The non-discriminatory protection of native title is a recognised human right. The objectives of the Commissioner are to provide and promote a human rights perspective on native title; assist in developing more efficient native title processes; and to advocate for the co-existence between Indigenous and non-Indigenous interests in land based on compatible land use. The Australian Government, along with many other nations, have acknowledged the importance of promoting and protecting human rights standards by ratifying international instruments including the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. These instruments are relevant to native title because they protect property against arbitrary and discriminatory interference and acknowledge rights to freedom of religion and culture.
Issues Paper Connection and recognition concepts in native title law Integral to native title is the concept of recognition of Aboriginal and Torres Strait Islander laws and customs by which means connection to land and waters is established.
Connection requirements for the recognition and scope of native title in this sense comprise a shorthand reference to a complex of statutory provisions in the Native Title Act principally s and s ; and associated case law, policy and practices, such as connection reports.
The definition of native title in the Native Title Act Section of the Native Title Act defines the native title rights and interests that are the subject of a determination of native title under s of the Act.
Section has been the subject of extensive judicial interpretation. As interpreted by the Court, native title claimants must address a number of requirements to satisfy s Justice Mansfield of the Federal Court has summarised these in the following way: A threshold requirement is that the evidence shows that there is a recognisable group or society that presently recognises and observes traditional laws and customs in the Determination area.
In defining that group or society, the following must also be addressed: The claimants must show that they still possess rights and interests under the traditional laws acknowledged and the traditional customs observed by them, and that those laws and customs give them a connection to the land.
While s sets out the manner in which native title rights and interests claimed can be established: It is a necessary condition of their inclusion in a determination that the rights and interests are recognised by the common law of Australia.
That condition flows from s 1 c. However, while native title was held to burden the radical title of the Crown, native title rights and interests do not have their source in the common law. Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law.
The High Court in Commonwealth v Yarmirr stated: The concept of radical title provides an explanation in legal theory of how the two concepts of sovereignty over land and existing native title rights and interests co-exist.
The idea of two systems has significance for determining continuity of native title from the pre-sovereign period time. In this manner, native title is the product of an intersection of two systems of law. The native title rights and interests which are the subject of this Act are those which existed at sovereignty, survived that fundamental change in regime, and now, by resort to the processes of the new legal order, can be enforced and protected.
The relationship that Aboriginal and Torres Strait Islander people have with land and waters through their laws and customs, however, still remains even without recognition by the Australian legal system. Extinguishment is the obverse of recognition.
It does not mean that native title rights and interests are extinguished for the purposes of the traditional laws acknowledged and customs observed by the native title holders. By way of example apposite to this case, the plurality pointed out in Yanner v Eaton that to tell a group of Aboriginal people that they may not hunt or fish without a permit: The things of which they speak constitute the subjects of the common law of native title.
The common law establishes the judge-made rules for determining whether native title rights and interests exist. These are the rules of recognition.
A native title determination can occur either as a result of litigation involving a contested hearing or it can be made by consent of the parties involved.
In general terms, connection requirements relating to the recognition and scope of native title rights and interests, working in conjunction with authorisation and joinder provisions, raise issues involving: What is necessary, as a matter of law and fact, to establish a native title claim?
Meriam people’s title to the Murray Islands, and that a system of Native Title had been established, against the Queensland Coast Islands Declatory Act (), which attempted to extinguish Native Titles. Essay on Native Title Law Reform Australia the most famous native title claims in Australian history. This case was the first in Australian history to successfully overturn Terra Nullius and essentially led to the creation of the Native Title Act (Cth) (‘The Act’). Terra nullius means land. Recognition of Aboriginal law, native title and possession of the land at the time of settlement has come to fruition through legal cases such as Mabo () and Wik () and the establishment of the Native Title Act () and the amended Native Title Act ().
What is the scope nature and content of the native title rights and interests that are determined? Who may bring a claim application for determination of native title?
Who may contest an application for a determination of native title? Scope of native title rights and interests The scope of native title is often referred to as the nature and content of native title.
As native title rights and interests have their source in Aboriginal or Torres Strait Islander laws and customs, the specific native title rights and interests asserted will be grounded in fact and vary between claims.
Identifying the traditional laws and customs of the claimant group is significant not only to determine the rights and interests concerned, but thereby to establish connection to land and waters under s 1 b. The scope of native title and native title rights and interests is determined on the basis of the factual material that provides evidence of traditional laws and customs.
A determination of native title sets out the specific native title rights and interests that are recognised in a particular area that is claimed.
An order for a determination of native title must cover a set of designated elements under s of the Native Title Act. If native title is established, there is a determination of a who the persons, or each group of persons, holding the common or group rights comprising the native title are; and b the nature and extent of the native title rights and interests in relation to the determination area; and c the nature and extent of any other interests in relation to the determination area; and d the relationship between the rights and interests in paragraphs b and c ; and e whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
Examining connection requirements for native title Many concerns have been raised about how the law around connection requirements for the recognition and scope of native title is formulated and how it has evolved.Native Title is not Land Rights: Gary Foley The Native Title Act In , the International Year of Indigenous Peoples, the Federal Government enacted legislation to create a mechanism to administer native title claims in the post-Mabo era.
But, as this essay has shown, to defend native title is to defend the fait accompli of the.
Native Title Act (Cth) accepts and confirms the Mabo decision, in particular the fundamental propositions on which the decision rested, namely to provides for the recognition and protection of native title rights based on the traditions of the indigenous people of Australia, and the rejection of the myth that Australia was terra nullius (land belonging to no-one).3/5(1).
Meriam people’s title to the Murray Islands, and that a system of Native Title had been established, against the Queensland Coast Islands Declatory Act (), which attempted to extinguish Native Titles. The Native Title Act should be amended to reduce the benefit of member of the applicant at the expenses of the common law holders of Native title.
Joinder provisions It is major that a request which specifically influences a third person’s rights or liabilities ought not to be made unless the individual is . Recognition of Aboriginal law, native title and possession of the land at the time of settlement has come to fruition through legal cases such as Mabo () and Wik () and the establishment of the Native Title Act () and the amended Native Title Act ().
The Court noted that: A determination of Native title must consent to the necessities of s Specifically, it must express the nature and degree of the local title rights in connection to the determination zone.