Aboriginal Spirituality - Land Rights

Aboriginal Spirituality - Land Rights Movement

Terra Nullius:

At the time Captain Cook arrived in Australia in `1770, he deemed Australia as “Terra Nullius” - land belonging to no one - an empty piece of land.

Therefore, when early settlers and European arrived after 1788 (the First Fleet), they could remove Aboriginal People from the land they were claiming with full support of the law behind them.

Aboriginal people were not recognised as owners of the land.

1992 - Mabo

It was not until 1992 that the notion of Terra Nullius was overturned in Australia when it was finally conceded that that was not an accurate description of the land when Captain Cook arrived.

Eddie Mabo was an Torres Strait Islander from the Mer (Murray) Islands:

The case was brought to court by a number of Meriam People, however, Eddie Mabo was a spokesperson and was highly active in campaigning for the traditional land rights of his people in the case.

The case was initially brought to the courts in 1982 and took 10 years to finally make a ruling - in the end the ruling was 6 to 1 in favour of the Meriam people.

Chief Justice Gerard Brennan ruled that because the British Government did not fully acquire the land and because the Merian people had continued ties to their native land, continuing to practice traditional culture beyond the process of European settlement, then Native Title existed.

Most significantly, the case overturned the ruling of Terra Nullius. Chief Justice Brennan stated:

The fiction by which the rights and interests of the Indigenous inhabitants in land were treated as non-existent was justified by a policy that had no place in the contemporary law of this country.

However, the Mabo decision did not automatically grant all traditional land back to the traditional owners. In cases where “freehold titles” existed (eg. ownership of land recognised by law such as ownership of land and house), allowed the owner executive possession and native title could not be claimed as it had been extinguished - this would be the case for most settled areas (eg. major cities/towns).

It opened the opportunity, however, for Aboriginal and Torres Strait Islander people to claim Native Title on areas such as:

• Crown Land
• National parks
• Some leased land in which Aboriginal People had traditional access - although this was still a grey area at the time.

Native Title Act 1993

The Native Title Act was introduced by the Keating Government in 1993 after the Mabo decision. It was the government’s response to the Mabo decision to attempt to balance the rights of current users of the land such as developers, miners, pastoralists and tourism operators with the Aboriginal people seeking Native Title.

In a lot of ways, it strengthened the hold on the land for those leasing the land and set conditions which made claiming Native Title more difficult for the Aboriginal people.

The purpose of the Native Title Act according to the Australian Bureau of Statistics was:

1. It recognized and protected Native Title
2. It provided for the validation of any past grants of land that may otherwise have been invalid because of the existence of native title
3. It provided a regime for enable future dealings in native title lands and imposes conditions on those dealings.
4. It established a regime to ascertain where native title exists, who holds it and what it is, and determined compensation for acts affecting it.
5. It created a land acquisition fund to meet the needs of the dispossessed Aboriginal and Torres Strait Islander peoples who would not be able to claim native title.

The Native Title Act was again ammended in 1998 by the Howard government and had the effect of making claims to Native Title more difficult. There have also been further amendments in 2007 and 2009 dealing with mediation between the courts, the Tribunal and parties making or defending a claim. Another amendment in 2010 dealt more specifically with public housing.

Wik - 1996

The concern over Native Title being claimed on pastoral leases was addressed in the 1996 Wik decision in the High Court of Australia. It concerned the rights to Native Title for the Wik and Thayorre people. This area is part of the highlighted area below in the area of Cape York QLD.

The Wik claim challenged the right of Pastoral leases in the area to extinguish Native Title.

Due to historical nature of the pastoral leases, initially given to protect the Aboriginal people who were trying to live a traditional life from harm from pastoralists using their land, it was ruled that the granting of a pastoral lease did not give the pastoralists exclusive access to the land.  

Therefore, it did not extinguish the claim for Native Title and that Native Title would be upheld in the area as long as the pastoralists and the traditional owners, the aboriginal people, could exist on the land harmoniously. However, in a case where interests clashed, the rights of the pastoralists would be upheld over those of the traditional owners.  

For further reading and a timeline of Native Title claims in Australia click here.