The Native Title Act 1998: Essay Answer

Introduction

The indigenous people of Australia are the first inhabitants of it. Since then, they have conveyed unique cultures and perspectives related to their communities and beliefs. The British Colonization impacted them in a way that they were struggling to survive in terms of living, land ownership, access to water and other resources necessary to live, and other native rights. The legislation enforced by the government affected them in both positive and negative ways (Mannix & Hefferan, 2018).

This report is written in the context of the impact of the Native Title Amendment Act of 1998. The position of Australian indigenous people from the beginning and after the European invasion is discussed in detail. Furthermore, the factors of native titles Native Title Act 1993 and the Native Title Amendment Act 1998 are given below. Moreover, the Native Title Amendment Act of 1998 and its impact on Indigenous people are also discussed thoroughly. Next, the difference between the Native Title Act of 1993 and the amendment legislation of 1998, including the effects of the ‘Ten Points Plan’ on the native title rights of indigenous people is given below. In the end, a brief conclusion is given (Burke, 1998)

Discussion

The Position of Indigenous People of Australia

The indigenous people of Australia are considered as the native people of it. They were here before the European invasion. They lived as hunter-gatherers. There was not any kind of land ownership available then so the Europeans believed that the land of Australia was free to claim. It was called terra nullius by them, which means land belonging to no one. After the European colonization, they started to build towns around the east coast of Australia and also wiped out the lands for farming (Tran, Ban, & Bhattacharyya, 2020). They fenced off someplace near the sacred sites of indigenous people. The fences then put barriers to hunting grounds, clean water, and food supplies for indigenous people More indigenous communities were affected by the expansion of British settlements within Australia. Malnourishment and starvation were the causes of death among the indigenous people, and they struggled harder to survive the situation. Before the European invasion, the number of indigenous people was around 750, 000. In the period between 1788 to 1900, it reduced by almost 90 percent (Triggs, 1999). New diseases like, measles, chicken pox, bronchitis, whooping cough, etc. were introduced to the indigenous people by the newly arrived British colonization. The results were terrific for the Aboriginal and Torres Strait Islander people of Australia as they had no precautions available, whereas the Europeans already had their resistance to the diseases. Furthermore, the indigenous people started to have native title-related issues that affected their fundamental rights as old habitats of Australia (Burke P. , 1998).

The native title rights and the Native Title Act of 1993

The term ‘Native Title’ refers to a bunch of rights, such as access to water, the right to hunt, camp, perform the ceremony, hold meetings, and protect cultural sites. It is not necessary to grant all the rights together when the native title claim has been determined. According to the High Court in Western Australia v Ward (2002) 213 CLR 1, native title could be quenched in part or whole. Every individual rights need to be considered individually to identify if any previous acts of government are not staying the same throughout the continued existence of those rights (Davie, 1998). Those acts can quench native title that includes the grant of the construction of public infrastructure like, a road or telephone line, or a freehold lease. Non-indigenous property rights that include, pastoral leases can exist alongside native titles in most cases. This form of native title goes under the division of non-exclusive possession as other people also have rights on the land. These non-exclusive native title rights can be contained with the right to access, camp, and hunt, and the right to control access to or use of an area is excluded here. In other cases, the possession of an area that has abandoned all others is included in exclusive possession native title rights that are often valued similarly to freehold title (Griffiths), and identified in other forms of legislation like, in carbon farming (Nettheim, 1999).

The Australian government passed legislation in 1993, known as the Native Title Act 1993 (Cth) (NTA). This legislation recognizes the interests and rights of Aboriginal and Torres Islander people in water as well as land regarding their customs and traditional laws (McGrath & Lee, 2016). The native title was first identified in Australian legislation while following a claim lodged in the year of 1982 alongside the High Court of Australia by a group of Meriam community that belongs to the Eastern Torres Strait. Before the British Colonization, to recognize the occupation of the Meriam people, including exclusive possession of Murray Island regarding the laws of their customs and laws, were sought by them. Eddie Koiki Mabo was the first name mentioned, followed by Meriam plaintiff Sam Passi, David Passi, Celuia Mapoo Salee, and James Rice. It took 10 years to lodge the claim in the year of 1992. Which the High Court upheld by the Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo) (Howlett & Lawrence, 2019). This includes the acknowledgment of the previously existing native title interests and rights of Murray Island’s Meriam people. The Native Title Act enabled a process to claim and recognize native title that covers the areas of waters and lands in Australia. The main agenda of this act was to maintain the balance between non-indigenous and indigenous people, including their land rights. This also sets out the way native title interests and rights fit into Australian law (Triggs, 1999).

