Native Title and its ramifications for Australian Law The Torrens Title System: A system devised to recognise provable ownership of land by Law. Australia initially adopted the British system using Title of Ownership, deeds of grant and following the doctrine on tenure where the Crown, is the ultimate owner of all lands (Gray et al. 2009). However, it was a large problem with legal fees, proof of ownership and forgeries until the Government managed resister was established enabling easier transactions and trust in ownership rights.
The Torrens Title System, introduced in Queensland in 1861, is a register of real property holdings that is maintained by the State. The system creates indefeasibility by guaranteeing title against past wrongdoings by registration of land titles with the Land Titles office to guarantee ownership and prevent fraud. Once signed, title cannot be repudiated. This system replaced the use of common law to solve disputes over real property. Native Title as described in the NTA 1993:
Native Title was forced into being through the establishment of the Native Title Act in 1993 after the Mabo ruling granting the Meriam people Rights to their ancestral lands on the Murray Islands. Section 223 (1) of the act states – ‘The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: a. the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and b. he Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and c. the rights and interests are recognised by the common law of Australia. ‘ NTA 1993 The concept of Native Title: The concept of native land ownership has been a simmering subject on many a political agenda since 1827, (R v Tommy 1827), and only came to a head 166 years later, when dear old Eddie Mabo discovered his lands were not his own, took the Queensland Government to court and won the right of Native Title changing Australian history for indigenous peoples.
Until then, the Terra Nullius doctrine had been assumed and used to keep all lands and waterways care of the Crown, often leaving indigenous communities dispossessed and their land rights extinguished. Terra Nullius: Taken from the Latin expression from Roman Law meaning ‘land belonging to no one’, Terra Nullius was wrongfully assumed on the land of Australia post colonisation with regard to the rights of the indigenous people.
Terms such as ‘empty’ and uncivilised’ have also been used in conjunction with Terra Nullius, all of which were overturned by Mabo. The British Crown claimed Terra Nullius on Feb 7 1788 at Sydney Cove when the First Fleet arrived with a British flag ready for claiming sovereignty and ownership. It was noted to be ‘desert and uncultivated’ and required settlement. No recognised sovereign power was noted and hence, British Law was imposed. Native Title requires equal treatment for indigenous peoples with regard to the law and their rights over land.
The Law is clarified further by rejecting any position in law that could discriminate against indigenous peoples through the denying of pre-colonisation rights that have continued to be exercised. The key ideas from the subsequent Native Title Act 1993 and The Native Title Act Amendment in 1998, allow indigenous people to be involved, with conditions, in the negotiation of traditional lands and waterways. It now holds clarification for extinguishment, the recognition and protection of native title and industrial and agricultural leases on claimant’s traditional lands.
Conversely, it also places restrictions on native title claims providing security of tenure to non-indigenous Australians holding pastoral leases and other land titles. NTA 1993 established and defined the roles of the authorities involved (National Native Title Tribunal, Federal Court, Land Use Agreement, Land Acquisition Fund) and the processes by which claims could be formerly lodged including onus of proof and the technical contents of applications required proving native title.
Once a native title is established, NTA 1993 provides the regime to ascertain where a title exists, who holds it and what it comprises of. Compensation can also be sought under the NTAs, for dispossessed peoples, the nature of and amount providing a turning point in the relationship between indigenous and non-indigenous peoples of Australia. The impact of Native Title on British Law: The greatest impact was on the ‘doctrine of tenure’, relating to English feudal Land Law, stating that all land is held either mediately or immediately by the King or Queen.
Lands prior to Mabo were “enjoyed only as, or under, grants made by the Crown”. (Griffith 1998) Indigenous land rights that were deemed to be extinguished, can now, with the appropriate proof, be reclaimed. The Crown Sovereignty rejected to become a Radical Title, capable of change under future rulings in the Federal Courts. Native Title is recognised by Common Law but does not result from and becomes inalienable unless surrendered to the Crown. Under Common Law, native tile can be possessed by a group, community or an individual and is protected by law.
The process for Native Title Claims – please refer to hand-out – brief outline A native title success story – please refer to hand-out – brief outline The strengths in the current law for aboriginal and Torres Strait islanders includes the right to apply for native title, negotiate the details and, if necessary, claim compensation in lieu of loss of native lands and customs. Mabo opened the door for native title and other rulings, such as Wik, provided insights into the ability to co-exist land rights and leases and that traditional rights are not necessarily extinguished.
The fluidity of these rulings, due to the incorporation into common law, allows for elasticity in court decisions regarding each case as independent of the next. The NTA also provides for assistance for applications, advice and financial aid for claimants entering the application process allowing for equity between parties involved. It also takes into consideration the oral nature of the indigenous history, providing the appropriate method of noting the evidence and lodging it during proceedings.
The strengths in the current law for pastoralists and mining companies outnumber those for the indigenous people and hence, aid the concept of bias against the indigenous claims. In favour of these parties is the ability to maintain pastoral and mining leases after native title has been granted. Neither party has exclusive possession as they are deemed to ‘co-exist’. However, the leases prevail over the native title to the extent of any consistencies (Griffith 1998), favouring the leasee.
Although the indigenous people gained the right to negotiate, advice and recommendations come at a cost and are open to bias. As has been noted, in the last 17 appeal applications surrendered to the National Native Tribunal, 2000 – 2010, all, but one, have been granted leading to the understanding from mining companies that if an agreement is not negotiated to their satisfaction, they may apply to the Tribunal and their requests will be granted anyway, leaving them with no pressure to reach agreement.
