Land rights for Aboriginal and Torres Strait Islander peoples refers to the ongoing struggle to gain legal and moral recognition of ownership of lands and waters they called home prior to colonisation of Australia in 1788. Aboriginal and Torres Strait Islander peoples’ laws and customs and ways of knowing and being in the world are intimately connected to the land and waters. Connection to land is therefore essential to the continued cultural survival of Indigenous Australians as well as their economic and social development.
Yirrkala bark petitions
The modern land rights movement dates back to 1963 when the Yolgnu people from the settlement Yirrkala in north-east Arnhem Land (Northern Territory) presented the Australian Parliament with a bark petition, commonly known as the Yirrkala bark petitions, protesting to have their land and their rights returned.
Then in 1971, the Yolgnu people again petitioned the Government in the case of Milirrpum v Nabalco Pty Ltd, commonly known as the Gove land rights case; this time about mining activity taking place on their land without their consent. The Northern Territory Supreme Court acknowledged the Yolgnu people’s ongoing relationship with the land and the complex system of laws used by the people to govern the land, but lost the case because the Australian courts were still bound by discriminatory legal principles that denied Indigenous peoples had laws and rights in relation to land.
Wave Hill walk off
During this era the Wave Hill walk off also took place. In August 1966, Vincent Lingiari, of the Gurindji tribe, led his people to strike for better working and pay conditions on a cattle station owned by a British pastoral company in the Northern Territory. The strike soon grew to be about more than working conditions with Lingiari insisting the land they were working on was the land of his people and demanded it be returned.
After years of struggle and lobbying, Lingiari was famously given back his land back by Prime Minister of Australia, Gough Whitlam in 1972. Following the failure of the Gove Lands Rights case, the Whitlam Labor Government instigated an inquiry into Aboriginal land rights (known as the Woodward Commission), which eventually led to the Fraser Liberal government passing the Aboriginal Land Rights (Northern Territory) Act 1976.
The Australian Government started purchasing privately owned land from the early 1970s. The purchases were made to benefit 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 Northern Territory land being returned to Aboriginal peoples.
Some State governments followed the lead of the Australian Government and introduced their own land rights legislation. But there were significant limitations on the lands that were returned or could be claimed.
After decades of Aboriginal and Torres Strait Islander peoples struggling to find a foundation for land ownership and rights, the High Court rejected the notion that Australia belonged to no-one before British settlement in Mabo and others v. Queensland (No. 2). Aboriginal and Torres Strait Islander peoples across the nation rejoiced that the highest court in Australia finally recognised that Indigenous people had had lived in Australia for thousands of years and enjoyed rights to their land according to their own laws and customs. They had been dispossessed of their lands piece by piece as the colony grew and that very dispossession underwrote the development of Australia into a nation.
After the High Court decision, the Australian Government passed the Native Title Act 1993, which set up the National Native Title Tribunal and gave jurisdiction to the Federal Court, to manage applications for recognition of Native Title and any future access to lands claimed as Native Title lands. As at 31 December 2014, over 27 per cent of the country has been successfully determined, with 249 Native Title determinations and thousands of negotiated agreements (including 949 Indigenous Land Use Agreements) to facilitate future development.
The Wik decision
An important part of the recognition of Native Title was the decision of the High Court in the Wik case that Native Title could co-exist with other limited interests granted by the Crown, such as pastoral leases and mining leases, although Native Title would always give way in the face of any inconsistency. However, the High Court also found that exclusive rights such as freehold and leasehold are entirely inconsistent with the continued enjoyment of native title and would permanently extinguish Indigenous peoples’ title.
The Native Title Act 1993 also established the Aboriginal and Torres Strait Islander Land Fund and the Indigenous Land Corporation (ILC) to assist Indigenous people in buying and maintaining land. As of 30 June 2014, the ILC has purchased 250 properties within Australia with a total land area of over 6.1 million hectares.
Native Title claims are made to the National Native Title Tribunal. Once a claim has been successfully filed and registered, the Aboriginal and/or Torres Strait Islander applicants can claim the right to negotiate against development of the land. This does not mean exclusive land rights are given. If the rights of pastoralists, mining companies, federal government, or private owners come into conflict with Native Title rights, they supersede the Native Title rights.
Significant progress has been made by Aboriginal people to be gain Native Title rights to their lands and waters which they own and hold sacred. There is still a way to go.
- Mabo case
- Native Title and traditional ownership
- Treaty: online exhibition
- No Ordinary Judgment: Mabo, the Murray Islanders' Land Case
- Research Discussion Paper # 19 by Mick Dodson and Diana McCarthy (PDF 220 KB)
- National Native Title Tribunal
- Indigenous Land Corporation - Our Land Program
- Federal Court of Australia - Native Title Guide