The Native Title Act 1998

Ever since the success of Wik People v State of Queensland and Others (Wik), and Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo), the Australian indigenous people have gained ownership of land that somehow decayed (Strelein, 2005). The pastorals and mining companies that took the lands on lease, were much more averse to the claims regarding native titles after Wik, in the meantime when it was cleared that their leases were not secure under a set of circumstances, which they had no idea about. When the new (Coalition) government under the leadership of John Howard, made clear intentions about the native title. The federal government was elected, and in the meantime, they introduced legislation into the federal parliament. In the year of 1998, John Howard introduced his ‘Ten Point Plan’. This amendment would make it harder to claim native title and take away the negotiation rights of indigenous people over the landforms, that they could claim previously. The Senate was threatened by the federal government to forcefully amend Howard’s ‘Ten Points Plan’ into the act. Thus, the Native Title Amendment Act nullified the rights of indigenous people over native titles to embolden the Territories and States (Strelein, 2005)

The Native Title Amendment Act of 1998 and its Impact on indigenous people

According to the ‘Ten Point Plan’ (th), the power or authority of indigenous people over their land and claims of native title rights. Howard’s ‘Ten Point Plan’ came up with the following points:

• The period of validation of the act was between 1 January 1994 to 23 December 1996. That ultimately indicated that any decision granting exclusively to the Native Title was repealed where the landforms were used with the intention of ‘primary production’.
• Arrangements of the government services that intended if the grant of native title to indigenous people, confined the ability of the government to provide services, that would be eradicated(Nettheim, 1999)
• The decimation of native title on ‘exclusive’ tenures, was confirmed to mean that the government has the power to solely interpret the meaning of ‘exclusive’ utilization.
• The pastoral leases and native title rights upon former or current agricultural leases, and pastoral leases do not fall under the above point, would be demolished permanently to the amount that those rights are anomalous with the pastoralist. Hence the rights of Aboriginal communities became secondary(Dorsett & McVeigh, 2012).
• Mining activities in the future, where the entrance for claimants was remarkably higher on land, which was tangible or reserved with the possibility of mining in the future. Even though the native title was entrenched under the adamant tests, it was quenched in a vast number of cases that had interest in mining.
• Constitutional access rights, where the claimants, registered previously have the ability to demonstrate that they had physical access to the lands that have pastoral leases, this access would be continued under legislative allowance until the determination of the native title claim(Howlett & Lawrence, 2019)
• This point is about commercial development and future government, which had a similar high entrance to the previous one.
• Ponderous claims process, as well as higher registration tests were set out by this point of Management of claims(Smith, 2018).
• The next one is the management of airspace and water resources, which was intended to make clear that even in cases where the native title was able to prove under more rigorous legislation, the government has the authority to control air and water rights.
• It was recommended that there would be agreements as contradictory to the native title formal claim procedure.

The Native Title Act of 1993 and the amendment legislation of 1998 affecting indigenous people

After the enforcement of this Amendment legislation, the ultimate power regarding native titles belonged to the government of Australia, and the principle of the original 1993 Keating Act that was meant to rectify the historical wrongs vanished (McGrath & Lee, 2016). This allows the mining company’s economic interests to get prior while coercing the communities that are rooted in the land. Moreover, the amendment enabled the validation of some illegal mining and pastoral issues between the Wik and Mabo decisions (Dorsett & McVeigh, 2012). According to this amendment, pastoralists could perform activities permitted by their leases regardless of their effects on native titles. Exclusive rights would be granted by few leases, rest would not grant this over the landforms. Indigenous people had rights to access on few lands up until native title claims could be declared. The reduction of the right for negotiation over mining to one chance only. Each stage of mining and exploration could not be negotiated like before (Burke P. , 1998). The issues related to commercial development and government, the right for negotiation was reduced to the right to be ‘consulted’ in some circumstances (Mannix & Hefferan, 2018). All the rights regarding air space and water resources were given to the government extinguished native titles in many cases. The registration of a native title claim became stricter, by this Act, but the procedure became faster. The amendment focused on settling the claims by agreement instead of the courts or tribunals. It outlined that the government did not exceed the Racial Discrimination Act 1976 (Cth).

