Land and Native Title
A conflict between Indigenous people’s spiritual and cultural ties with the land and the desire by newcomers to conquer, own and develop the land has existed since European settlement in 1788 of the land now known as Australia.
First settlers proclaimed the land to be ‘terra nullius’ – unowned and unoccupied – and went about trading the land and turning it into a modern, industrialised nation.
This was despite clear evidence that Indigenous people occupied the country at the time of settlement. Courts were then acquainted with treaty-making practices, and international law of the time recognised residual Indigenous sovereignty.
It was not until 3 June 1992, after a 10-year High Court case, that this thinking was officially quashed.
Through what is now known as the Mabo case, the government recognised that the land was inhabited and owned by Indigenous people who had pre-existing rights and sovereignty when European settlers arrived.
The judgement which abolished the ‘terra nullius’ concept was named after Eddie Mabo, a Torres Strait Islander who led a group of five people who went to court to gain rights to the Murray Islands of the Torres Strait.
While the case recognised Indigenous people’s common law rights to land and adjacent waters, it did not mean they automatically gained possession of land.
The Native Title Act 1993 (amended in 1998) gave such an opportunity – through the Act, Indigenous people can go to the Federal Court to show they have unbroken traditional links with the land or water and may then be granted native title to the land.
Native title rights and interests cannot be transferred or sold. Native Title will not generally be recognised over freehold land.
In order to claim land, Indigenous peoples must apply under the Native Title Act to the Federal Court of Australia.
The WA Government’s Department of Indigenous Affairs (DIA), which works with government agencies and the community to improve the life of the State’s Indigenous people, is responsible for the management and transfer of WA Indigenous land to the direct control of Indigenous people.
DIA provides information about native title land that is useful for Indigenous people and non-Indigenous individuals and groups, such as mining companies.
The Aboriginal Lands Trust (ALT) holds land in trust for Indigenous people which may be freehold (land over which the Crown has granted an interest but may grant ‘ownership’ to another party), leasehold (Crown land over which the Crown has granted an interest) or reserve land (Crown land set aside for public purposes).
In WA, the ALT holds 27 million hectares of land, or about 12 per cent of the State. Most of the land, about 20 million hectares, is reserve land.
It is intended that the control and management of all land held by the ALT will be handed back to Indigenous people.
The hand-back of land involves a thorough consultation process with the local community, including traditional owners, native title claimants, the Native Title Representative Body and those who have an interest in the land (such as people or groups leasing land held by the ALT).
Before the 1992 Mabo judgement and the Native Title Act 1993, conflict between Indigenous people and other parties over land ownership and use was often significant, with some cases notable for the extreme measures taken by both sides.
The Nookanbah community in WA’s West Kimberley region faced its biggest battle in 1980.
In 1976 the Commonwealth Government’s Aboriginal Land Fund bought the Nookanbah and Waratea pastoral leases for the Yungngora community and transferred them to a company headed by the ALT.
At the same time the government approved mining exploration leases for part of the area to Amax Mining. In 1980 the Nookanbah community evicted Amax personnel and police from the area, refusing to allow them to drill into a sacred site. The WA Government and mining giant CSR supported Amax as they entered the community and drilling was carried out.
The conflict led to blockades from groups on both sides and the long dispute was the focus for national and international media coverage.
The community runs a successful pastoral cattle station enterprise, a community store and an independent school that won a national literacy award. Young people also learn about Indigenous culture and heritage.
In December 2003, the Kimberley’s Wanjina/Wungurr-Wilinggin and Ngarinyin people won native title over 6.71 million hectares of land which spreads from near Derby to near Kununurra.
The executive director, Kimberley Land Council described the findings by Justice Ross Sundberg as the highest possible under native title law, and recognised the traditional laws and cultural strength of the claimants.
The area has been home to a single family of language groups that has been developing for at least 1,000 years. The Wanjina people’s symbol formed part of the Sydney Olympics' opening ceremony.
Eleven non-Indigenous stations operate in the area, including El Questro, a luxury tourist resort.
The first High Court native title ruling for mainland Australia was in November 1998, when it was deemed native title existed in an area claimed by the Miriuwung-Gajerrong people of the Kimberley.
Today’s governments continue to work to respect connections that Indigenous people have with the land and to show that returning land to them is essential for their spiritual and cultural health.