Indigenous Land Rights vs Non-Indigenous Land Rights Analytical Essay

Introduction

The common law canon of land law known as the principle of Aboriginal title is what is referred to as the doctrine of native title in Australia.¹ Under this doctrine, the land law of Australia appreciates the fact that there does exist indigenous people in the country who have rights, as well as interests to the country’s land that emanates from history, traditions, and customs.

The concept provides that the indigenous Australians are the original owners of the land because they are the natives of Australia. Consequently, they should benefit from the land and any interest accruing from the land. In addition, the titles issued by the Crown when Australia was granted independence did not take away the Aboriginals rights to the land.²

There has been a protracted struggle for the recognition of these rights and the respect for these interests on land in the legal front since the inception of independence in 1788. The struggle has subsisted up to this day, in spite of the fact that there has been a lasting period exceeding two hundred years of deprivation and displacement.

This shows how the issue of land rights in Australia is of importance, more so to the Aborigines. Over the years, the indigenous citizens of Australia have been at the forefront calling upon successful governments, as well as the wider Australian community to come to terms with their unique status as the native, bonafide, historical, and rightful owners of land in Australia.³

However, this issue has taken different angels over the years, cutting across political divide and the justice system. This essay focuses on the land rights of this indigenous group of people, as well as its effect on the non-indigenous peoples’ land rights.

The Mabo case

This is a case that acted as the basis for acknowledging the natives of Australia as the rightful land owners. The case was termed as the Mabo v Queensland case.⁴

This case saw the plaintiff, Eddie Mabo gain an unexpected level of popularity, especially from persons who believed that they enjoyed native rights over land, when he decided to take initiative to claim the ownership of the native title of Meriam, amongst a couple of other individuals.

The case was essentially seeking for recognition of the scattered homelands in the Torres Strait region of the country as native land that enabled the locals enjoy unlimited rights over the land as the bonafide landowners. The main reason for this was that the residents of Torres Strait had been annexed from Queensland in 1879. Consequently, they sued the governing authority of Queensland as the defendant to the suit.

The annexation had created a state of uncertainty in terms of the required proper system of land ownership by the plaintiffs and necessitated the suit. The suit against the state of Queensland was to last a total of ten years in the courts before the determining factors were settled. In delivery of the ruling to support the native land rights, Chief Justice Brennan said:

“The fiction by which the rights and interests of indigenous inhabitants of land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country” Mabo v Queensland.⁵

This effectively settled the matter that had been through a long court battle period. The case overturned the earlier principle of terra nullius that had been set in the case of Milirrpum v Nabalco⁶, also known as the “Gove land rights case”.

In the Milirrpum case matter that had been brought before the Supreme Court, Justice Richard Blackburn unambiguously rejected the idea of the existence of native title, pronouncing against the plaintiffs on various issues on law and fact. Nonetheless, he rejected the principle of aboriginal title in place of terra nullius, which propounded that land was not owned by anyone at the time of British settlement.

The instant case of Mabo, thus, came to recognize the people of Meriam in the Murray Island in Torres as the native title owners in regard to a section of their traditionally owned land.⁷

The court ruled that the Crown had no right to the land as earlier granted to the colonialists of European origin when they migrated to Australia. The ruling was based on the fact that the principle of terra nullius lost its significance and could not exist parallel with the right of the Crown to hold title deeds.

In other words, the fact that the instant case of Mabo granted inherent rights of land ownership to the natives consequently meant that the terra nullius principle in the case of Milirrpum⁸ could not stand, as the land rights that were ruled to be rightly possessed by the natives could not simultaneously be possessed by the Crown.⁹

It is to be well understood that the declaration of the presence of native land rights in the land in Australia in no way acted to oust the proprietary rights of the non-indigenous groups.¹⁰ The court pronouncement was never a suggestion that title to land was to henceforth shift from the non-indigenous groups to the indigenous ones.