Related: 1998 Native title amendment Act

Conclusion

After analyzing the report, it has shown that the indigenous people are the old inhabitants of Australia. They have their unique identity and way of living. The European colonization had a terrific impact on their lives. Their native title rights had been snatched from the beginning by the British people and the government. They are struggling hard to survive, and in the process of survival, they lose many lives. The act of 1993 was intended to benefit the indigenous people, whereas the amendment of 1998 legislation made their lives difficult. They faced issues related to the native title rights claims, which were their fundamental rights from the beginning. The indigenous people are in the process of growing with today’s world, but the illegal as well as legal mining and pastoral leases perform activities that affect their native titles. The government also accounted for their condition. The native titles of Australian indigenous communities needed to be reassured (Tran, Ban, & Bhattacharyya, 2020).

References

Burke, P. (1998). Evaluating the Native Title Amendment Act 1998. Austl. Indigenous L, https://heinonline.org/HOL/LandingPage?handle=hein.journals/austindlr3&div=31&id=&page=.

Burke, P. (1998). Evaluating the Native Title Amendment Act 1998. . Austl. Indigenous L, https://heinonline.org/HOL/LandingPage?handle=hein.journals/austindlr3&div=31&id=&page=.

Davie, C. (1998). Native Title Amendment Act 1998: Validation of Invalid Acts; Renewal and as of Right Issue of Mining & Petroleum Tenements; Extinguishment of Native Title Rights and Interests. Australian Mining & Petroleum, https://heinonline.org/HOL/LandingPage?handle=hein.journals/ausreen17&div=27&id=&page=.

Dorsett, S., & McVeigh, S. (2012). Conduct of laws: Native title, responsibility, and some limits of jurisdictional thinking. Melbourne University Law Review, https://www.researchgate.net/profile/Shaun-Mcveigh/publication/256057300_Conduct_of_Laws_Native_Title_Responsibility_and_Some_Limits_of_Jurisdictional_Thinking/links/5a4f13df458515e71b089508/Conduct-of-Laws-Native-Title-Responsibility-and-Some-Limits-of-J.

Howlett, C., & Lawrence, R. (2019). Accumulating minerals and dispossessing Indigenous Australians: native title recognition as settler‐colonialism. Antipode, https://www.researchgate.net/profile/Catherine-Howlett-4/publication/331043363_Accumulating_Minerals_and_Dispossessing_Indigenous_Australians_Native_Title_Recognition_as_Settler-Colonialism/links/5f05276d92851c52d6206969/Accumulating-Minerals-and-Disposse.

Mannix, J., & Hefferan, M. (2018). New dimensions in land tenure-the current status and issues surrounding native title in regional Australia. . Australasian Journal of Regional Studies, https://eprints.qut.edu.au/125644/9/125644.pdf.

McGrath, P. F., & Lee, E. (2016). The fate of Indigenous place-based heritage in the era of native title. The right to protect sites:. Indigenous heritage management in the era of native title,, https://aiatsis.gov.au/sites/default/files/research_pub/the_right_to_protect_sites_indigenous_heritage_management_in_the_era_of_native_title_3.pdf#page=25.

Nettheim, G. (1999). The search for certainty and the Native Title Amendment Act 1998 (CTH). TheUNIVERSITY OF NEW SOUTH WALES LAW JOURNAL,, https://search.informit.org/doi/abs/10.3316/agispt.20000505.

Smith, D. E. (2018). Valuing native title: Aboriginal, statutory and policy discourses about compensation. Canberra, ACT: Centre for Aboriginal Economic Policy Research (CAEPR),. The Australian National University, https://openresearch-repository.anu.edu.au/bitstream/1885/145615/1/2001_DP222.pdf.

Strelein, L. (2005). From mabo to yorta yorta: native title law in Australia. Wash. UJL & Pol'y, https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1381&context=law_journal_law_policy.

Tran, T. C., Ban, N. C., & Bhattacharyya, J. (2020). A review of successes, challenges, and lessons from Indigenous protected and conserved areas. Biological Conservation, https://oursharedseas.com/wp-content/uploads/2020/10/Tran_et_al_2020_A-review-of-successes-challenges-and-lessons-from-Indigenous-protected-and-conserved-areas.pdf.

Triggs, G. (1999). Australia's indigenous peoples and international law: validity of the Native Title Amendment Act 1998 (CTH). . Melbourne University Law Review, https://search.informit.org/doi/abs/10.3316/agis_archive.19994247.

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