LAWS3112 Lecture 4

Ownership and Title to Real Property

Native Title

Aboriginal Lands in Australia Today

  • Approximately 20% of the land mass of Australia is held by Indigenous peoples.

(i) Land Rights Schemes

  • Schemes for the transfer of land to Aboriginal peoples.
    • Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
    • Aboriginal Land Rights Act 1991 and the Torres Strait Islander Land Act 1991 (Qld).
    • Permitted Aboriginal peoples to claim traditional lands in certain circumstances
  • Tenure granted to Indigenous land holders is generally an inalienable fee simple.

(ii) Native Title

  • Mabo v State of Queensland (No. 2) (1992) 175 CLR 1.
  • Native Title Act 1993 (Cth)

Native Title in Australia

1. Mabo (No. 2) and the NTA.
2. The concept of native title

  • What is meant by native title?

3. Proof of native title

  • How can a claim for native title be claimed?

4. Extinguishment of native title

  • Where does native title exist in Australia?

5. The ‘future dealings regime’ under the NTA.

  • How can native title lands be dealt with today?

Mabo and the Native Title Act 1993 (Cth)

Milirrpum v Nabalco (1971)

  • The Gove Land Rights Case.
  • The doctrine of native title did not form part of the law of Australia.
    • Doctrine of Settlement.
    • Doctrine of Tenure.
  • Political Response to Milirrpum’s Case: Statutory Land Rights
  • This decision has been overruled by Mabo (No. 2)

Mabo v Queensland (No. 2) (1992) 175 CLR 1.

  • The High Court of Australia found in a 6:1 decision:
    • Native title, being the rights of the indigenous inhabitants, in accordance with their laws and customs, is recognized by the common law of Australia.
    • The Murray Islanders were entitled, as against the whole world, to the occupation, use and enjoyment of the lands of the Murray Islands (except for the operation of Crown leases and certain land set aside for administrative purposes).
    • The title of the Murray Islanders was stated to be subject to the Queensland government's power to validly extinguish that title.
    • Any extinguishment would be subject to the Racial Discrimination Act 1975.

Native Title Act 1993 (Cth)

  • Why did the commonwealth government choose to enact this legislation?
  • Issue of invalidity of title in Australia

Racial Discrimination Act 1975 (Cth)

  • Sections 9 and 10 provide in effect that if Aboriginal people are deprived of certain rights by discriminatory laws then those rights are not lost.
  • Section 9 of the Act makes it unlawful for a person to do any act involving a distinction based on race which has the effect of impairing the enjoyment of any “human right or fundamental freedom”.
  • Section 10 provides that where by reason of any law persons of a particular race do not enjoy a right to the same extent as persons of another race, then by force of that section the first mentioned persons enjoy that right to the same extent.

Native Title Act 1993 (Cth)

  • Objectives - a comprehensive regime:
    • The recognition of native title.
    • s 10 native title is no longer a defeasible interest.
      • s 223 native title is comprehensively defined.
    • The establishment of a means for determining native title
      • National Native Title Tribunal – a role in the mediation of claims and in relation to the RTN provisions ss 86A and 86B.
      • Federal Court determines claims for native title ss 13(1), 61.
    • The validation of “past acts” if they were invalidated because of the existence of native title.
      • //Division of Past Acts (s228) and Intermediate Acts into categories with consequences for validation (s15).
    • The regulation of future dealings affecting native title land.
      • The right to negotiate regime.
      • Indigenous Land Use Agreements.

Challenge to the validity of the Commonwealth NTA.

  • Western Australia v The Commonwealth (1994) 183 CLR 373 ('Native Title Act Case').
  • High Court held Commonwealth NTA was valid.

The Concept of Native Title in Australia

What is native title?

  • Mabo v Queensland (1992) 175 CLR 1.
    • “The common law of this country recognises a form of native title which, in cases where it has not been extinguished, reflects the entitlements of the indigenous inhabitants, in accordance with their laws and customs, to their traditional lands.”

Source of Native Title

  • The common law does not create native title - the common law recognises native title.
  • Native title in Australia is sourced in the “traditional laws and customs” of the Aboriginal peoples.

Does the source of the native title make a real difference to the content of native title?

In looking at content of native title the question is:

  • Should each native title right asserted be independently proved as a customary or traditional practice, or
  • Does a possessory native title confer an unencumbered right to occupy and use the land and its resources?

