Land and Rights
Aboriginal and Torres Strait Islander peoples are together the traditional owners of all land and waters in Australia (known as ‘country’). Different parts of country are the homelands of different Indigenous communities and individuals, the descendants of the first peoples.
The importance of country to Indigenous people has long been misunderstood by non-Indigenous people. Country is central to the spiritual, economic, social, and political wellbeing of Indigenous people and is the basis of culture, heritage and identity. Non-recognition and protection of country by Australian jurisdiction is at the heart of the suffering and disadvantage felt by Indigenous people.
Maps of Indigenous Australia ->
Recognition of traditional owners
The struggle for the recognition of land rights began with the onset of colonialism in 1788 and continues today, despite over two hundred years of dispossession and displacement. Time and time again, Indigenous people have called upon governments, industries and the wider community to recognise their distinct status as the traditional landowners of Australia.
Indigenous people never gave up their inherent rights and interests in land when Australia was settled in 1788 and achieving land justice is the most fundamental aspect of unfinished business. The right to manage traditional lands is an important base for overcoming other forms of disadvantage and oppression.
ANTaR has plaques for sale to recognise traditional owners à
Australia was settled on the basis of terra nullius (“land belonging to no one”). International law in 1788 held that sovereignty could only be acquired through conquest, cession, or occupation of territory that was uninhabited. In the case of conquest or cession, the colonising nation was legally obliged to negotiate full and just compensation to the indigenous population for lands alienated.
Declaring the land terra nullius (uninhabited) removed the need to negotiate with the indigenous people. The colonisers justified their land acquisition policies by claiming that the Aboriginal people were too primitive to be actual owners and sovereigns, and that they had no readily identifiable hierarchy or political order that was recognizable to the British Government in order to negotiate.
Of course, this appalling oversight could not have been more wrong and regrettably became the basis for much wrongdoing and a history of colonial abuse in Australia (see Interventions). The extent of this was not properly recognised until the High Court rulings of important native title cases in history such as Mabo vs. Queensland and Wik vs.Queensland. In his ruling in support of native title in the Mabo case, Chief Justice Brennan stated, "The fiction by which the rights and interests of indigenous inhabitants of land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country."
Native Title is the recognition by Australian Law that Indigenous people continue to hold rights to their lands and waters, based on a system of traditional laws and customs that preceded settlement by Europeans. It is a variety of property rights that recognizes the continued relationship between land and Indigenous people.
Native Title rights may include the right to live on the land; access the area for traditional usage including camping or ceremonial purposes; hunt, fish, and gather food, water, or traditional resources; visit, protect culturally significant places and be involved in decision making on that country.
It can exist on vacant crown lands; some national parks and public reserves; some pastoral leases; lakes, rivers, creeks, and other waters that are not privately owned.
Native Title has been extinguished on land that is privately owned; land covered by residential, commercial and certain other leases; areas undertaken by the Government for public works, such as schools and roads. It is important to note that Native Title is different to legal ownership of the land, and therefore when an Aboriginal or Torres Strait Islander group is given Native Title recognition, it is not necessarily land justice.
Native Title Services Victoria ->
National Native Title Tribunal ->
Some important Native Title cases in history
Bung Yarnda- Lake Tyers (1970)
The Lake Tyers Mission was first set up in 1861 on Gunai land (in Gippsland) as a reserve for the accommodation of Aboriginal people who had been forcibly removed (link to Interventions) from their families and homelands. It was part of the British settler government’s policy of the ‘Protection of Aborigines’ and became home to Indigenous people from all over Victoria. Unique to Lake Tyers Mission was that there was some freedom and independence for its Indigenous residents. However, the government seized control back from residents in 1908 and from the 1950s began to force people out of the reserve and into local towns to find employment. The Bung Yarnda people fought to retain management of the land and control was handed over to the Lake Tyers Aboriginal Trust in 1970 under the newly established Aboriginal Lands Act. This was the first land rights case won by Indigenous people in Australia.
Unfortunately, recent decisions by the Victorian government have meant that Lake Tyers is again under the control of an outside administrator. Although this was initially meant as a temporary measure, Lake Tyers remains under state control and governance is becoming less and less consultative. ANTaR Victoria has responded, questioning the government’s repeated renewal of the administrator’s term, the arbitrariness of requirements for the community to regain control and its lack of transparency regarding the process of handing back Lake Tyers to the community.
‘Lake Tyers Blockade’, Clare Land, ANTaR Victoria Committee Member ->
Mabo and Others v. Queensland (1982-1992)
Eddie Mabo became an unexpected public figure when he led the native title claim of the Meriam (Murray Islander) people through a ten-year legal battle against the state of Queensland, from 1982 to 1992. They sought for their homelands in the Torres Strait to be recognised as Indigenous land, as they had been annexed from Queensland in 1879.
Mabo v. Queensland No 1 (1988) resolved that the Queensland Government were not able to extinguish native title rights, as they were attempting to do through the Queensland Coast Islands Declaratory Act. The High Court declared that the Coast Islands Act was inconsistent with the Racial Discrimination Act stating that if it passed, the Meriam people’s human rights would be impaired.
This made way for the Mabo v Queensland No. 2 case, whereby Mabo and Others sought recognition that Indigenous people had continuously inhabited and maintained their culture on the Murray Islands, and that they therefore had rights to that land. In the conclusion of this case, the High Court overturned terra nullius, thereby recognising native title in common law. This was a landmark decision in Australia’s history.
Wik Peoples v. Queensland (1996)
The 1996 decision in the Wik case upheld the fundamental principles of Mabo, that Indigenous people have a right to land in Australia. More importantly, the decision introduced the notion that native title could co-exist with other interests such as pastoral leases. The native title rights of the Wik and Thayorre peoples had not been extinguished by the Queensland government's grant of pastoral leases and could therefore co-exist with the rights of the pastoralist to the extent of any inconsistency.
Yorta Yorta (2002)
In the case of the Yorta Yorta Aboriginal Community vs. Victoria, the claim to native title was dismissed by Federal Court and then rejected by the High Court. It was justified that native title could not exist as the claimants had ceased to occupy their native lands and therefore, 'the tide of history has indeed washed away any real acknowledgement of their traditional laws and any real observance of their traditional customs.'
The Indigenous and Victorian community responded to this decision with disappointment, anger and disbelief at what this may mean for future native title claims, because so many communities were displaced from their homelands upon British settlement.
Debunking the myths
Myth 1: My property can be taken away because of Native Title.
Truth 1: Native Title is not a land grab. It can exist where traditional connection to the land has been maintained and where Government acts have not removed it. Native Title cannot invalidate anybody else’s rights, including private ownership of home, holding a pastoral lease, or a mining license.
Myth 2: Because of Native Title I could be banned from visiting national parks.
Truth 2: You can still visit your favourite national parks because Native Title co-exists with all other rights.
Myth 3: If my land isn’t going to be taken away and I can still visit the national parks that I like, then Native Title does not affect me.
Truth 3: Native Title and Land Justice are paramount to achieving reconciliation and an improved relationship between Indigenous and non-Indigenous Australia. Many Indigenous scholars and leaders have acknowledged the significance of land to Indigenous culture and social well-being, and the importance of Land Justice for reconciliation. Native Title is essential to reconciliation with Indigenous Australians, an important and necessary step towards a fair and just Australia.