mediation process had initially been
unsuccessful and litigation appeared to be the only
option. However, the then recently elected State
Government recommended that the parties return to
the negotiating table.
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4
Determinations of native title...
Kiwirrkurra People
19 October 2001
The Kiwirrkurra People of remote Western Australia
gained legal recognition of their native title rights
over approximately 42,900 square kilometres of land
and waters in the Gibson Desert, west of Lake Mackay.
The consent determination was handed down at
Moyen on Kiwirrkurra country and was the fourth
determination of native title for Western Australia.
Leregon/Yawaru People & Rubibi
Community*
7 November 2001
The Yawuru community of Broome which, for the
purpose of this application, was found to include the
Djugan group, gained legal recognition of their native
title rights over ‘Kunin’— a 300 hectare reserve near
Broome and a traditional law ground.
This
determination was the result of litigation and was the
fifth determination of native title in Western
Australia.
Karajarri People
12 February 2002
The Karajarri People gained legal recognition of their
native title rights over a 24,725 square kilometres area
in the remote Kimberley region. The consent
determination covers the majority of the (31,219
square kilometres) combined area claim and includes
Frazier Downs station (which is owned by the
Aboriginal community), reserves for Aboriginal
people's use and benefit, and portions of unallocated
Crown land. Decisions on the remainder of the
claimed area have been postponed until the High
Court hands down its decision on the MiriuwungGajerrong case.
Non-claimant
determinations
Darkinjung Local Aboriginal Land Council
11 October 2000, 10 August 2001,
3 May 2002
Deniliquin Local Aboriginal Land Council
23 May 2001
Metropolitan Local Aboriginal Land Council
31 March 1998, 23 May 2001 and
12 April 2002 x 2
These seven determinations that native title does not
exist were 'unopposed'. They are procedural
determinations to facilitate NSW Local Aboriginal
Land Councils in dealing with land they hold. Under
s. 40AA of the NSW Aboriginal Land Rights Act 1983,
in certain situations, a land council in NSW must
obtain a determination of native title before leasing
or selling land it holds in freehold. These
determinations resulted from the lodgement and
notification of 'Non-claimant Determination
Applications' by the relevant land councils, no
claimant native title applications being filed in
response and a subsequent determination by the
Federal Court.
* litigated outcome
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5
Some key developments in native
title case law since Mabo (No 2)*
1993
1995
Aboriginal land rights grants
and native title
Validity of the Native Title Act
Pareroultja v Tickner (1993) 42 FCR 32; 117
ALR 206, Full Federal Court, 20 September
1993
The applicants in this case were some of the people
found to be traditional owners of Lake Amadeus in
the Northern Territory under the Aboriginal Land
Rights Act 1976 (Cwlth). They sought orders against
both the Minister of State for Aboriginal and Torres
Strait Islander Affairs and others found to be
traditional owners under that Act opposing a grant of
land under the Land Rights Act, arguing that it would
extinguish or impair their native title.
The Full Bench of the Federal Court was unanimous
in finding (amongst other things) that a grant of
freehold to an Aboriginal Land Trust under the Land
Rights Act is not inconsistent with the continued
existence of native title. Therefore, such a grant does
not extinguish native title over the land in question.
An application to the High Court for a grant of special
leave to appeal against this decision was refused but
five of the seven High Court judges expressly reserved
the Court’s position on the relationship between
native title and statutory titles granted under the Land
Rights Act.
1994
The right to fish
Mason v Tritton (1994) 34 NSWLR 572,
Supreme Court of NSW, Court of Appeal,
30 August 1994
In this case, it was held that a right to fish based upon
traditional laws and customs is a recognisable form of
native title and, if established by evidence, can be
protected under the common law of Australia.
Western Australia v Commonwealth (1995)
183 CLR 373; 128 ALR 1, High Court,
16 March 1995
All seven High Court judges confirmed that native
title could exist in mainland Australia and found that
the Federal Government had power under the
Commonwealth Constitution to enact the Native Title
Act 1993 (Cwlth) (NTA). The Court was also
unanimous in finding that native title could only be
extinguished in a manner that was consistent with the
Racial Discrimination Act 1975 (Cwlth) and the NTA.
Western Australian legislation that extinguished
native title and replaced it with rights of traditional
usage was found to be inconsistent with both Acts. By
operation of s. 109 of the Constitution, the State
legislation was, therefore, inoperative.
1996
Pastoral leases and native title
Wik Peoples v Queensland (1996) 187 CLR 1;
141 ALR 129, High Court, 23 December 1996
This case concerned native title claims by the Wik and
Thayorre Peoples over areas where the Queensland
Government had previously issued pastoral leases.
The native title claimants argued that their rights and
interests were not extinguished by the grant of leases,
but rather coexisted with the interests of the lessees.
By a 4:3 majority, the High Court found that:
• the grant of a pastoral lease does not necessarily
extinguish native title;
• whether or not extinguishment has occurred can
only be determined by measuring the particular
native title rights and interests asserted against the
rights conferred on the grantee of the pastoral
lease;
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1
Case law developments...