Nature and Content of Native Title

(a) Native Title Rights

  • Brennan J in Mabo: “Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a mater of fact by reference to those laws and customs”.

Section 223 Native Title Act 1993

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognized by the common law of Australia.

(2) Without limiting subsection (1), rights and interests in that subsection include hunting, gathering, fishing, rights and interests.

  • Note the similarities between the words of Brennan J in Mabo and the wording of the NTA.
  • However, Western Australia v Ward [2002]. The High Court finds that the definition of native title is contained in the NTA. The High Court does acknowledge that the language of the NTA is the language of Brennan J in Mabo.
  • Early native title cases suggested that as the common law changes so will the definition of native title.
  • Traditional laws and customs that are repugnant to Australian law may not be given recognition.

Ward v Western Australia (2002) 213 CLR 1

  • Did not follow the Canadian interpretation of Aboriginal title in Delgamuukw 1997 i.e. The High Court in Ward did NOT find that native title is a possessory title equivalent to a fee simple title.
  • Did find that the definition of native title is contained in the Native Title Act 1993 (Cth).
  • Native title in Australia is based on traditions and customs of the particular community.
  • Native title is a bundle of rights. Thus native title will vary from group to group and place to place depending on the traditional customs of the group. (This has implications for extinguishment.)
  • Recognised that native title is essentially a spiritual relationship with the land. How does this relationship translate into legal concepts that the common law will recognise?

Does native title include ownership of minerals & resources?

  • Ward: Native Title does not include mineral rights.
  • Resource legislation: Ownership of minerals is vested in the Crown by statute.
  • Ward: Suggests that State resource legislation extinguishes native title rights.
  • Yanner v Eaton (1999) 159 ALR 483: What is property?
    • The use of the term “property” merely conferred a regime forbidding the taking and keeping of property. It did not confer an actual property right of the Crown in the fauna. Therefore the Aboriginal right to hunt and fish was not extinguished.

Communal Title

  • Rights are communal rights enjoyed by the whole community.
  • Individual rights to land which are derived from the community laws and which are dependent on the community title may exist, provided that such titles are consistent with, and recognised by the traditional laws and customs.
  • How to identify the “community”.
  • Three criteria (Federal Court):
  1. Biological descent,
  2. Self-identification; and
  3. Community recognition or communal identification.

Status of Native Title

(a) Type of interest: sui generis

  • Is native title an interest in the land?
  • Is native title a property right?
    • legal right.
    • a usufructuary right of user.
  • sui generis (the only one of its kind or peculiar to itself).

(b) Enforcement of native title interest

  • a legal right
  • protected by appropriate legal and equitable remedies
  • no constitutional protection.

Transferability of Title

  • Native title is generally an inalienable interest in land.
  • Native title can be surrendered to the Crown.
  • Section 56 of the Native Title Act 1993 (Cth) provides that:
    • Native title rights and interests held by the body corporate are not able to be assigned, seized or sold or made subject to any charge or interest as a result of any debt or liability of, or any act done by the body corporate unless that debt was incurred in connection with dealings authorised by the Commonwealth Act or Regulations.

Holders of Native Title

  • Native title holders can:
    • Vest title in the common law holders themselves, that is a prescribed body corporate (non-trustee), or
    • Vest native title in a prescribed body corporate acting as trustee for the common law holders.

Section 211 NTA

  • Preservation of certain native title rights and interests.
    • This section allows native title holders to continue the pursuit of their traditional activities despite regulatory laws prohibiting or restricting such activities.
    • Except where legislation confers rights and interests only on, or for the benefit of, the Aboriginal community.
    • Yanner v Eaton.

Offshore Native Title

Commonwealth of Australia v Yarmirr (2001)

  • Majority HC (Gleeson CJ, Gaudron, Gummow, and Hayne JJ) found:
    • Native title can exist off-shore.
    • The common law of Australia does extend to adjacent sea areas to enable the recognition of native title.
    • That the Native Title Act applied to waters that were subject to Australian jurisdiction.
    • However, no exclusive native title rights nor exclusive control of the claimed area was recognised.
    • Fundamental inconsistency between native title rights and the common law public rights of navigation and fishing.

Yarmirr

  • The Aboriginal claimants were entitled to:
    • Hunt, fish and gather for domestic and non-commercial purposes offshore, and to
    • Have access the sea and sea bed for these purposes and other purposes including travel, and visiting, and protecting and safeguarding places of spiritual and cultural importance.
  • Native title offshore rights did not include:
    • Exclusive rights.
    • Commercial rights to the seas or sea resources.
    • Which means that Aboriginal peoples have no rights to control fishing, mining or tourism ventures in the sea areas.