As a matter of fact, this would create anarchy and unending conflict as the non-indigenous groups resist being chased from their proprietary owned land. Rather, the court ruling merely meant to provide guidance with respect to the search for truth and justice on a historical perspective.

The court’s declaration in this case was meant in a way to “settle the scores” in as far as discourse concerning the rightful owners of land was concerned.¹¹ Additionally, the judgment meant to be a mere declaration of the place that the native communities of Australia have in regard to ownership of the country, in effect destroying the argument that colonizers were the rightful owners of the nation at the time of colonization.

In effect, the recognition of the rights of these native groups on the land was meant to have no effect on the land rights of non-indigenous groups.

Enactment of the Native Title Act, 1993

A year after the court recognized the native title in the above discussed case, the Keating led government in 1993 acted to formalize the new legal principle by enactment of a piece of legislation that would codify the native entitlement to land, the Native Title Act, 1993.

The Act gave recognition, respect, and protection to the Aboriginal and the Torres Strait Islander inhabitants and their land because the statute set it straight as to the particular rights that the natives were to enjoy, including the possessed interests and the manner of appropriation.¹²

This, therefore, meant that the residents of Torres Strait whose interests in the land was shaky before the enactment of this law could now be assured of their interests and use the land to grow themselves economically through the acquisition of credit.¹³

The Act further attempted to bring a clarification on the legitimate position of the process required to bring land under the native ownership under the national land laws, thereby allowing for their claim of title, protection, and recognition through the national courts. By doing this, the court aimed at bringing about precision on the required procedures to acquire title for the land.

Pursuant to this, the Act created the National Native Title Tribunal. The tribunal was tasked with the huge responsibility of deciphering claims to title on native land by finding out the historical ownership of the land, parties that hold interests to the land, the opinion of the elders and neighbours, amongst other things, to decide the allocations of title to the proper owners of the land.¹⁴

It is to be well observed that the land that was affected by the new process of acquiring title was land that had been declared as native land and affected the natives and indigenous land owners, rather than the non-indigenous landowners.¹⁵

In other words, the enactment of this piece of legislation further proves and points to the fact that the recognition of indigenous land in Australia basically had nothing to do with the non-indigenous land owners, as the laws on the native land, such as the instant statute, did not affect the operations of the non-indigenous land in any way.¹⁶

All institutions created by the statute concern, solely, the indigenous land, rather than the non-indigenous one, thereby further proving the point that the recognition of indigenous land rights was totally disassociated from non-indigenous proprietary rights over land.

The landmark case

In 1996, there arose a new form of uncertainty over native claims on pastoral areas. In clarification of the issue, the case of Wik Peoples v Queensland¹⁷ provided a better understanding. In this case, the High Court, by a slim majority, ruled that native title would not necessarily be extinguished by reason of the pre-existing leases on the pastoral areas.

The leases over these pastoral areas had been granted by the Crown and consequently ran for a long period of time. As a result, the court established that it was possible to have the Aborigines and the lease holders possess rights to the land without conflict.

This case further proved that indigenous land rights from the natives did not affect the rights of the proprietary non-indigenous land holders because of the possibility of co-existence of the separate rights to the land.¹⁸

For instance, there is a possibility that land owned under a sub-lease by a non-indigenous holder of such land could consequently be owned by a different person under a native ownership with the sharing of interests and rights thereto. Essentially, this demonstrates the lack of conflict between indigenous ownership of land and non-indigenous ownership.

In line with the above case, the Native Title Amendment, 1998 was passed with the objective of resolving all claims of the native land. The government of Howard also sought to provide security of tenure to the non-Aboriginals for any land that they claimed as provided by the Native Title Act, 1993.

This amendment was basically aimed at bringing statutory law in consonance with case law that had been passed, which allowed contemporaneous possession of interests on land.¹⁹

A “bundle of rights”

The native rights to land were declared as a “bundle of rights” during a 2002 ruling in the case of Western Australia v Ward²⁰. It was further ruled that the native rights did not violate any other rights.

