About Australia (Aboriginal People)

Mabo
Eddie Mabo and four other plaintiffs sought confirmation of their traditional land rights on Murray Island (Mer) in the Torres Strait. The plaintiffs claimed Murray Island and surrounding reefs had been continuously inhabited and possessed by the Meriam people and -- while recognising Crown sovereignty -- they claimed their rights to the land had not been extinguished by European settlement. 

After a 10-year fight, the case was determined in favour of the plaintiffs -- with a majority of six to one. The ruling was a landmark decision as it effectively nullified the doctrine of terra nullius -- the assumption that Australia was uninhabited or "empty" at the time of first European contact and
therefore Crown territory by default. The ruling recognised that Aboriginal and Torres Strait Islander people may still hold common law title or native title to land where it has not been lost by valid acts of government, or the loss of traditional connection with the land.

However the High Court indicated that native title is extinguished by grants of exclusive possession -- such as freehold and residential leases. The Native Title Act sought to incorporate the principles of the Mabo case into Australian land law and management. The aim of the legislation was two-fold: to preserve the integrity and certainty of Australia's land management system, and to
provide a measure of justice for Aboriginal and Torres Strait Islander people.  It was shaped after a long process of discussion and negotiation with Aboriginal and Torres Strait Islander people, State and Territory governments and mining pastoral and other industry groups.

Wik
It was assumed in the High Court's Mabo decision that native title extinguished by grants of exclusive possession included pastoral leases and other non-exclusive tenures. This assumption was carried through into the Native Title Act. However in 1996, the Wik people of Cape York brought a case to the High Court, which served to test the validity of this assumption. 

In December 1996, the High Court handed down its decision on Wik, ruling that native title may survive on pastoral leases, but added that the rights of pastoral lessees prevail over any rights that native titleholders may have. The implication of the High Court's Wik ruling was exposure of a much greater area of Australia over which native title claims could be made -- without deciding
whether any particular claim would be successful.

The Government believed legislative amendment of the Native Title Act was essential. On September 4, 1997, the Government introduced the Native Title Amendment Bill (1997) to deal with the uncertainty arising from the Wik decision. The Senate passed the Bill on July 8, 1998 after comprehensive consultation with all stakeholders. The new Native Title Act may be summarised
by the following features, which incorporate the Government's 10-point plan:   Validation of acts between January 1, 1994 and December 23, 1996 -- ensuring the legal effect of acts or grants made over non-vacant Crown land between the commencement of the Native Title Act and the Wik decision.

Confirmation of the common law status of native title -- allowing States and Territories to confirm the High Court's Wik decision that exclusive tenures -- such as freehold, residential, commercial and most agricultural leases, and existing public works -- granted on or before December 23, 1996 extinguished native title.

Confirmation that essential government-type services to the public can be provided without extinguishing native title -- ensuring native title holders are entitled to full compensation for any impact on their native title rights. 

Confirmation State and Territory Governments' rights to permit all primary production activities on pastoral leases, even if native title exists -- allowing pastoralists to manage their properties into the future. If additional rights are granted, native title will be suppressed -- not extinguished -- and
native title holders will be entitled to full compensation.

Confirmation of statutory access rights -- allowing registered claimants who show they had physical access to pastoral lease land on December 23, 1996 for the purpose of carrying out traditional activities to continue to have access while their native title claim is determined.

Introduction of a higher registration test for claimants seeking the right to negotiate in light of proposed mining activity and commercial and government development on vacant Crown land -- ensuring mining companies and governments will only have to negotiate once with applicants and will deal only with applicants whose native title claims are likely to succeed.

Introduction of State-based regimes for mining and commercial and government development on other non-exclusive tenures. Until State-based regimes are introduced, the statutory right to negotiate will continue to apply. Confirmation of governments' right to regulate and manage surface and subsurface water, living aquatic resources and airspace.

Improvement of management of native title claims incorporating an acceptance test and registration test for applicants and State management of claims. Clarification of native title agreements -- the Act guarantees legal certainty for voluntary agreements about native title.

For more information on the Aboriginal People of Australia, go to:

• Citizenship and its problems
• Colonialization
• Revitalization
• The future
• Aboriginal Culture