Native Title Summary

  • Mabo v State of Queensland (No. 2) (1992) 175 CLR 1.
    • Native title is recognised by the common law.
    • Native title is defined in s 223 NTA.
    • Native title is a collective and communal title.
      • Communities can recognise individual title
    • Native title, once determined, is to be held and managed by a body corporate.
    • The nature of native title varies widely. It can amount to an exclusive possession interest in land.
    • Native title is inalienable except by surrender to the Crown.
    • The Crown has the right to extinguish title.
    • Native title in Australia does not include minerals.

Consider the Differences in Western notions of property and Indigenous notions of property

  • In Australia - a dual property regime in relation to land exists: Indigenous property rights (Native title) and Western property rights.
  • Key differences in notions of the property rights include the following:
  1. Indigenous title is inalienable except to the Crown. Indigenous title cannot be sold or traded privately nor can it be mortgaged.
  2. Indigenous title is liable to extinguishment by Crown/government action.
  3. Indigenous tenure is generally a communal title or collective right.

Proof of Native Title In Australia

When will native title be recognised in Australia?

  • Where the elements of proof are satisfied under the Native Title Act 1993 (Cth), and
  • Where native title has not besen extinguished or otherwise is not recognisable by the common law.
  • Section 223 Native Title Act 1993 (Cth) requires proof of a connection with the traditional land or waters in accordance with the laws and customs of the Aboriginal group.

Section 223 Native Title Act 1993

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.

Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422

  • Key Issue: What evidence of a traditional connection and observance of traditional laws and customs is necessary to establish a native title claim?
  • Majority: Gleeson CJ, Gummow, Hayne, McHugh& Callinan JJ:
    • High Court found that no native title rights existed in the Yorta Yorta claim as the claimants had failed to fulfill the requirements of proof under s 223 NTA.
    • There had been an interruption in the continuity of acknowledgment and observance of traditional law and custom.

1. The High Court refused to interfere with the trial Judge’s determination.

  • The evidence was sufficient to support the trial judge’s finding.
  • The Aboriginal society had ceased to uphold their traditional system of law and custom on which their rights and interests in the claim area were based.
  • The “interruption” to the traditional practices meant loss of native title.

2. Emphasised the importance of the NTA.

  • Consideration of a native title claim begins with the NTA.
  • Native title is not a creature of the common law.
  • Native title is what is defined and described in the NTA.
  • Mabo (No. 2) decided that certain rights and interests survived the Crown’s acquisition of sovereignty. It is this native title that is “recognised, and protected” in accordance with the Native Title Act.
  • Section 223 (1) (a) is the relevant section for considering the issues of proof, rather than s 223 (1) (c).

3. Native title is based in a system of laws or rules that pre-dates sovereignty.

  • The only rights or interests that will be recognised as native title rights and interests after the date of the assertion of sovereignty are those that find their origin in pre-sovereignty law and custom.
  • The “normative system” (i.e. a system of laws or rules) from which the native title arises must be that of the society that existed at the time the Crown asserted sovereignty over the claim area not a normative system based in some latter different society.

4. Continuity of acknowledgment and observance of traditions and customs is required – a continuing, vital system required.

  • Section 223(1)(a) refers to the rights and interests in land or waters being possessed under traditional laws acknowledged and traditional customs observed by the indigenous peoples.
  • Section 223(1)(a) requires:
    • A system of laws and customs that has had a continuous existence and vitality since sovereignty.
  • If the system ceases to operate for any period then the rights and interests that owe their existence to that system will cease to exist.

5. Changes in Laws and Customs.

  • To what extent can native title laws and customs change over time?
    • The High Court rejected the view that native title rights and interests must be frozen in time if they are to remain sufficiently “traditional” in character. The High Court emphasised that traditional laws and customs and the native title rights they support, may change and adapt over time, in response to the considerable pressure of European colonization of traditional lands.
    • Some change to traditional law or custom between the assertion of sovereignty and the present will not be fatal to a native title claim.

