This paper presents an account of the main developments in the native title
debate in Australia since the 1992
Mabo decision. There the High Court
held that the common law of Australia recognises a form of native title which
reflects the entitlement of the indigenous inhabitants, in accordance with
their laws and customs, to their traditional lands. A particular feature of the
paper is that it presents an overview of the Commonwealth
Native Title
Act as amended in 1998. The paper's main findings are as follows:
- under the common law, extinguishment of native title may occur
in some cases: (a) by an act of the Crown or legislature; (b) by loss of
connection with the land; or (c) by voluntary surrender to the Crown;
- under the Commonwealth Native Title Act 1993(NTA), as
first enacted, native title can only be extinguished or impaired in one of
three ways: (a) by the occurrence of a past act that has been validated; (b) by
an agreement on the part of the native title holders; or (c) the doing of a
permissible future act;
- all the Australian jurisdictions have passed legislation in
some form or other relating to native title. Western Australia eventually
adopted a minimalist approach, legislating only to validate pre-1994 titles. A
similar approach was adopted in Tasmania, Victoria, the ACT and the Northern
Territory. South Australia, on the other hand, adopted a more comprehensive
native title regime, as envisaged in the Commonwealth NTA. Queensland and NSW
have also adopted a comprehensive model, although in NSW at least only
selective parts of the legislation have been proclaimed to commence. In effect,
the Parts of the NSW Act that are commenced deal mainly with validation of past
acts attributable to the State and the effects of validation;
- the immediate background to the 1996 Wik case was the
uncertainty, following both the Mabo decision and enactment of the
Commonwealth NTA in 1994, over the relationship between pastoral leases and
native title;
- it was decided in Wik that: the pastoral leases under
consideration in the case did not confer exclusive possession on the
pastoralist; that the leases therefore did not necessarily extinguish all
native title rights and interests; whether there was any extinguishment or
impairment of native title can only be determined by considering the nature of
the native title rights and interests which the indigenous people can establish
in relation to the land; where native title rights and interests can coexist
with the statutory rights of the pastoralist then they survive, but, to the
extent of any inconsistency the rights of the pastoralist prevail;
- the reactions of the main stakeholders in the native title
debate to Wik were very different. In particular, a different slant was
placed on the question of the uncertainty' arising from it. The Federal
Government's legislative response was based on its Ten Point Plan, first
released on 1 May 1997, then released in a revised version on 8 May 1997;
- these proposals proved to be very controversial and only a last
minute compromise reached between the Federal Government and Senator Harradine
allowed the Native Title Bill to pass through the Senate on 8 July 1998. The
commencement date for the amended Native Title Act is 30 September 1998; and
- particular features of the amended NTA are: a new emphasis on
resolving native title issues by agreement, for which purpose it includes
detailed provisions on the making of what are called Indigenous Land Use
Agreements; the validation of intermediate period acts which occurred between 1
January and 23 December 1996 (the date of the Wik decision); the
confirmation that certain previous exclusive possession acts have extinguished
native title; the exclusion of certain activities from the right to negotiate;
and the introduction of a stricter registration test which, among other things,
operates as a gateway to the right to negotiate. The amended Act also redefines
the roles of the Federal Court and the National Native Title Tribunal in a way
that is consistent with the High Court's decision in the Brandy case
(1995) 183 CLR 245.
