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Mabo: ten years on

Mabo: Ten Years On

E-Brief: Online Only issued 23 May 2002

Coral Dow, Information/E-links
Social Policy Group

3 June 2002 marks the tenth anniversary of the High Court decision in Mabo v Queensland (No 2). The decision upheld the claims of five plaintiffs from Murray Island (Mer) that Australia was occupied by Aboriginal and Torres Strait Islander peoples who had their own laws and customs, and whose 'native title' to land survived the Crown's annexation. Thus the court recognised the existence of native title as part of Australian common law.

The judgment necessitated new policies, legislation, and public administration procedures. A wide ranging public and academic debate on native title issues has also ensued and a number of significant court judgments handed down. This paper chronicles some of these key events and reports.

In a recent issue of Talking Native Title the President of the National Native Title Tribunal, Graeme Neate, summarised the progress since recognition of native title:

For some people, the first decade of the legal recognition of native title in Australia may have passed relatively quickly. But those who have been involved in a policy or practical way for part or all of that period will recall the long debates, negotiations and struggles—some of which have led to positive outcomes.

The high profile stories have included:

Court decisions in important cases such as Mabo (No2), the Wik case, and Yarmirr (the sea rights case);

the enactment and amendment of the Native Title Act;

the determinations that native title exists in various parts of Australia – 23 by agreement between the parties, seven after trials in the Federal Court; and

some major exploration and mining agreements with Aboriginal communities.

Much other significant, if less publicised, activity has taken place as people have found ways to resolve a wide variety of native title issues in different parts of Australia.

The community generally, and key sectors within it, have come to accept and even embrace the recognition of native title. Looking ahead, one might expect that the next 10 years would produce more outcomes and greater certainty.

Progress is being made in identifying where native title exists and who the native title holders are. The processes for resolving native title issues – whether by agreement, arbitration or litigation – are being refined. As more parties become experienced in the processes, the way for agreement making should be easier.

Some legal issues have to be decided. At the date of writing, the High Court had not delivered its judgment in the important Miriuwung Gajerrong case (Western Australia v Ward) which is expected to clarify the law on important issues such as the nature of native title and what extinguishes native title.

Later this year the High Court is scheduled to hear the Yorta Yorta People's appeal. The judgment in that case should give guidance on the extent to which native title might be recognised in the areas of eastern and southern Australia most affected by European colonisation.(Source: Graeme Neate, 'From the President', Talking Native Title, issue 2, March 2002, p. 2.)

Graeme Neate has also spoken on the challenges ahead, now that native title is 'part of the legal and social fabric of Australia'. His summary of the National Native Title Tribunal's Native Title Forum 2001: Negotiating Country, canvases some of the outstanding issues which:

Need to be considered in the current climate of opinion. That is different from when the Native Title Act commenced to operate. There is widespread acceptance that native title exists – that it is part of the legal and social fabric of Australia. The issues are not whether native title should be recognised, or whether there should be wholesale extinguishment at the stroke of a legislator's pen, but what are the best practical ways of dealing with a range of native title issues. (See Review of Conference: Emerging Issues and Future Directions in Land, Rights, Laws: Issues of Native Title, vol. 2, no.10, October 2001.)

