Introduction
Native title was first recognized in Australian law in 1982 after a group of Meriam people from the Eastern Torres Strait filed a claim with the High Court of Australia. They wanted acknowledgment of their people’s occupation and exclusive control of Mer according to their laws and customs since before British dominion. The High Court affirmed the Mabo plaintiffs’ suit in 1992, ten years after it was filed. The landmark decision in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo) recognized the Meriam people’s pre-existing native title rights and interests in Murray Island (Cronin, 2017). The High Court’s rulings in Mabo overturned the notion of terra nullius, which held that no one owned the land and recognized that Indigenous Australians had lived there for many thousands of years and had rights to their territory under their regulations and practices. The Court also determined that those rights were preserved after colonization and are today recognized and protected by the Australian legal system. The Native Title Act (NTA) became law in 1993. It provided a procedure for claiming and recognizing aboriginal title to Australian lands and waters. Implementing the first Native Title Act led to many wins for indigenous people, as many High court rulings were based on the interpretation of the Act. The 1998 NTA amendments were particularly in response to the “Wik Peoples v Queensland: Thayorre People v Queensland judgment in 1996 (Cronin, 2017). It was believed that the 1993 NTA, intended to safeguard native title and make it easier for it to be accommodated within the Australian legal system, could be used as a tool for widespread extinguishment (Howlett & Lawrence, 2019). This caused great uncertainty to individuals with interests that could conflict with those of indigenous communities. The Howard Government said in its 10-point plan that the adjustments were required to offer certainty following the Wik judgment. The Native Title Act of 1998 contained amendments regarding the acts that affect the titles of indigenous groups, claims registration and application processes, and validation of all non-Indigenous rights in property originating from earlier Crown acts. The purpose of the 1998 Native Title Act is to amend indigenous persons’ right to negotiate and provide pastoralists and mining leases exclusive land rights and rule out Native claims to such rights.
Purpose of the 1998 Native Title Act
The 1998 NTA sought to amend acts related to the native title and the evaluation of the existence of the native title, as well as compensation for acts that affect the title of the indigenous population groups. Two types of acts that affected the native title were identified; past and future acts. Past acts were done before the 1993 NTA implementation in January 1994, that the 1998 NTA invalidated. On the other hand, future acts were identified after the 1993 act invalidated by the 1998 NTA or legitimately affected the native title. The matters that were addressed regarding the past and future acts were the validity of the acts, how they affect the native title, and compensation issues (Hartwig et al., 2018). Certain acts, however, did not fall into the past or future acts category and were classified as intermediate acts. The intermediate acts were done before the 1996 High court ruling and would be invalidated by the native title. These acts were to be treated similarly to past acts.
The 1998 Native Title Act was intended to slow the registration of claims. The amended NTA added a registration test, making it more difficult to lodge a claim. This was the beginning point for the native title procedure, reducing the number of claims. In addition, the government has sped up the registration procedure. The test was applied retroactively to all claims filed since the NTA’s establishment. The registration test required confirmation of ancestors’ link with the territory and the presence of recognized and observed traditional rules and customs. The group retains native titles in line with those traditional laws and customs.
The amended NTA was also intended to allow the validation of all non-Indigenous rights in property originating from earlier Crown acts, such as the issuance of a pastoral lease, which may have been illegal due to the presence of native title (Smith & Diane, 2020). Given the confirmation of pastoral leases, the 1996 Wik case ruling question was whether the original native title to the property had been totally extinguished or if the native title could survive the grant in some form. Of a lease for a farm. The possible coexistence of native title and pastoral interests was a modest acknowledgment and realignment of interests, with minimal possibility for Indigenous interests to obstruct pastoral land usage.
The 1998 Act also aimed to replace the authority to negotiate clauses when native title interests related to specific tenures, such as pastoral leaseholds, and within certain geographic regions. Section 43A of the amended NTA enabled states and territories to add alternative provisions to substitute the right to negotiate provisions (Horowitz et al., 2018). Where states choose to enact the substitute provisions, a right of consultation and objection took the place of the right to negotiate. The right of registered native titleholders or claimants to object to the mining proposal or compulsory acquisition was included in the objection and consultation process, as was the right to have their objection heard by an independent person or body and to consult about ways to minimize the impact of the acts on registered native title rights.
