Aboriginal people and Torres Strait Islanders occupied Australia for at least 40,000 to 60,000 before the first British colony was established in Australia.
They spoke their own languages and had their own laws and customs. Those laws and customs were characterised by a strong spiritual connection to 'country'.
Traditional laws and customs cover things like:
· caring for the natural environment and for places of significance
· performing ceremonies and rituals
· collecting food by hunting, fishing and gathering
· providing education and passing on law and custom through stories, art, song and dance.
The British claimed sovereignty over part of Australia in 1788 and established a colony. In 1889, the British courts applied the doctrine of terra nullius to Australia, finding that it a territory that was ‘practically unoccupied’. In 1979, the High Court of Australia did the same, saying that Australia was a territory which, ‘by European standards, had no civilised inhabitants or settled law’. It was thought that, in these circumstances, the common law doctrine of native title did not apply to Australia.
In 1992, nearly 200 years after the arrival of the British, the High Court of Australia made an historic decision. In Mabo (No 2), the Court decided that the doctrine of terra nullius should not have been applied to Australia and that the common law of Australia would recognise native title.
Native Title Act 1993
The landmark Mabo (No 2) decision led to the Australian Parliament passing the Native Title Act 1993 (Cwlth).
Native title rights and interests
Native title is the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs.
The native title rights and interests held by particular Indigenous people will depend on both their traditional laws and customs and what interests are held by others in the area concerned. Generally speaking, native title must give way to the rights held by others. The capacity of Australian law to recognise the rights and interests held under traditional law and custom will also be a factor.
Native title rights and interests may include rights to:
· live on the area
· access the area for traditional purposes, like camping or to do ceremonies
· visit and protect important places and sites
· hunt, fish and gather food or traditional resources like water, wood and ochre
· teach law and custom on country.
In some cases, native title includes the right to possess and occupy an area to the exclusion of all others (often called ‘exclusive possession’). This includes the right to control access to, and use of, the area concerned. However, this right can only be recognised over certain parts of Australia, such as unallocated or vacant Crown land and some areas already held by, or for, Indigenous Australians.
Native title rights and interests differ from Indigenous land rights in that the source of land rights is a grant of title from government. The source of native title rights and interests is the system of traditional laws and customs of the native title holders themselves.
Native Title Act 1993 (Cwlth) Section 223
Common law rights and interests
(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.