Chronology

Milestones	Details
28–30 August 1981	Townsville Treaty Conference at James Cook University discussed strategies for bringing about a definitive High Court decision on land rights. Koiki (Eddie) Mabo (1937–92), then living in Townsville, spoke at the conference about land rights in the Torres Strait. Papers and discussion from the conference were published in E. Olbrei (ed.), Black Australians: the prospects for change, 1982.
20 May 1982	Eddie Mabo, Dave Passi and James Rice brought an action against the State of Queensland and the Commonwealth claiming 'native title' to the Murray Islands.
1985	In an attempt to pre-empt the case, the Queensland Parliament passes the Queensland Coast Islands Declaratory Act extinguishing retrospectively the Islanders' claimed rights to the Murray Islands.
27 February 1986	Constitutional validity of the Queensland Coast Islands Declaratory Act 1985 challenged in the High Court.
December 1988	High Court in Mabo v. Queensland (No. 1) (1988) 166 CLR 186 finds Queensland Coast Islands Declaratory Act invalid because it is inconsistent with the Racial Discrimination Act 1975 (Cth). As a result the original Mabo proceedings could continue.
21 January 1992	Edward Koiki Mabo died in Brisbane.
3 June 1992	High Court in Mabo And Others v. Queensland (No. 2) (1992) 175 CLR1 recognises native title is part of Australian land law. Native title continues in cases where Indigenous people have an on-going connection with their traditional lands as determined by their own laws and customs, and an act of the Crown has not extinguished these rights. Further information: Analysis of the Mabo decision by Australian Government Solicitor. A summary of the public debate following the decision can be found in the Parliamentary Library Background Paper The Mabo Debate: A Chronology, vol. 23, 1993.
19 December 1993	Parliament enacts the Native Title Act 1993. It addresses the consequences of recognising native title for past actions by governments and sets up rules for future dealings in native title land and waters. The legislation followed lengthy debate and negotiations between Indigenous stakeholders, governments, pastoralists and the mining industry. Further information: Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report January–June 1994.
January 1994	Native Title Act (NTA) commences operation, National Native Title Tribunal (NNTT) established and Native Title Representative Bodies (NTRBs) recognised in law. Further information: Native Title Facts, a series of fact sheets about native title in Australia as it is administered under the Native Title Act 1993; Short guide to native title.
March 1995	High Court in Western Australia v. Commonwealth rejects Western Australia's constitutional challenge to the Native Title Act and invalidates Western Australian Government's attempt to enact legislation that offered less protection of Indigenous rights.
1995	Indigenous Land Corporation (ILC) and the Aboriginal and Torres Strait Islander Land Fund established. The ILC's main functions are to assist Indigenous peoples in Australia to acquire land and to manage indigenous-held land in a sustainable way to provide cultural, social, economic or environmental benefits for themselves and for future generations.
1996	The first resolution of a native title claim for mainland Australia involving the Dunghutti people of Crescent Head and the New South Wales government.
December 1996	High Court decides in Wik Peoples v Queensland that native title is not necessarily extinguished by the grant of a pastoral lease and that native title can co-exist with other interests in land. Further information: Wik: the aftermath and implications, articles from the University of NSW Law Journal; The Wik Peoples v the State of Queensland, analysis by the Australian Government Solicitor.
8 May 1997	Howard Government releases Amended Wik ten point plan foreshadowing major amendments to the NTA (Department of the Prime Minister and Cabinet).
1997	Australians for Native Title and Reconciliation (ANTaR), a coalition of non-government organisations and concerned citizens, formed.
6–8 July 1998	After two long parliamentary debates in late 1997 and early 1998, 293 amendments and a compromise agreement between the government and Senator Brian Harradine, the Native Title Amendment Act 1998 is passed. The Act makes substantial changes to the future act regime, the registration test, the validation provisions, the relative roles of the Federal Court and the NNTT, the statutory regulation of NTRBs and the law on Indigenous Land Use Agreements (ILUAs). Further information: ATSIC, Detailed Analysis of the Native Title Amendment Act.
6 July 1998	A Federal Court judge in Yarmirr v Northern Territory [1998] 771 FCA finds that native title exists over the entire area of sea and sea-bed claimed in the Croker Island case. However the rights granted were 'non-exclusive' and 'non-commercial' and the decision was appealed.
10 September 1998	High Court confirms that the grant of freehold extinguishes native title in Fejo v Northern Territory. Further information: Lisa Strelein, 'Extinguishment and the Nature of Native Title, Fejo v Northern Territory', Land, Rights, Laws: Issues of Native Title, no. 27, February 1999.
September 1998	The National Native Title Tribunal's first national audit of native title agreements reveals that over the previous five years more than 1200 agreements had been struck between Indigenous groups and miners, pastoralists, industry bodies and governments.
24 November 1998	Justice Lee, of the Federal Court, in the Miriuwung Gajerrong judgment upholds a native title claim to 7900 square kilometres of the east Kimberley region, Western Australia, and across the border into the Northern Territory. The judgment was notable for the broad scope of the native title rights confirmed.