The 1998 NTA also intended to provide pastoralists and mining leases exclusive land rights, thereby ruling out claims of indigenous people to their land. Section 26A of the 1998 NTA amendments addressed the requirements to be met before a minister could approve mineral mining projects (Howlett, 2010). These requirements included examining the activity’s impact on indigenous peoples, notification of representative bodies and the public, and invitation of comments on planned measures, as well as considering such submissions.
Indigenous Perspectives
The decision to revoke the right to negotiate was widely criticized. It was believed that the original right to negotiate clauses served as a safeguard, preventing the restriction or rejection of Indigenous Australians’ ability to practice their cultural rights (Altman, 2012). It further stated that according to international definitions, the freedom to negotiate for oneself is a cultural right. The amendments treat native title rights as little more than historic rights, separated from the day-to-day lives of the communities that observe and integrate their traditions into modern life, by restricting the negotiation process and thereby the participation of native title parties in decisions about the use of their land (Walter, 2015). Native title is therefore isolated from the larger idea of self-determination. The procedure by which the modifications were agreed upon also shows a disregard for such rights, in addition to the fact that the amendments violate Indigenous people’s right to participate in decisions that impact them. The most apparent instance of this was the removal of Indigenous representatives from the bargaining table when, in late June and early July 1998, Senator Harradine and the Prime Minister reached an agreement on outcomes that guaranteed the approval of the Native Title Amendment Act 1998 (Cth) (Dillon & Michael, 2020).
Following the passing of the 1998 NTA, ministers would allow a mining company’s exploration if it was believed that the operation could not significantly affect the land or waters (Smith & Diane, 2020). The 1998 amendments, if implemented, would reduce the participation requirement for successful negotiation by allowing ministers to remove native title claimants from having a significant voice in the rushed decisions (Pedersen & Phillpot, 2018). The amendment ignored how much native title rights could be destroyed by mining infrastructure. While native title parties have some procedural rights, such as the right to be notified, the right to object and be consulted, and the right to a hearing by an independent person, there is no reason why the right to negotiate should be removed in respect to these activities, especially given that the magnitude, location, and permanence of infrastructure building may have catastrophic impacts on Indigenous communities. Removing the right to negotiate concerning mining infrastructure indicates that mining interests should be prioritized over native title concerns.
The registration process outlined in the amended NTA also rejected indigenous Australians’ property rights. The necessity for claimants to fulfill a present physical connection test to be registered is inconsistent with the common law test for native title recognition. The High Court decided in Mabo (No.2) that claimants establish a spiritual or physical relationship to the land, which must be demonstrated through customary laws and traditions. Therefore, the necessity of a physical connection to the land contributed to disentitling native title claimants who could establish a continued spiritual connection to the property from having their legal rights, identifiable at common law, protected by NTA proceedings (Weir & Duff, 2017). This made such native title rights more vulnerable to degradation or elimination due to projected government grants or third-party activity under the future acts system. These standards established in the NTA of 1998 also do not consider Indigenous decision-making systems, which may be substantial and time-consuming.
Conclusion
The 1998 NTA sought to amend the original NTA, which provided a bill of rights for the Aboriginal/Torres Strait Islander communities. The High court rulings that followed the implementation of the original NTA resulted in great uncertainty for interest groups because indigenous communities were greatly winning. Through the passing of Howard’s recommendations, legislative reaction to the Wik case was purported to protect the interests of indigenous populations and offer certainty to interest groups such as mining and pastoralism. However, the passing of the 1998 amendments resulted in a widespread limiting of the rights of Aboriginal people and denied them the very freedoms that the first NTA had envisioned. In addition, the amendments failed to acknowledge the injustices carried out against Native inhabitants and reconciliation facilitation. The amendments demonstrate that besides Mabo and other judgments influencing the interests and entitlements of Aborigines in the land, the fight for indigenous Australians to maintain their land rights in Australia still endures.
References
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