Although this decision came under major criticism not only from the native owners of land in various parts of Australia, but also from civil society, as well as the legal practitioners, the case clearly identified the place of native land rights in relation to the other existent rights, such as those of non-indigenous Australians.

The case places the rights of native land rights owners juxtaposed with the rights enjoyed by the non-indigenous owners of land, albeit placed at a lower level.

This explains that the rights of indigenous land owners do not affect the rights enjoyed by non-indigenous owners, such as the lessees of land.²¹ The fact that it was possible for the claimants to walk around the land owned by the native owners showed that the native rights were not entirely exclusive of possession.

In the case of Bennell v State of Western Australia²², a precedent was set in the matter of the existence of native rights over land in a capital city. Justice Wilcox J was of the opinion that native title was still effective in the Perth region, even if it was an urban area.

Urban settings are characteristically owned by a myriad of regimes of land ownership, such as leases, freehold, and so on. Capital cities are strictly managed by local and national authorities, more so in the area of land ownership to reap taxes as benefits.²³ Nevertheless, this authority appears to allow native rights to land to be enjoyed in such situations.

This, therefore, points to the contention that native title subsists in various situations that do not act to limit the rights enjoyed in land. Indigenous land rights in Australia, thus, have nothing to do with non-indigenous land rights.²⁴

Conclusion

Native land rights exist independent of the other land rights on any land. It is a special form of land ownership as it appears to dig into the facts of the past and establish the proper and bonafide ownership of land, rather than looking at the possession of title to the land.²⁵ The system recognizes past injustices on land and seeks to avert them by creating a better and equitable system of ownership.

In this essay, the focus has been on the effect of indigenous land rights over the non-indigenous ones. As seen in the text, the case of Mabo gave the recognition of indigenous rights to land as the basic formation. The clarity has, however, provided that the intention of this was never meant to oust the rights of others, but to share the interests.

The enactment of the Native Act of 1993 closely followed the delivering of the judgment and the new growth of jurisprudence to codify the principles set thereto. Subsequent amendments since then have helped develop the understanding, working, and implementation of the provisions of the Act to enable a smoother and easier operation.

Therefore, it may generally be said that indigenous rights over land do not clash, nor have any effect over the non-indigenous rights, as the demarcation between the two is clear. As a matter of fact, the law creates a co-existence of the rights shared between the two set of rights.

Bibliography

Books/Articles

Hughes Helen, and Warin Jenness, A New Deal for Aborigines and Torres Strait Islanders in Remote Communities (Centre for Independent Studies, 2005).

Hughes Helen, Lands of Shame: Aboriginal and Torres Strait Islander” Homelands” in Transition (Centre for Independent Studies, 2007).

Jackson Sue, Michael Storrs, and Joe Morrison, ‘Recognition of Aboriginal rights, interests and values in river research and management: Perspectives from northern Australia’ (2005) 6 Ecological Management & Restoration 2, 105.

Sanders Will, ‘In the Name of Failure: A Generational Revolution in Indigenous Affairs’ (2008) The Fourth Howard Government, 187.

Stevens Stanley, Conservation Through Cultural Survival: Indigenous Peoples and Protected Areas (Island Press, 1997).

Taylor John, and Owen Stanley, The Opportunity Costs of the Status Quo in the Thamarrurr Region (Centre for Aboriginal Economic Policy Research, 2005).

Tickner Robert, Taking a Stand: Land Rights to Reconciliation (Allen & Unwin, 2001).

Cases

• Bennell v State of Western Australia [2006] FCA 1243
• Mabo v Queensland [No 2] (1992) 175 CLR 1; 66 ALJR 408 (Mabo [No 2])
• Milirrpum v Nabalco (1971) 17 FLR 141
• Western Australia v Ward (2002) 76 ALJR 1098; [2002] HCA 28
• Wik Peoples v Queensland (1996) 187 CLR 1; 71 ALJR 173

Statutes

• Native Title Act, 1993
• Native Title Amendment Act of 1998

Footnotes

¹ Stevens Stanley, Conservation Through Cultural Survival: Indigenous Peoples and Protected Areas (Island Press, 1997), p. 49.