18 December 1998	Justice Olney, of the Federal Court, in Yorta Yorta v Victoria [1998] judgment determines that native title did not exist over Crown land and water in the claim area along the Murray River in New South Wales/Victoria. He said the 'tide of history' had washed away the Yorta Yorta's traditional laws and customs and thus any claim to recognition of native title.
18 March 1999	The United Nation's Committee on the Elimination of All Forms of Racial Discrimination (CERD), which monitors compliance with the Convention on the Elimination of All Forms of Racial Discrimination (CERD), expresses concern about several key amendments to the Native Title Act in its Decision 2(54) on Australia. Further information: Australia. Parliament. Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund, Consistency of the Native Title Amendment Act 1998 with Australia's international obligations under the Convention on the Elimination of all Forms of Racial Discrimination (CERD).
July 1999	Australian Government rejects CERD Committee's March 1999 decision claiming 'there is no breach of the Convention by the Native Title Act'.
August 1999	The CERD Committee, in Decision 2(55) on Australia, reaffirms the findings of its March decision.
August 1999	Northern Territory's alternative right to negotiate procedures, enacted under Northern Territory law and approved by the Commonwealth Minister, are disallowed by the Senate under disallowance powers given to both Houses of Parliament in the Native Title Act. Once disallowance occurs the provisions of the Native Title Act re-apply.
7 October 1999	High Court decision Yanner v Eaton finds that statutory vesting in Queensland of property in fauna did not extinguish native title rights to take crocodiles for traditional purposes. Further information: High Court upholds bush tucker rights, Analysis of Yanner v Eaton (Parliamentary Library Research Note no. 11, 1999).
3 December 1999	Commonwealth appeal against Croker Island native title claim dismissed by the full Federal Court in Commonwealth v Yarmirr [1999] FCA 1668. In the same case, the claimant group also loses its appeal on question of recognising their exclusive rights off shore.
February 2000	New South Wales's alternative procedures for opal mining at Lightning Ridge under section 26C of the NTA commence operation after surviving Senate scrutiny.
September 2000	Queensland's alternative procedures under section 26A (low impact exploration) and section 43 of the Native Title Act commence operation after meeting Senate approval. Procedures under section 26B and section 43A were disallowed by the Senate under disallowance powers given to both Houses of Parliament in the Native Title Act.
November 2000	Senate disallows Western Australia's proposed alternative right to negotiate scheme under section 43A of the Native Title Act.
December 2000	New South Wales's alternative procedures for low-impact exploration under section 26A of the Native Title Act commence operation after surviving Senate scrutiny.
March 2001	High Court reserves its decision in Miriuwung Gajerrong test case, a case expected to clarify strength of native title and the law on extinguishment of native title. Further information: Gary D Meyers, 'The Content of Native Title: Questions for the Miriuwung Gajerrong Appeal', Land, Rights, Laws: Issues of Native Title, vol. 2, no. 7, November 2000.
11 April 2001	Full Federal Court in Lardil v Queensland confirms serious flaws in the protection offered by future act regime to registered native title claimants.
11 October 2001	High Court in Commonwealth v Yarmirr [2001] HCA 56 (Croker Island case) finds native title to exist over the entire area of sea and sea-bed which was claimed. The decision confirms that the common law can recognise native title offshore but rejects applicants' claim to exclusive rights. Further information: AIATSIS Native Title Research Unit, Sea Rights Resource Page: The Croker Island Decision and Native Title Offshore.
14 December 2001	High Court grants claimants in Yorta Yorta case special leave to appeal against Federal Court decision that the 'tide of history' has washed away their traditional connection and native title rights.
8 February 2002	Federal Court, in Central Queensland Land Council Aboriginal Corporation v Attorney-General (Cth) and Qld, finds Commonwealth approval of Queensland alternative procedures under section 43 of the Native Title Act invalid. Rejects challenges to alternative right to negotiate procedures approved under section 26A of the Native Title Act.
30 April 2002	Eddie Mabo's widow, Bonita Mabo, calls for a national public holiday on the anniversary of the High Court's decision. (AAP 30 April 2002.)

State of Play

Between 3 June 1992—the date of the first determination of native title in the Mabo case by the High Court of Australia—and 13 May 2002, there were 40 native title determinations, that native title does or does not exist, made by a court decision. The determination process is often long and difficult. Most native title claimant applications are made with the aim of gaining formal recognition of native title through a determination.

Statistics on Indigenous Land Use Agreements (ILUAs), determinations, agreements and Future Act Determinations can be found on the National Native Title Tribunal's 10 Years of Native Title Information Kit.

Many other different types of agreements between Indigenous people and other people with rights and interests in land and waters may be made without involving a Court determination of native title. Some of these agreements are commercial in confidence and an accurate figure of such agreements is unavailable, although it was estimated at more than 1200 in 1998. See media reports of land use agreements in 1997 and 1998. In May 2002 the number of these general native title process agreements, the majority of which are future act agreements in relation to mining, had risen to over 3000 (Commonwealth Budget Paper, Indigenous Affairs 2002-2003, 14 May 2002.)

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