Information AboutNative Title |
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Native title can co-exist with non-indigenous proprietary rights and in some cases different indigenous groups can exercise their native title over the same land. In this way, it represents a local example of the fragmentation of proprietary interests. More particularly, it is also an example of two distinct systems of law operating within the same geographic, national and jurisdictional space. It is a recognition by the Common Law of Aboriginal Law . However, to the extent of any inconsistency between Australian law and Aboriginal and Torres Strait Islander law, non-indigenous rights will generally prevail. The National Native Title Tribunal is the body that investigates claims by Aboriginal and Torres Strait Islander peoples. Native title determinations are made by the High Court Of Australia , the Federal Court Of Australia or a recognised body, such as South Australia's Supreme Court and Environment Resources And Development Court . The National Native Title Register (NNTR) contains approved determinations. BEFORE MABO There had been a long campaign by Aboriginal people and Torres Strait Islanders for Land Rights . This included the Strike And Walk Off by the Gurindji people at Wave Hill cattle station in 1966 , followed by the Woodward Royal Commission and the Aboriginal Land Rights Act of 1976. MABO Only in 1992 was the assumption that Australia was ''terra nullius'' struck down by the High Court in the Mabo decision, which granted Murray Island in the Torres Strait to its Torres Strait Islander residents. As Justice Brennan stated in ''Mabo (No. 2)'', "native title has its origin and is given its content by the traditional laws acknowledged by and the customs observed by the indigenous inhabitants of a territory". NATIVE TITLE ACT 1993 The legal concept of Native Title as it applies in Australia was recognised by the judicial system in 1992, and the Keating government later enacted the Native Title Act in 1993 to clarify the legal position of landholders and the processes that must be followed for Native Title to be claimed, protected and recognised through the courts. The concept of claiming Land Rights is independent of Native Title. Native Title is a recognition under Australian law of the ''pre-existing rights'' of Aboriginal and Torres Strait Islander peoples (ie the rights they had and exercised before Australia was settled) and it is not the same as Land Rights Aboriginal Land Rights Acts . Land Rights are (new) legal rights that are ''created and granted'' under Land Rights law to Indigenous Australians. In a land rights claim Indigenous Australians can seek a grant of title to land from the Commonwealth, state or territory governments. That grant may recognise traditional interest in the land, and protect those interests by giving Indigenous People legal ownership of that land. PASTORAL LEASES Native Title law was subsequently modified by the High Court's Wik Decision in 1996 that not all pastoral leases extinguished Native Title, as had hitherto been assumed by some commentators. The Native Title Act was amended by further legislation (the Native Title Amendment Act) in 1998 with the aim of streamlining the claims system, and granting better security of tenure to non-indigenous holders of Pastoral Lease s and other land title, where that land might potentially be claimable under the Native Title Act. SEE ALSO
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