• in the event of inconsistency between the
pastoralist’s rights and the native title rights and
interests, the rights of the pastoralist prevail to the
extent of that inconsistency.
The test for extinguishment applied in this case is
called the inconsistency of incidents test.
1998
Public roads and native title
Fourmile v Selpam Pty Ltd (1998) 80 FCR 151;
152 ALR 294, Full Federal Court, 13 February
1998
This was an appeal from a non-claimant
determination which dealt with the effect of the
creation of a road on native title. The Full Federal
Court unanimously held that:
• the constitution of a public road from Crown land
through formal statutory procedures created
enforceable rights of free passage in third parties
(i.e. the public) that are wholly inconsistent with
the continued existence of native title. Therefore,
native title was extinguished over such an area;
• mere reservation of Crown land for use in the
future does not create rights in third parties and,
therefore, does not extinguish native title. The
Crown’s radical title to land is not converted to
full beneficial ownership by a mere act of
reservation.
Ward v State of Western Australia (1998) 159
ALR 483, Federal Court, 24 November 1998
Lee J found that roads set apart, taken or dedicated
under legislative authority were public works which
extinguished native title.
Private freehold extinguishes
native title
Fejo v Northern Territory (1998)195 CLR 96; 156
ALR 721, High Court, 10 September 1998
The Larrakia People claimed to hold native title to
Crown land that had once been granted to a private
individual as an estate in fee simple (i.e. in freehold).
The questions put to the High Court in the appeal
against O’Loughlin J’s decision in Fejo v Northern Territory
(1998) 152 ALR 477 were: had native title been
extinguished by the freehold grant and, if so, could it be
revived when that grant ceased to have effect? All seven
judges held that:
• all native title rights and interests are permanently
extinguished by a grant in fee simple. This is because
the rights given under a freehold grant are wholly
inconsistent with native title rights and interest;
• therefore, native title to the land was not suspended
by the grant. Nor could it revive when the land came
to be held again by the Crown.
1999
Exercise of traditional rights
Wilkes v Johnsen (1999) 21 WAR 269; 151 FLR
89, Supreme Court of Western Australia, Full
Court, 23 June 1999
The defendant appealed against his conviction in the
Court of Petty Sessions for being in possession of
undersized marron contrary to the Fish Resources
Management Act 1994 (WA) (the FRMA). The Magistrate
held that the fact that Mr Wilkes was an Aboriginal
person exercising his native title fishing rights was
irrelevant to the prosecution or defence of the charges
against him. The majority of the Supreme Court found
that:
• the FRMA regulates, rather than extinguishes, the
native title rights to fish;
• certain provisions of FRMA, which prohibited the
taking or possession of protected fish without a
licence or exemption, applied to Aboriginal people;
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• those provisions were inconsistent with s. 211 of the
NTA and, pursuant to s 109 of the Commonwealth
Constitution, were inoperative to that extent.
2
Case law developments...
Yanner v Eaton (1999) 201 CLR 351; 166 ALR
2000
258, High Court, 7 October 1999
Crown to Crown grant of
freehold extinguishes native
title
The appellant, Mr Yanner, was charged under the
Fauna Conservation Act 1974 (Qld) for taking
crocodiles without authority as required under that
Act. In an appeal to the High Court against his
conviction, Mr Yanner argued that the Fauna Act was
inconsistent with s. 211 of the NTA and that, as a
result, s. 109 of the Commonwealth Constitution
rendered the Fauna Act invalid to the extent of that
inconsistency. The State argued that all native title to
fauna had been extinguished by the vesting of all
property to fauna in the Crown under the Fauna Act.
By a 5:2 majority, the High Court held that:
• the Fauna Act regulated the exercise of the
appellant's native title rights and interests but did
not extinguish them;
• (applying s. 211(2) of the NTA and s. 109 of the
Commonwealth Constitution) the Fauna Act did
not prohibit or restrict the appellant, as a native
title holder exercising native title rights, from
hunting or fishing for the crocodiles he took for
the purpose of satisfying personal, domestic or
non-commercial communal needs.
In construing the meaning of the word "property" as
used in the Fauna Act, the majority looked to the
purpose of the legislation as a whole and the
intention of Parliament. In their view, the vesting of
property in the Crown under that Act was for the
purposes of resource management and revenue
collection; it did not confer full beneficial ownership
of fauna on the Crown.
Bodney v Westralia Airports Corporation
(2000) 180 ALR 91: (2000) 109 FCR 178,
Federal Court, 13 November 2000
This was a claim to land at the Perth Airport held in
freehold by the Commonwealth. The arguments were
essentially about the effect of a Crown to Crown grant
of freehold on native title and whether the Crown in
right of the State or the Commonwealth owed a
general fiduciary duty to indigenous people when
dealing with land over which they held native title.
Lehane J found that:
• the grant of a fee simple estate (freehold title),
whether to the Crown, a local authority or a
private individual, extinguishes native title
because such an estate is inconsistent with the
continued enjoyment of rights associated with
native title. The acquisition by the Crown of an
estate in fee simple extinguishes native title for the
same reason;
• in this case, the pleadings did not allege facts
which would establish a fiduciary duty requiring
either the State or the Commonwealth not to
participate as they did in the transactions which
resulted in the Commonwealth obtaining title to
the land in question. However, this was not to say
that there could not be circumstances in which the
Crown owed a fiduciary duty to particular
Indigenous people in relation to the alienation of
land over which they held native title.
