Recent native title cases

Although now enshrined in the common law and statutes of Australia, the nature and incidence of native title and the principles determining its relationship to non-Indigenous titles remain largely undefined. Its shape is gradually emerging through native title cases put before the Federal and High Courts.

Ward (Mirriuwung-Gajerrong)

On 8 August 2002 the High Court handed down its judgement on the native title claim of the Mirriuwung-Gajerrong people (Western Australia v Ward & Ors). The case began in 1994 and covers an area of about 8000 square kilometres in the East Kimberley and Northern Territory, including pastoral, agricultural and mining tenures.

Anderson (Western Division Leases)

In NSW, the NSW Farmers' Federation opposed a native title claim over traditional land under a grazing lease near Lightning Ridge, arguing that the grant of a Western Lands Lease automatically gave exclusive possession and necessarily extinguished native title. The issue was finally settled in 2002 by the High Court which ruled that native title had been extinguished by the leases.

Yorta Yorta Case

The Yorta Yorta failed before Justice Olney to establish their continuing connection with their traditional country comprising 1,860 sq kms of land and waters around Barmah on the Murray River. Justice Olney decided that the 'tide of history' had washed away the Yorta Yorta's traditional laws and customs and thus any claim to recognition of native title. A High Court appeal was heard on 23 -25 May 2002 and a decision delivered on 12 December 2002, finding against the Yorta Yortal. The Yorta Yorta are preparing to lodge a complaint with the United Nations, claiming the High Court's rejection of their native title bid denied them their inherent cultural rights.

Croker Island Case

The first native title claim to sea country was decided by Justice Olney in 1998. He found that native title could exist over territorial seas extending to the twelve nautical miles zone. The Commonwealth appealed to the Full Federal Court against that aspect of the judgement, but the Court upheld Jutice Olney's decision.

Justice Olney also found that native title fishing rights were proved, but that they coexisted with the public right to fish. The native title holders appealed against this aspect of Olney's judgment, but the Full Federal Court again (by majority) upheld Olney's decision. An appeal to the High Court by both sides was heard in 2001. The Court upheld the existence of native title over the sea and sea-bed, confirming that the common law can recognise native title offshore, but rejected the applicants' claim to exclusive rights. [further information - AIATSIS Native Title Unit]

Effects of the cases

The three High Court test cases on native title decided in 2002 – Ward (Miriuwung Gajerrong), Anderson (the NSW Western Division pastoral leases) and Yorta Yorta - wiped out the chance of native title recognition for many Indigenous groups.

Others push on, squeezed on all sides by the Howard Government’s 1998 amendments, a very conservative High Court and the inadequate resources allocated to native title representative bodies, which fight cases on behalf of traditional owners.

However, opportunities for progress emerge here and there.

Many agreements are being made providing access to land for minerals exploration and other commercial uses, with agreed conditions including heritage protection, and there have been major mining and pastoral agreements in Qld, the NT, WA and SA.

These agreements can also provide a small share in the benefits derived from developments on native title country but bargaining power is largely pre-set by the law as determined by the High Court and Australian parliaments.

Sometimes agreements actually settle the land rights of Indigenous groups eg, the Miriuwung Gajerrong claim which was finally resolved after 10 years in December 2003.

State governments, however, continue to resist most claims but even then some Indigenous groups are winning in contested litigation. The recent Wanjina decision involved exclusive rights over some country though more often success in the courts yields non-exclusive rights, as with the recent sea claim by four groups in the Gulf of Carpentaria.

For those still inside the system, expensive litigation offers little joy with hope resting in the emerging culture of agreement making.

There is much value in governments and industry moving beyond legal technicalities and establishing long term relationships, by agreement, with Indigenous peoples for recognition of inherent rights and for a better future for all.

However, if native title cannot address this agenda for the hundreds of groups still within the system what hope for them and for the aspirations of people locked out of the system altogether?

The second decade since Mabo will be a testing time for all involved.

Further information:

For more info on agreements and determinations visit the National Native Title Tribunal website

See also under "Native Title" in Library & Links