Under the Mineral Resources Act 1989, section 8 states that any minerals found on or within the land belong to the Crown. Corporations fulfilling current leases to mine minerals, pay royalties to the Government but are not legally required to extend that service to the recognised native title holder. This leaves an imbalance in the dissemination of profits to all parties involved.
This disparity can seen between the Yindjibarndi people and the Fortesque Metal Group where, the Yindgjinarndi Aboriginal Corporation requested 5% return (Four Corners Script, 2011) from the wealth gained from ore mining on their native lands, only to be knocked back and told “if they couldn’t reach agreement, FMG was prepared to use legal action to push its plans through anyway (ABC Four Corners, Iron and dust. Jul 2011). Although considered strength for miners, it is a sad weakness in the NTA’s ability to protect native lands and the people who have traditional connections with it.
The weaknesses in the current law for aboriginal and Torres Strait islanders are plentiful with some requiring attention as will be discussed in the recommendations. The application process is lengthy, expensive and difficult. The necessity of proof uses means such as anthropology, archaeology, historic evidence, oral evidence for group customary traditions and evidence of time lines. Very hard to prove, to a legal standard, particularly when the Government defined the indigenous people’s identity until the 1970s.
Past rulings have deemed displacement by white settlement as a valid reason for extinguishment, leaving the connection to the land broken. This is, arguably, an unfair and unjust outcome (Merkel 2008). An example of this failing to meet the requirements can be seen in Yorta Yorta Aboriginal Community v Victoria, 12 Dec 2002. Late 19th century abandonment of traditions and occupation of the land meant the Yorta Yorta people failed to establish continuity for a Native Title claim. Jagger, Yorta Yorta) “The current legal arrangements in native title have the effect of obscuring the agents of dispossession and blaming the victims”. Brian Wyatt, Chairman of the National Native Title Council. The right to negotiate (RTN) may be by-passed where a satisfactory State or Territory regime is in place, the right to negotiate may also only be issued once at the point of exploration versus mine development stage. RTN may also be subject to political pressure and control should intervention be required to reach a solution during negotiation.
Land-use agreements generally involve sacrifice of native title rights and heritage values supposedly in return for certain benefits. However, according to Rachel Siewart (Greens Senator)where Aboriginal communities lack the capacity to negotiate these complex agreements or to ensure that they are enforced, they simply are not delivering. ” This leaves the communities living in third world conditions whilst companies make billions from under their lands. Arbitration remains biased towards corporations as the Tribunal acts for all parties involved leaving many agreements to be made outside arbitration.
Proving Native Title can take decades whereas, Compulsory Acquisition can takes days, leaving a huge imbalance of equity for the indigenous people. When they are compensated, many indigenous elders lack the financial experience to know what to do with large sums of money and as witnessed with the Dunghutti Elders Council, after receiving hundreds of thousands of dollars, have ‘frittered’ it away arguing over genealogy and undocumented expenses (SMH Jun 2010) Mining negotiations, particularly for the Yindjibarndi people of Pilbara, have highlighted in inconsistencies of outcomes the NTA has delivered to indigenous peoples.
Although natives titles are being granted, many come with constraints, such as Western Australia V Ward where the rights of the indigenous people of Miriuwung-Gajerrong, were specifically curtailed to allow mining leases to proceed unencumbered by the newly imposed native title and minerals and other natural resources remained the property of the crown. Horrigan 2000) The weaknesses in the current law for pastoralists and mining companies include the need to investigate for Native Title, Land Use Agreements and the conditions that go with it, such as the right to negotiate, leaving lengthy waits for leases and rights of appeal that may follow. Native Title holders are entitled to compensation if their rights are impaired under the Indigenous Land Use Agreements adding to costs. Potential resolutions: The introduction of an independent governing body for the decision making processes involved. Australian courts continue to refine the elements and uances of the Native Title Acts with regard to rights and extinguishment both partial and whole. However, these rulings are subjective and open to financially induced bias depending on the parties involved. An independent governing body will provide the power to maintain consistency in rulings and a fairer outcome for all parties concerned. The concept of compensation, how it is determined, to whom it is given and the amounts awarded requires addressing as the balance for commercial activities against indigenous peoples loss of culture and financial benefit from their lands, is inequitable.
Companies such as Fortesque Metal Group, negotiated with the Yindjibarndi people of Pilbara, over the nature of the compensation, detailing programs of education rather than cash. Such details need to be organised using a neutral party to decide what is best for the people should the Elders lack sufficient experience with such large sums of money and the infrastructure required to progress their people socially and culturally.
Many indigenous peoples lack the ‘western’ skills learned through negotiation and experience when applied to legal arguments in Australian law. This lack of equity may need to be addressed with support from the National Native Tribunal, in order to provide proceedings with an equal balance at the negotiation table. Many negotiations have fallen through, through internal fighting amongst indigenous peoples rather than with the commercial or industrial party. Education into negotiating would be beneficial before proceedings begin in order to reach mastery.
Benefits intended for compensation for indigenous peoples communities are being channelled into costs of administration and litigation fees. A fairer system will need to be devised so that communities are not taken advantage of with legal parties stalling for financial gain. An independent governing body with the powers to rethink the present system would ensure such a balance for future settlements and decide the destination of proceeds won in settlements.
Native title advice is costly and time consuming due to the lack of a register listing land titles where extinguishment has occurred or where co-existence occurs. Re-appropriating funds to create a register would lessen the financially burden in the long term. This list could be devised by the National Native Tribunal and be accessible by claimants preventing unnecessary costs of research. Continuous amendments of The Acts will need to be maintained until a continuous, dependable system that is acceptable for all is reached.