6. Interruption of use and enjoyment.

  • Laws and customs are traditional only if acknowledgment and observance has continued substantially uninterrupted since sovereignty.
  • Any interruption to the use and enjoyment would mean that traditional laws and customs had not been transmitted from generation to generation. This is so even where the laws and customs accepted by a “new society” of indigenous peoples are similar to those of an earlier and different society of their ancestors.

Yorta Yorta Conclusion

  • The High Court found that:
    • The claimant’s forebears had ceased to occupy their lands in accordance with traditional laws and customs.
    • There was no evidence that the claimants continued to acknowledge and observe the traditional laws and customs.
    • The Court found that there has been an interruption in the continuity of acknowledgment and observance of traditional law and custom.
    • Therefore the Yorta Yorta failed to have native title recognised.
    • Note that this conclusion was not about changes in law and custom over time. It was about the interruption of observance of traditional laws and customs

To prove native title it is necessary to establish the following:

1. A traditional connection with the land.

  • Native title rights and interests must have the characteristic that, by the traditional laws acknowledged and the traditional customs observed by the relevant peoples, those peoples have a connection to the “land or waters claimed” (s223 (1) (b)). (See Ward.)
  • This requires
    • (a) An identification of the content of the relevant traditional laws and customs.
    • (b) An assessment of whether by those laws and customs the claimants possess a connection to the claim area.
  • The Connection must exist pre-sovereignty.
  • The Connection must continue substantially uninterrupted from the date of the acquisition of British sovereignty.
  • Connection must still exist.

2. Native title must be possessed under the traditional laws acknowledged and the traditional customs observed by the claimant group: (s223 (1) (a)). (See Ward and Yorta Yorta.)

  • Claimants must prove that:
    • (a) The laws and customs that the claimants currently observe, and which they rely upon to support the claimed native title rights and interests, are substantially the same as those that were observed by their ancestors at the time the Crown asserted sovereignty over the claim area. (The only rights recognized are those that find their origin in pro-sovereignty laws and customs.)
    • (b) The acknowledgment and observance of those laws and customs by members of the claimant society has continued substantially uninterrupted since the date of the acquisition of sovereignty by the Crown.
  • Re traditional laws and customs:
    • The traditional laws and customs must exist pre-sovereignty.
    • The observance of the traditional laws and customs must continue substantially uninterrupted from the date of the acquisition of British sovereignty. This requires continuity in the observance of the traditional laws and customs and it requires that the laws and customs must be substantially the same as those observed by their ancestors.
    • The traditional laws and customs must still be observed and acknowledged in the present day.

4. The existence of an identifiable group, community or normative society that has continued to exist from pre-British sovereignty times.

  • The normative system, that is the system of laws and customs, must be that of a society that existed at the time the Crown asserted sovereignty. The laws and customs cannot be those of a later and different society.
  • Failure to establish this will mean a severance of the communal connection with the land
  • Re Society:
    • The society must exist pre-sovereignty.
    • The society must continue substantially uninterrupted from the date of the acquisition of British sovereignty.
    • The society must exist today.

5. That native title has not been extinguished or is otherwise not recognised by the common law.

  • Native title rights and interests must be “recognised” by the common law of Australia (s223(1) (c)).
  • The onus of proof rests with the applicants.

Registration of Native Title Claims

  • Native Title Act requires a physical connection with the land to be registered on the Register of Native Title Claims: (s 190B(7)).
  • Exception "stolen generation/locked gates clause” (s190B(7) (b), 190D) - where a parent was removed from his or her traditional country.
  • Registration (as a registered claimant) allows:
    • Access to the “right to negotiate”.
    • Procedural rights, including the right to enter into certain indigenous land use agreements.
  • If registration is not sought, only a native title determination, then the physical connection test does not have to be met.

Extinguishment of Native Title

Where does native title exist in Australia today?

  • Where native title has not been extinguished.

What is Extinguishment?

  • Permanent termination of native title (Fejo and Ward).
  • Native title is liable to extinguishment or impairment by government action (see Mabo).

What constitutional restrictions or other limitations exist on government's powers of extinguishment of native title?

  • No constitutional protection is afforded to Australian Aboriginal rights.
  • However, restrictions do exist on Australian governments’ powers of extinguishment.

Extinguishment is subject to:

  • State and Territory laws being consistent with valid Commonwealth laws.
  • S109 Constitution would render State or Territory legislation invalid in the event of inconsistency.
  • Inconsistency would include inconsistency with the Racial Discrimination Act 1975 (Cth) and also the Native Title Act 1993 (Cth).
    • RDA s10.
    • NTA s 11.
  • s51 (xxxi) of the Commonwealth Constitution requires that Commonwealth laws regarding the acquisition of property should provide just terms compensation.

