Native Title and Land Rights

 One of the biggest problems facing Indigenous peoples around the world is access to land and recognition of land rights. In the past twenty years or so Australia has developed two mechanisms to allow Indigenous Australians to gain legal land status. The following is a paper I wrote for the class explaining the difference between these two policies Native Title and Land Rights

Introduction   
    Native Title and Land Rights are two ways that Indigenous Australians can gain access or effectively lay claim to land that can be then perceived as being under Indigenous “ownership.” But the processes and the rights afforded with each of these land distribution systems are quite different.
Native Title
    The idea of Native Title recognizes that Indigenous peoples’ law and customs are older then the Australian government and so can not be regulated by the government. Instead, it was necessary for the government to develop a system by which people could  have recognized rights to land/waters. Traditional law and customs could then be continued by Indigenous people more easily. The foundation of Native Title is that Indigenous Australians have rights to access resources and ‘country’ because of their traditional laws, customs, and history.(Way with Beckett, 1997-1999)
    Native Title is a federally recognized process that is applied in all states of Australia in a similar manner. Its wording and application is broad and flexible enough to accommodate the diversity of the Indigenous community and the different state attitudes.(Way with Beckett, 1997-1999)
    Native Title was not only the first recognition of the Australian government that Indigenous Australians had rights to land but also the overturning of the idea of terras nullis, in the Mabo court cases. (National Native Title Tribunal [NNTT], 2008) Since Native Title was originally recognized in court it began as common law, and was successively clarified by other court cases. This led to confusion and undefined process for claiming Native Title. To alleviate this situation, the Native Title Act was passed, which outlined the criteria and process for making a Native Title claim. (NNTT, 2008, 2009)
    The claims process for Native Title consists of collecting large amounts of information or “proof” of the claimants connection to the land/waters being claimed. (NNTT, 2009) The application is then submitted to the Federal Court and then refereed to the Native Title Register, where the application is reviewed. If the application is successful, the Register then notifies other stakeholders and the general public incase they would like to become parties to the case.(NNTT, 2008) Becoming a party will give that stakeholder a voice in any mediation that takes place. Lastly, the Register oversees the creation of an Indigenous Land Use Agreement (ILUA) which becomes the mediated agreement between all parties which lays the foundation of coexistent land use. (NNTT, 2008)
    While the rights gained through Native Title will differ from group to group the following are some examples: the right to negotiate mining leases, right of access to pastoral/agriculture leases, and the right to comment on proposals effecting the land for which native title is held. (NNTT, 2008)
    While Native Title is an important tool for Indigenous Self-Determination and gaining access to traditional lands it does have limitations that freehold Land Rights do not. For instance, Native Title holders can not exclude other users except in very special circumstances or where lands were held in trust for the use of Indigenous peoples in the first place. (NNTT, 2008) Also, in certain states Native Title can be “extinguished” by pastoral or agriculture leases and though the Native Title holders may be able to negotiate about development projects taking place on the land they do not have the power to stop development out right. (NNTT, 2008) This is a problem because if the development disrupts the Native Title holders from maintaining their traditions it can lead to the “extinguishing” of that title.
Land Rights
    Land Rights followed quite a different evolutionary course from Native Title. Land Rights developed out of the social atmosphere of the 1970s in the form of state statutory law. (Way with Beckett, 1997-1999) There is currently no country wide or federal system that works with Indigenous peoples to gain Land Rights. Instead, each Australian state has developed its own system of Land Rights law and claims processes. (Way with Beckett 1997-1999)
    The two states with the most extensive Land Rights legislation are the Northern Territory and New South Wales. Both of these states have created Land Councils and created a claims process. ( McRae, H., Nettheim, G., Beacroft, L., with McNamara, L. (1997) pp 175-177, 190-200) Through the claims process Indigenous groups can gain freehold, unalienable title to portions of Crownland by providing description and evidence of their connection to the portion of land in question. The Land Councils assist claimants in this process and also act as representatives and negotiators. Once a Land Right is gained it is non-extinguishable but, it can be leased back to the Australian government and still has limited defenses against mining interests. (McRae et. al 1997 pp 175-177, 190-200)
    On the other end of the spectrum are the two states with the least amount of Land Rights process or law available. Western Australia has no modern Land Rights legislation and still holds Indigenous land in trust. South Australia has assigned two large areas to Indigenous peoples with freehold title but, there are no claims procedures.(McRae et. al. 1997 pp 190-200)
    The states of Victoria, Queensland, and Tasmania all have polices that fall between these two perspectives of available Land Rights.(McRae et. al. pp 190-200)

Comparison
    Each of these polices have advantages and disadvantages.
    Advantages of both are the access to resources and recognition of Indigenous rights given to peoples that have traditionally been dis-enfranchised. Native Title can be widely applied to peoples and situations which makes it a tool for gaining access but also for reconciliation between the land’s traditional users and newer interests. Land Rights are powerful because they are recognized as full ownership of land, not just by Indigenous people but, by other Australians. This gives a kind of status Native Title can’t, which can further overall self-governance.
    Dis-advantages of both lie in how sturdy they are against government and mining development policies. Native Title and Land Rights can not stand in the way of new mining projects, housing developments, or (in some cases) public parks.
    Major differences in the polices lie, as described above, in how they came about and how they are gained/administered. Native Title gives more freedom of traditional law but, requires much more negotiation and access with others. Land Rights, however, once gained can have powers of exclusion.
Conclusion
    Recognition of Indigenous land rights have come along way in the past 20-30 years but more work still can be done. Without ‘country’ the preservation of identity through culture, self-determination, and self governance is not possible. That is why the tools of Native Title and Land Rights are so important for moving forward in Indigenous, Australian, and Global communities.

Sources

McRae, H., Nettheim, G., Beacroft, L., with McNamara, L. (1997). 2nd Ed. Indigenous     Legal Issues: commentary and materials. Chapter 4 Land Rights Legislation,     163-200. North Ryde: LBC Information Services.
National Native Title Tribunal. (2009). Native Title: An Overview [Brochure].     Commonwealth of Australia
National Native Title Tribunal. (2006, Updated May 2008). About Native Title [Brochure].     Commonwealth of Australia
Way, Firth; with Beckett, Simon: Australian Research Council Collaborative Research     Project. (1997-1999). Discussion Paper 4 Land-Holding and Governance Structures     Under Australian Land Rights Legislation. The University of New South Wales     Murdoch University.