It’s time to understand the difference between Native Title and Land Rights.

Native Title is not land rights. 

Native Title is the European property law being applied to ancient concepts of belonging to Country with a clear and skewed application to protect colonising forces. It is not the returning of Country to First Nations people who were dispossessed and lay witness to the devastation of colonisation on this now wounded country. We have seen ecosystems collapse and be irreversibly altered to prioritise industries that contribute to the climate crisis we now face at devastating levels. 

Land rights are what our ancestors have fought for, what our Elders and all generations since have marched in protest for. Our #alwayswasalwayswillbe comes from us asserting the truth of this country and the stories of the land. The pursuit of land rights is not materialism, it is responsibility in practice–our stories, our connection and cultural responsibility requires us to protect Country. We want the right to do this.

We see our people rally, mobilise and staunchly rail against continued destruction of Country–the fight against Santos, the fight against Rio Tinto, the other fight against Santos, the fight against all of the governments that enable the destruction and countless other fights we are having. Spread so thin, and yet, our people continue to fight, as it’s intrinsic to culture and our very existence. These fights we see happening today originated from the staunch examples we have seen from mob around this country, starting formally with the Yirrkala bark petitions.

Yirrkala Bark Petitions

In 1952 large deposits of bauxite were found by the Australian Aluminium Production Commission in Melville Bay, north of Yirrkala.Following this, the Aboriginal Reserves in the Northern Territory were determined to have commercial value and as a result, the government altered legislation to allow entry onto these reserves for miners and prospectors and later granted leases to this land to mining companies. This was all done without consultation or communication with the Yolgnu people. Images via AIATSIS

The Yolgnu people from Yirrkala in north-east Arnhem Land presented the Australian Parliament with a bark petition. Written in both Yolngu Matha and English, the Yirrkala Bark Petitions protested against the removal of land for these mines. This land being the place that Aboriginal people of Yirrkala lived, hunted and maintained connections to sites of significance for thousands of years–living in balance with Country and duty bound to protect it. 

This was the first formal engagement with the colonial power structures to assert land rights.

Gove Land Rights Case

In 1971, it was the Yolgnu people again who brought further action in respect of asserting their land rights in the Milirrpum v Nabalco Pty Ltd land rights case, commonly known as the Gove Land Rights case. In this case,  the Northern Territory Supreme Court–presided over by Justice Blackburn–rejected a claim by the Yolgnu people that the mine was illegal due to lack of consent.  The court held that beneficial title was acquired by the Crown along with radical title, and that native title had only been recognised in statutory executive action.

Put simply, while it made statements acknowledging the Yolgnu people’s ongoing relationship with the land and their complex system of laws to govern the land, they affirmed that Australia was a ‘settled’ colony and asserted the European concepts of property law to the decision. Effectively, because Aboriginal people did not have the same European concept of ‘ownership’ the European leases prevailed. This precedent was in place until the Mabo case.

Wave Hill Walk Off

The next significant moment in the land rights timeline was the 1966 Wave Hill Walk Off. Led by Gurindji man Vincent Lingiari, this walk off was a strike against the reprehensible working conditions but also about the fact that the land they were working on was, in fact, the land of his people and should be returned. This struggle continued for six years and in 1972, Gough Whitlam ‘gave back’ the land to Lingiari and his people, in what is a now an infamous image.

Image via AIATSIS

Woodward Commission

Interestingly, it was also the Whitlam-Labor Government that instigated an enquiry into Aboriginal land rights–also known as the Woodward Commission–following the failure of the Gove land rights case. Chaired by Justice Woodward, the Royal Commission was established in 1973 to find an appropriate way to recognise the traditional rights and interests of Aboriginal people in and to the land. 

The Woodward Commission produced two reports that recommended significant reform, including legislation to restore Aboriginal ownership of land. That recommendation eventually led the Fraser Liberal government to pass the Aboriginal Land Rights Northern Territory) Act 1976 (Cth).

This was a pivotal moment in the fight for land rights because it was the first piece of law that recognised First Nations people’ continuing right to Country. This law, although momentous, did provide the recognition in a European property law lens by providing for the creation of Aboriginal land trusts to hold title to Aboriginal land 

The Australian Government started purchasing privately owned land for the benefit of Indigenous communities and allow certain Crown land to be made available for claim. The Aboriginal Land Rights (Northern Territory) Act 1976 has resulted in almost 50 per cent of the Northern Territory being returned to Aboriginal peoples.

Some state governments followed the lead of the Australian Government and introduced their own land rights legislation but did so, for the most part, with considerable limitations on their ability to make claims and what land could be claimed.  

Mabo

In 1982, a group of Meriam people brought an action against the State of Queensland in the High Court of Australia with Eddie Koiki Mabo named as the first plaintiff. We call this the Mabo case.

This case was significant not only for the fact that it overturned the Gove land rights case, but that it ruled out terra nullius as a part of the Australian common law. The very doctrine that was weaponised against Aboriginal people by the colonising forces, not to use the law, but in fact to avoid adhering to it. 

