“Failure of Australia’s Native Title Act”
On arrival, Captain James Cook declared Australia to be Terra Nullius a uninhabited land and claimed ownership for Britain (Way, R.N., 2005.). Thus, began the dispossession of land by the settlers from Indigenous Australians and continues today.
Aboriginal people are determined to fight for their land to be given back (Oxfam, 2016). Ignored by the government, Indigenous Australians stepped up their fight, by forming a political movement called land rights, during the 1960’s (Burrows, E., 2016). In 1992 the High Court ruled on the Mabo case, recognising native title of Aboriginal people and Torres Strait people and removed the claim, Australia was Terra Nullius in 1788 (Cameron and Lang 2018).
In 1992 the High Court ruled on the Mabo case and recognising native title of Aboriginal people and Torres Strait people, removing the claim Australia was Terra Nullius in 1788 (Cameron and Lang 2018).
Prime Minister John Howard elected in 1996 portrayed himself, to be a hypocrite when he recognised Aboriginal self-rule. While, at the same time he proposed a Ten-point plan to amend the Native Amendment Bill 1997, hindering Aboriginal peoples’ claims to land ownership (www.nationalunitygovernment.org/content/about-sovereign-union).
A brief summary of the Native Title Amendment Act 1998 (Commonwealth)
- The amendments allowed for the some pastoral and mining leases to be authenticated. Which were previously deemed to between the Mabo and decisions.
- Some leases granted sole rights over the land, others did not.
- Pastoralists could carry out the activities allowed by their lease, even if it affected native title.
- Existing access rights for Indigenous people on some lands were confirmed – but only until native title claims could be heard.
- The right to negotiate over mining was reduced to one chance only – not at each stage of exploration and mining as before.
- On the issue of government and commercial development the right to negotiate in some circumstances was reduced to the right to be ‘consulted’.
- The government was given the right to manage water resources and air space; this could weaken or even extinguish native title in many cases.
- The Act made it much tougher to register a native title claim; but also speeded up the process.
- The amendments also encouraged the settlement of claims by agreement rather than in the tribunals or the courts.
- The amendments to the Act also outlined that they did not breach the Racial Discrimination Act 1976 (Cth)
The Act stipulates Indigenous claimants, must prove a continuity of traditional laws and customs on the land being claimed, following European settlement. Evidence used by Aboriginal people, proving their connection with land can sometimes date back over one hundred years (https://www.creativespirits.info/aboriginalculture/land/native-title)
The main areas of the legislation which enable development at the expense of native title apply where native title groups and mining companies/developers have been unable to reach agreement in the good faith negotiations mandated by the Native Title Act. What this means practically in negotiations is that mining companies and other developers know that they have the law on their side when negotiations start. If negotiations do not yield a negotiated outcome, then it is almost certain that a mining company or commercial developer will have their mining licence or project approved. This places huge pressure on traditional owners do reach agreement within the prescribed time period. (underminedfilm.com/native title).
Furthermore, it is cast in broad language, namely ‘contemporary purposes. In the absence of precise definition, contemporary purposes could mean open slather, diminishing the power of Indigenous people to resist activities such as mining and tourism.
Lobbyists’ for mining companies have influenced government policy, making donations to political parties before the approval for new mines seeking to influence government decision (nytimes 2016). From 2011- 2015 the mining industry donated almost 2.2 million Dollars to the federal liberal party, while the federal Labour party received $890,000 and the Queensland labour party received $68,000 and the Queensland party received $700,00 over the same period (Innes 2016). While the Australian taxpayer subsidises, the infrastructure needed to service the mine (Denniss, R, 2015). This Behaviour has wiped out communities.
The Queensland Labour government has extinguished Wangan and Jagalingou native title rights over the Galilee Basin waiving support through or Indian mining giant Adani. Permitting destruction of Wangan and Jagalingou ceremonial sites and places of mourning (Green Left Weekly, (1236), p.6, 2019). When native title is extinguished, it is gone forever under western law, and terra nullius is reinstated. The western land ownership gets reinstated again and Indigenous native title rights are erased.
The main areas of the legislation which enable development at the expense of native title apply where native title groups and mining companies/developers have been unable to reach agreement in the good faith negotiations mandated by the Native Title Act. What this means practically in negotiations is that mining companies and other developers know that they have the law on their side when negotiations start. If negotiations do not yield a negotiated outcome, then it is almost certain that a mining company or commercial developer will have their mining licence or project approved. This places huge pressure on traditional owners do reach agreement within the prescribed time period. (underminedfilm.com/native title).
Common law rights in native title are not gifted by the generosity of the Government. They are held solely by First Nations Peoples. However, Parliament has the authority to do, more or less and can legislate which particular common law native title rights one can enjoy and without the approval of First Nations People. The courts the decide, whether the Parliament legislation is to become Australian law.
Extinguishing Native Title is a straightforward legal concept for the Commonwealth. But is a heavy burden for native title holders. Clearly, the Federal Government needs to do more and legislate laws determining Native Title and statutory land rights (http://www5.austlii.edu.au/au/journals/LRightsLaws/2011/4.pdf, p.13).