Who/Which body has power to extinguish native title?

  • Commonwealth Constitution: Commonwealth government has concurrent jurisdiction re Aboriginal affairs – 1967.
  • Jurisdiction over Aboriginal lands is not vested solely in the Commonwealth it remains with the States.
  • State powers to deal with Aboriginal lands have not been removed by the Australian Constitution.

Extinguishment at common law

  • Native Title is liable to extinguishment or impairment by government action. (See Mabo.)

Statutory Extinguishment

  • Native title can be extinguished by legislation.
  • Test - the legislation must show a “clear and plain intention” to extinguish. (Mabo and Wik.)
  • Legislation that merely regulates the enjoyment of native title rights, for example extensive legislative controls on fishing, will NOT extinguish native title (Yanner).

Non-Statutory Extinguishment

  • Native title can also be extinguished by non-statutory executive action. (For example, inconsistent Crown grants authorised by legislation, such as the vesting of an estate in fee simple could extinguish native title.)
  • Test
    • “Inconsistency of incidents” between the grant and native title rights is the standard by which extinguishment will be assessed.
    • Approved by the High Court in Western Australia v Ward. See Wik - executive action must show a “clear and plain intention”.

Wik v State of Queensland (1996) 187 CLR 1

  • Extinguishment to the extent of necessary inconsistency.
  • Extinguishment by inconsistent grant.
    • Non-exclusive possession interests do not necessary extinguish native title. (Non-exclusive possession interests include statutory “pastoral or agricultural leases”. )
    • Native title can co-exist with a “non-exclusive possession interest” granted by the Crown.
    • However, where inconsistency exists between the native title rights and the rights conferred by a non-exclusive possession interests then the native title rights must yield, to that extent, to the rights of the pastoral tenant.
    • Inconsistency is the inability of native title to co-exist with the interest granted.

WA v WARD: test of extinguishment

  • Extinguishment is by the “inconsistency of incidents” test.
  • An objective inquiry requires identification of and comparison between two sets of rights.
    • An assessment as to whether the rights granted to the third party were “inconsistent” with the continued existence of the native title rights.
  • Inquiry is about inconsistency of rights, not inconsistency of use.
    • Rejected Justice Brennan’s reference to extinguishment through inconsistent Crown use of the land in Mabo.
  • Only where “inconsistency” occurs between the statutory interest granted and the native title rights will extinguishment occur.

Examples of Extinguishment by the Crown

  1. Fee Simple (Mabo and Fejo)
  2. Common law exclusive possession leases (Wilson v Anderson 2002 HCA)
  3. Partial extinguishment by non-exclusive possession interests
  • Post-Wik: No necessary extinguishment by non-exclusive pastoral and agricultural lease: Co-existence.
  • Post-Ward: No necessary extinguishment by mining leases: Co-existence.
    • Power to control access to the land or to be asked for permission to use or have access to land will be extinguished on the grant of mining or pastoral leases.
    • Any exclusive native title rights will be extinguished.

Examples of extinguishment by actions by native title holders

  1. Surrender to crown
  2. Loss of connection with land
  3. Ceasing to acknolwedge traditional laws and customs
  4. Interruption in acknowledgement of and observance of traditional laws and customs (Yorta)
  5. Death of last member of group or clan

Extinguishment and revival

  • Fejo and Mabo
    • Once native title is extinguished it cannot revive.
    • Facts and Law can be at odds here.
  • Ward
    • The temporary suspension of native title rights is not possible at common law.
    • Statutory exceptions in NTA.

Extinguishment under Native Title Act 1993 (Cth)

  • Consider extinguishment under several different time frames and several different categories of “acts”.

Extinguishment and Validation

  • "Past acts"
  • “Intermediate period acts”
  • “Regimes”
    • Why was it necessary to validate “acts”?
    • NTA validated Commonwealth “acts” that may be invalid because of the native title. (ss 13, 14, 15 NTA.)
    • State legislation validates State “acts”.
    • Validation can result in extinguishment or suspension of native title.

Validation of "Past Acts" 1975 - 1994 (Div 2, ss 15, 228 NTA)

(i) What is a “past act”? (s 228 NTA)
(ii) What is the effect of validation of a “past act”?