In fact, under English law at the time of the claim upon this country, there were three legal regimes under which a colony “could be acquired”:

1. Settlement — where territory was uninhabited and the ‘settlers’ brought English law with them;
2. Conquest —  where territory was inhabited and the native laws survived, provided they weren’t discordant with laws of the crown; or
3. Cession — where the territory was inhabited and the sovereignty was ceded to the Crown, and the applicable law would be determined by agreement, but in the absence of any agreed changes, local law would continue to apply.

The way this country was colonised was in breach of the law and, in avoiding actual legal analysis of this by judicial authorities, it prevailed that Australia was terra nullius and that Australia was acquired through settlement. 

The Mabo case was pivotal in going further than the comments of Justice Blackburn in the Gove land rights case and outright excluding terra nullius from common law as Justice Brennan J stated:

‘Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the Indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people.’

It was also the highest legal precedent on this continent confirming ongoing and continuing land rights in a way never before decided at law.

Native Title Act

Following the Mabo case, there was an uproar of non-Indigenous people outraged and fearful of ‘their’ land being taken back and legal scholars attempting to understand what this meant legally. This ‘uncertainty’ prompted a legislative response. By the end of 1993 the Native Title Act 1993 (Cth) was passed by the Keating-led government.

The Native Title Act sought to achieve four main objectives:

1. To provide for the recognition and protection of native title.
2. To establish ways in which future dealings affecting native title may proceed and to set standards for those dealings.
3. To establish a mechanism for determining claims to native title.
4. To provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.

This of course provided some additional uncertainty in the Northern Territory in respect of whether the Aboriginal Land Rights (Northern Territory) Act 1976 or the Native Title Act 1993 (Cth) prevailed. Ultimately, the intent was for both acts to operate concurrently  in the Northern Territory in a manner that recognised the rights of native title holders who were not able to obtain the benefits of the Aboriginal Land Rights (Northern Territory) Act 1976 , without eroding the ability of Traditional Owners to protect their lands under the state based law.

Wik Peoples v The State of Queensland

The next significant legal moment in land rights was three years after the Native Title Act was passed, in the Wik Peoples v The State of Queensland case in which, on 23 December 1996, a majority judgment was handed down that pastoral leases should not extinguish native title rights. 

This was not legally significant, despite the significant moral victory for the Wik Peoples, it simply clarified a point of law that the legislation did not. It did, however, become significant political fodder for Howard and his ilk to play performative politics seeking to ‘protect land owners’ – clearly not Indigenous peoples.

Howard then announced the Wik 10 point plan which undermined the nature of the native title legislation enacted under the Keating government. Although imperfect, the intent of the Keating enacted native title legislation was to confer a benefit, whereas the Howard 10 point plan cut across this and acted more as a sanction or tool to extinguish.

Native Title System – A racist system that preferences mining

Which brings us to Native Title and why this is not land rights. Notwithstanding the original intent of the Keating government, it still was seeking to force colonial legal concepts across the prevailing cultural authorities and governance that pre-existed colonisation. The fact that this legislative ‘answer’ to case law is what First Nations people are pointed to as land rights is both insulting and upsetting when the practice within the native title system speaks to the truth of its application.

Tony McAvoy, Wirdi man and our first Indigenous Silk–who has advocated for communities for years –says that the native title system ‘embeds racism’ and flies in the face of the United Nations Declaration on the Rights of Indigenous Peoples which demands land not be dispossessed with “free, prior and informed consent”.

The native title system allows objections to mining activities and those objections are always overruled. This means that if Aboriginal people object to mining operations on their country, they are precluded from negotiating things like royalties or compensation when the mine ultimately goes ahead. The entrenched racism is rife in the native title system and it is a mechanism for further disenfranchisement.

At every turn, we see First Nations’ resistance to mining and other destructive industries on Country. We have seen a massive alignment with non-Indigenous allies like Sydney Knitting Nannas and 350.org who see land rights as climate action as having land in the hands of First Nations’ will ensure that Country is preserved and protected against the industries who are the greatest contributors to emissions impacting the climate.

Regardless of this continued resistance, the government decisions continue to favour these industries that not only take the resources outside of the country but the profits too–all at the expense of our people and Country. The government and decision makers within ministerial portfolios often say that their decisions balance the economic interests of the country with the interests of Indigenous people, but that is simply not the case and even their own reports prove what we know.

In a secret report, commissioned by the Morrison government but never released, concludes that Traditional Owners from the Beetaloo Basin in the NT are unlikely to make economic, social, cultural or other gains from fracking plans for the region, explaining that “conditions are currently not conducive to strong agreements being negotiated,” contradicting claims by the gas industry that jobs and economic benefits will flow to communities.

Nurrdalinji Native Title Aboriginal Corporation, which represents Traditional Owners from the Beetaloo Basin, forced release of the report under FOI. Report and executive summary here.

So it’s clear that the government’s own commissioned reports agree that, practically, Native Title is not land rights.