Native Title: background and issues

In 1992, after over 200 years of denying the existence of Indigenous customary rights to land, the historic High Court Mabo decision established recognition in the Australian legal system of the existence of continuing Indigenous systems of land ownership or "native title". The downside for Indigenous people was that Mabo also suggested that native title had been extinguished over large areas of Australia by Crown grants of freehold and possibly other tenures.

Nevertheless, Mabo required that the Commonwealth address the question of native title rights, particularly where these may be found to coexist with certain non-indigenous land tenures. The Keating Labor Government entered into negotiations with indigenous leaders and other affected stakeholders to find a legislative solution. These negotiations resulted in the Native Title Act 1993.

In 1996, the High Court's Wik decision confirmed that native title rights could coexist with pastoral and other leasehold tenures. The Howard Coalition Government responded to Wik in alarmist terms, characterising it, not as a victory for coexistence and sharing the land, but as a "crisis in land management". Amendments to the Native Title Act were eventually passed in 1998, despite strong opposition from indigenous and many non-indigenous Australians.

The 1998 amendments have resulted in the further, unjustified extinguishment of native title and the winding back of significant Indigenous rights established through the negotiations over the original Native Title Act.

The 1998 amendments were referred to the United Nations Committee for the Elimination of Racial Discrimination (CERD) and found to be in breach of Australia's international human rights obligations.

A discriminatory aspect of the Commonwealth's approach to native title which has received comparatively little consideration is the ongoing extinguishment of native title caused as a result of the deliberately inadequate resources provided to indigenous bodies charged with protecting native title.

Meanwhile, a number of important recent High Court and Federal Court decisions on native title claims continue to clarify the legal status of native title, particularly with respect to the issue of extinguishment.

The 3rd June 2002 was the 10 year anniversary of the Mabo decision.

Further information:
Mabo - 10 Years on
Mabo and Wik
The 1998 Native Title Act Amendments
Native title laws fail United Nations scrutiny
Back door extinguishment
Recent native title cases