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3
Case law developments...
Native title and Western Lands
Division Leases in NSW
Anderson v Wilson & Or (2000) 97 FCR 453;
171 ALR 705, Full Federal Court, 5 April 2000
The holder of a Western Lands Division Lease in New
South Wales argued that the grant of his lease
extinguished all native title to the area. This was put
to the Federal Court before the native title claim over
the area was heard. It was held that:
• the grant of a Western Lands Division Lease is not
necessarily inconsistent with all native title rights
that may exist over the area;
• complex questions of law and fact were involved
in determining the effect of the grant of such a
lease that should not be decided until the facts
about the native title rights and interests existing
at the time of grant were known (adopting the
approach taken in Wik).
An appeal to the High Court against the decision in
this case was heard in September 2001 and judgment
is reserved.
Nature of native title and
manner of extinguishment
Western Australia v Ward (2000) 99 FCR 316;
170 ALR 159, Full Federal Court, 3 March
2000
In Ward v Western Australia (1998) 159 ALR 483, Lee
Lee J in relation to the nature of native title and the
manner in which it may be extinguished, holding
(amongst other things) that:
• native title is made up of a bundle of rights and it
may be partially extinguished;
• the common law only recognises native title rights
and interests that involve physical use and
enjoyment of the land;
• a connection to country can be substantially
maintained without physical presence on the land
eg. by maintaining spiritual practices;
• there is no requirement that an inconsistent grant
be permanent before extinguishment of native
title to the extent of the inconsistency occurs;
• reservations in favour of Aboriginal people found
in WA legislation after 1934 were such that
enclosure (eg. by fencing) or improvement (eg. by
building a stock yard) of areas within the lease
extinguished native title;
• State and Territory legislation extinguished any
native title to minerals or petroleum
• the grant of a mining or general purpose lease
under WA legislation extinguishes native title;
• acts done to establish the Ord River project
extinguished native title;
• native title to take fauna was extinguished in
nature reserves and wildlife sanctuaries created
before the Racial Discrimination Act (1975)
(Cwlth) commenced.
This decision is subject to several appeals to the High
Court, which were heard in March 2001. Judgement is
yet to be delivered.
J found that the Miriuwung and Gajerrong people
held native title to a large part of the claim area. The
Balangarra people were found to have concurrent
native title over part of the determination area. On
appeal, the Full Court unanimously upheld Lee J’s
finding that the claimants held native title to those
parts of the determination area where native title was
not extinguished. However, a 2:1 majority overturned
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4
Case law developments...
2001
Native title offshore
Tide of history washes away
native title
Commonwealth v Yarrmirr (2000) 168 ALR
426, High Court, 11 October 2001
Members of the Yorta Yorta Aboriginal
Community v Victoria (2001) 180 ALR 655;
110 FCR 244, Full Federal Court, 8 February
2001
A majority of the High Court upheld the findings of
Olney J in (1998) 82 FCR 533 (as has the Full Federal
Court in Commonwealth v Yarmirr (2000) 168 ALR
426) and dismissed the appeals, holding that:
This was an appeal from the decision of Olney J that
the Yorta Yorta people’s native title was extinguished
because the tide of history had washed it away. On
the evidence, the claimants had not proven that their
contemporary activities on the land claimed were
based on their traditional laws and customs. Olney J
found that there had been no real acknowledgment
of their traditional laws or observance of their
traditional customs since 1874: see Yorta Yorta v
Victoria (Federal Court No. 6001/95, 18 December
1998, unreported. The appeal grounds were that
Olney J had:
• Non-exclusive native title rights could be
recognised offshore;
• The common law could not recognise exclusive
native title offshore because this would be
inconsistent with both public rights to fish and
navigate found under the common law and the
right of innocent passage under international law.
• erroneously adopted a ‘frozen in time’ approach
to the evidence. This led to a failure to give
sufficient recognition to the capacity of traditional
laws and customs to adapt to changed
circumstances;
• failed to take into account significant and
important evidence, for example, in relation to
current practices and beliefs.
The majority (Branson and Katz JJ) dismissed the
appeal, concluding that it was open to Olney J to find
there was a period of time between 1788 and the date
of the appellant’s claim during which the relevant
community lost its character as a traditional
community. The High Court has granted leave to
appeal against this decision. The appeal will be heard
on 23 and 24 May 2002.
* This list is not comprehensive. It covers a small selection of
significant cases but does not include, for example, all cases
dealing with that point or those dealing with future acts, the
application of the registration test or other aspects of the Native
Title Act 1993 (Cwlth). It is provided as general information
only. The full text of the reasons for decision in each case are
published as indicated in the following law reports: Australian
Law Reports (ALR); Commonwealth Law Reports (CLR);
Federal Court Reports (FCR); New South Wales Law Reports
(NSWLR); Western Australian Reports (WAR).
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5