Native title

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Native Title is a legal interpretation in Australia that recognizes that Aboriginal people in some cases have ongoing legal title to land that survived the colonization of the land by the British Crown.

The native title can coexist with other non-indigenous property rights, and in some cases multiple Aboriginal tribes can exercise the native title over the same land. It is an example of how property interests can be shared, particularly how two different legal systems can operate in the same geographic, national, and legal territory: common law and custom of the Aborigines.

The National Native Title Tribunal (NNTT) is the organization that investigates claims from Aboriginal and Torres Strait Islanders and arbitrates them with other owners. Judges are given by the Federal Court of Australia by a judge. Appeals against these judgments will go to the Federal Court of Justice before three judges and ultimately appeal to the High Court of Australia .

Collision between two legal systems

The traditional customary law that governed the lives of Aboriginal and Torres Strait islanders prior to British colonization persisted in the lives of many Indigenous Australians despite the social changes brought about by colonization. However, only Australian law based on the English legal system was directly enforced by the courts.

Native Title is a legal interpretation that is not part of common law, but was introduced to enforce recognition of the rights of indigenous Australians to land and water.

Chronology of the events that led to the recognition of the Native Title

1946: Pilbara Strike

On May 1, 1946, an estimated 600 Aboriginal drovers struck in the Pilbara Strike across northern Western Australia and refused to work until they were guaranteed a minimum wage of 30 shillings a week. Some had previously received food and clothing but no payment; others were paid up to 12 shillings a week. Although on the surface it was about better pay, it has strong aspects of a human rights movement as workers demanded to be paid in cash rather than in goods. The strike was organized by Dooley Bin Bin and his friend Don McLeod, who advised him. The organization was a mammoth task as it required communication with the drovers who were spread across the north to Western Australia. The strike lasted until August 1949 and is considered the starting point of the Aboriginal land rights movement.

1963: Yolngu-Bark petition

The Yolngu , an Aboriginal tribe in the northeast of Arnhem Land, have been able to maintain a strong bond with their traditional land, culture and law (Madayin) as the area is a long way from white Australia. In 1963, the Menzies government decided to give parts of this land to a bauxite mining company for the mining of bauxite. The Yolngu in Yirrkala sent the so-called Yolngu Bark Petition on tree bark to the Australian House of Representatives to protest against it. The petition received national and international attention and is now hanging in Parliament House in Canberra as a reminder of the role of the Yolngu in the birth of the land rights movement.

1966: Wave Hill Walk-Off

Three years later, 200 Gurindji drovers went on strike and left Wave Hill Cattle Station. Led by Vincent Lingiari , they demanded the same wages and conditions as the white farm workers, since until then they had only received a low wage or in kind. The nine-year strike resulted in a successful claim for the return of their traditional land.

1971: Gove Land Rights Case

When the Yolngu realized that their petition was not being taken seriously by Canberra politicians, they took their complaints to court in 1971. In Milirrpum's legal battle against Nabalco Pty Ltd, the Yolgnu lost this legal case because Australian courts were bound by the Terra Nullius Principle, which recognizes no “prior rights”. However, the judge recognized that the prosecutors had an established legal system and a traditional use of that land.

1976: Aboriginal Land Rights Act

All of these cases led to the establishment of the Aboriginal Land Rights Commission , a royal commission to investigate land rights in the Northern Territory from 1973 to 1974. As a result of this investigation, the government of Malcolm Fraser enacted the Aboriginal Land Rights (Northern Territory) Act 1976 , after it had previously been drafted by the government of Gough Whitlam in 1975. This law laid the foundation for Aboriginal people to be able to claim land rights based on their traditional habitation for the first time.

1981: Pitjantjatjara Lands Act

The Pitjantjatjara Lands Act 1981 of South Australia formed the basis for the transfer of land to the Pitjantjatjara . These had maintained an ongoing connection with their traditional land. As a result of this Land Act , the Anangu Pitjantjatjara Yankunytjatjara Local Administrative Region was established.

1992: Mabo v. Queensland (No. 2)

In the judgment of Trial No. 2 by Eddie Mabo against the state of Queensland from 1992, the concept of Terra Nullius was rejected by the High Court of Australia and the Murray Island in the Torres Strait was added to the Torres Strait islanders. Judge Brennan said in his judgment: "The native title has its origin and its justification through the traditional laws and customs that the indigenous inhabitants of an area obey and recognize."

1993: Native Title Act

The recognition of the legal concept of a Native Title with the Mabo judgment led to the legislature putting the Native Title Act into effect a year later under the government of Paul Keating . This attempted to clarify the rights of landowners and to enforce the process for claiming the native title: The claim to land rights of the Aborigines is independent of the native title, and the native title is not the same as land rights. Land rights are a new legal right that must be "created and granted" under Australian law. In a land right claim, Indigenous Australians can claim the Commonwealth of Land, state or territory. Traditional interests of a country can be upheld and legal property and land can be handed over to the indigenous tribes.

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