  • The effect of validation is set out below in Categories A-D.
  • This is subject to the “confirmation of extinguishment” provisions of the NTA.

1. Category A: (ss15(1), 229)

  • Total extinguishment of native title.
    • Freehold and Certain Leases:
    • Commercial, Agricultural, Pastoral, Residential
    • Certain Public Works.

2. Category B: (ss15, 229)

  • Extinguish to the extent of Inconsistency.
  • Leases not in "A" or "C”.

3. Category C: (ss15, 230)

  • Non-Extinguishment Principle applies.
  • Mining Leases.

4. Category D: (ss15, 231,232)

  • Non-Extinguishment Principle applies.
  • All other "acts”.

Validation of "Intermediate period acts" 1994 –1996 DIV 2A, ss 21, 232A.

  • 1998 NTA Amendment Act
  • Acts or grants made in this period are validated in accordance with Categories A-D above.
    • Exception: Pastoral and Agricultural Leaseholds now in Category B.
  • Validation will occur only where the grant area was subject to:
    • A freehold grant; or
    • A leasehold grant; or
    • Where public works were involved. (s 21)

Confirmation of Extinguishment Regime

  • “Deemed Extinguishment”
    • Deals with extinguishment occurring prior to 23 Dec 1996.
    • Introduced with the 1998 amendment NTA.
    • See Part 2 Div2B ss 98, 23A, 23B, 23C, 23G, 23JA.

“Previous Exclusive Possession Acts” ('PEPAs') ss23A, 23B, 23C.

  • Totally extinguish native title
  • PEPAs defined to include:
    • Valid or validated acts
      • (valid pre-1975 acts, “past acts and “intermediate period acts”).
    • Acts occurring prior 23 December 1996.
      • Scheduled Interest 249C.
      • Freehold title.
      • Exclusive leasehold.
      • Public works 247A, 248A.

“Previous Non-Exclusive Possession Acts” PNEPAs ss23A, 23F, 23G.

  • Extinguish native title to the extent of inconsistency.
  • PNEPAs defined to include:
    • Valid or validated acts (valid pre-1975 acts, “past acts and “intermediate period acts”).
    • Acts occuring prior to 23 December 1996.
    • Non-Exclusive Pastoral and Agricultural “Leases”.

“Future” extinguishment, future dealings regime, post 1994

  • Non-extinguishment principle applies s 238.
  • Extinguishment can occur:
  1. By future acts after an unopposed non-claimant application ss 24fa-fe.
  2. By agreed extinguishment with native title holders eg. ILUA.
  3. By compulsory acquisition - ss24md.
  4. By confirmation of extinguishment provisions (until 23 December 1996).
  5. By actions by native title holders themselves (Mabo).

Not Examinable

Future dealings regime

  • the nta instituted a new regime to govern future dealings with native title rights and interests after the nta came into force.

“Future Acts”

  • future acts include:
    • New titles granted after 1.1.1994 and new legislation passed after 1.7.1993.
    • Which impact or affect native title in some way.
  • Future acts do not include:
    • Past acts or intermediate period acts.

New rights for future dealings

Freehold equivalence status of native title

  • Native title holders are entitled to same procedural rights as holders of ordinary title.
    • Future acts will pass the freehold test if such acts can be done over freehold
  • Acts that pass the freehold test include:
    • Compulsory acquisitions, and
  • Grants of mining interests.

Right to negotiate

  • Allows native title claimants to have some control over future developments on their lands.
  • The right to negotiate process must be complied with prior to the government authorising or undertaking certain future acts.

Indigenous land use agreements

  • Exclude right to negotiate provisions;
  • Validate acts done pursuant to the ILUA upon registration of the ILUA;
  • Terms of an ILUA take precedence over other provisions in the NTA re: validity of future acts.

Australian Native Title Timeline

Date Case/Legislation
1971 Milirrpum v Nabalco
1975 Racial Discrimination Act
1988 Mabo v Queensland (No. 1)
1992 Mabo v Queensland(No 2)
1994 Native Title Act 1993 (Cth)
1994 Western Australia v Cth
1996 Wik v Queensland
1997-8 10 Point Plan/ NTA Amended
1998 Fejo v Northern Territory
1999 Yanner v Eaton
2002 Western Australia v Ward
2002 Yorta Yorta v Victoria
2008 Bodney v Bennell ('Noongar')
2008 NT v Arnhem Land Trust ('Blue Mud Bay')