² Hughes Helen, Lands of Shame: Aboriginal and Torres Strait Islander” Homelands” in Transition (Centre for Independent Studies, 2007), p. 1.

³ Hughes Helen, Lands of Shame: Aboriginal and Torres Strait Islander” Homelands” in Transition (Centre for Independent Studies, 2007), p. 1.

⁴Mabo v Queensland [No 2] (1992) 175 CLR 1; 66 ALJR 408 (Mabo [No 2])

⁵Mabo v Queensland [No 2] (1992) 175 CLR 1; 66 ALJR 408 (Mabo [No 2])

⁶Milirrpum v Nabalco (1971) 17 FLR 141

⁷ Jackson Sue, Michael Storrs, and Joe Morrison, ‘Recognition of Aboriginal rights, interests and values in river research and management: Perspectives from northern Australia’ (2005) 6 Ecological Management & Restoration 2, 105.

⁸Milirrpum v Nabalco (1971) 17 FLR 141

⁹ Sanders Will, ‘In the Name of Failure: A Generational Revolution in Indigenous Affairs’ (2008) The Fourth Howard Government, 187.

¹⁰ Hughes Helen, Lands of Shame: Aboriginal and Torres Strait Islander” Homelands” in Transition (Centre for Independent Studies, 2007), p. 2

¹¹ Jackson Sue, Michael Storrs, and Joe Morrison, ‘Recognition of Aboriginal rights, interests and values in river research and management: Perspectives from northern Australia’ (2005) 6 Ecological Management & Restoration 2, 105.

¹² Taylor John, and Owen Stanley, The Opportunity Costs of the Status Quo in the Thamarrurr Region (Centre for Aboriginal Economic Policy Research, 2005), p. 1.

¹³ Hughes Helen, Lands of Shame: Aboriginal and Torres Strait Islander” Homelands” in Transition (Centre for Independent Studies, 2007), p. 2.

¹⁴ Jackson Sue, Michael Storrs, and Joe Morrison, ‘Recognition of Aboriginal rights, interests and values in river research and management: Perspectives from northern Australia’ (2005) 6 Ecological Management & Restoration 2, 105.

¹⁵ Stevens Stanley, Conservation Through Cultural Survival: Indigenous Peoples and Protected Areas (Island Press, 1997), p. 54.

¹⁶ Taylor John, and Owen Stanley, The Opportunity Costs of the Status Quo in the Thamarrurr Region (Centre for Aboriginal Economic Policy Research, 2005), p. 2.

¹⁷Wik Peoples v Queensland (1996) 187 CLR 1; 71 ALJR 173

¹⁸ Taylor John, and Owen Stanley, The Opportunity Costs of the Status Quo in the Thamarrurr Region (Centre for Aboriginal Economic Policy Research, 2005), p. 1.

¹⁹ Hughes Helen, and Warin Jenness, A New Deal for Aborigines and Torres Strait Islanders in Remote Communities (Centre for Independent Studies, 2005), p. 1.

²⁰Western Australia v Ward (2002) 76 ALJR 1098; [2002] HCA 28

²¹ Tickner Robert, Taking a Stand: Land Rights to Reconciliation (Allen & Unwin, 2001), p. 37.

²²Bennell v State of Western Australia [2006] FCA 1243

²³ Sanders Will, ‘In the Name of Failure: A Generational Revolution in Indigenous Affairs’ (2008) The Fourth Howard Government, 187.

²⁴ Tickner Robert, Taking a Stand: Land Rights to Reconciliation (Allen & Unwin, 2001), p. 40.

²⁵ Taylor John, and Owen Stanley, The Opportunity Costs of the Status Quo in the Thamarrurr Region (Centre for Aboriginal Economic Policy Research, 2005), p. 1.