Indigenous land rights in Australia
In Australia, Indigenous land rights or Aboriginal land rights are the rights and interests in land of Aboriginal Australians and Torres Strait Islander people; the term may also include the struggle for those rights. Connection to the land and waters is vital in Australian Aboriginal culture and to that of Torres Strait Islander people, and there has been a long battle to gain legal and moral recognition of ownership of the lands and waters occupied by the many peoples prior to colonisation of Australia starting in 1788, and the annexation of the Torres Strait Islands by the colony of Queensland in the 1870s.
, Aboriginal and Torres Strait Islander peoples’ rights and interests in land are formally recognised over around 40 per cent of Australia’s land mass, and sea rights have also been asserted in various native title cases.
Description and distinctions
According to the Attorney-General's Department:Native title in Australia includes rights and interests relating to land and waters held by Indigenous Australians under traditional laws and customs, and recognised in accordance with the Native Title Act 1993. Although this is federal legislation and therefore applicable to the whole of Australia, the way in which the processes for native title operate in each state and territory is dependent on the history of the land rights arrangements of the particular state or territory. In some jurisdictions, titles to large areas of traditional lands were granted before the Act commenced.
The Native Title Act was passed following the High Court of Australia decision of Mabo v Queensland, which recognised for the first time that Indigenous people had rights to land sourced from their continuing connection to it and that these rights are recognised under Australian common law. Where these rights had not been extinguished through contradictory Crown grants, native titles continued to exist and could exist alongside certain title, such as crown leases.
Different types of land rights laws exist in Australia, allowing for the renewed ownership of land to Indigenous Australians under various conditions. Land rights schemes are in place in the Northern Territory, Queensland, New South Wales, South Australia, Victoria and Tasmania. The land titles may recognise traditional interest in the land and protect those interests by giving Aboriginal people legal ownership of that land. Also, according to the National Native Title Tribunal: "A successful land rights claim usually results in a special grant of freehold title or perpetual lease. A title document for the land is issued. The title is normally held by a community or an organisation, not by individuals. There are usually some restrictions on selling, and dealing with, land that has been granted in a land rights claim. Normally, the land will be passed down to future generations in a way that recognises the community’s traditional connection to that country".
Indigenous land rights relate to the rights and interests in land of Aboriginal and Torres Strait Islander people in Australia, and the term is also used to describe the struggle for those rights.
, Aboriginal and Torres Strait Islander peoples’ rights and interests in land are formally recognised over around 40 per cent of Australia’s land mass. The recognition of Indigenous rights in land and waters is fundamental to the process of reconciliation.
History
The colonisation of mainland Australia started in the 1700s, while the Torres Strait Islands were only taken over by the colony of Queensland in the 1870s.The Letters Patent establishing the Province of South Australia of 1836, which were issued during the period of British colonisation of South Australia, included recognition of the rights of the Aboriginal peoples of South Australia – the first ever recognition of Aboriginal rights on the continent – but the promise was never kept.
During the late 19th and early 20th centuries, the movement of Aboriginal peoples in Australia was controlled by colony- and later state-based laws, such as the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 in Queensland. This often meant that they were confined to living on Aboriginal reserves or mission stations, where they had no rights to land ownership.
The struggle for land rights
The passing of Aboriginal land rights legislation in Australia in the late 20th century was preceded by a number of important Aboriginal protests. The modern land rights movement started with the 1963 Yolngu Bark Petition, when Yolngu people from the remote settlement of Yirrkala, in north-east Arnhem Land, petitioned the federal government to have their land and rights given back. The 1966 Wave Hill Walk-Off, or Gurundji Strike, started with a protest about working conditions, but grew into a lands right issue, with the people claiming rights to the land which was then a cattle station owned by a large British company, Vesteys. The strike lasted for eight years.In 1961, at the Native Welfare Conference, a meeting of federal and state ministers responsible for Aboriginal welfare, agreed on a policy of assimilation. The measures included the removal of discriminatory legislation and restrictive practices, welfare measures, education and training to assist the involvement of Aboriginal people in the economy, and the education of non-Indigenous Australians about Aboriginal culture and history. It brought about a more widespread awareness by non-Indigenous people to social justice for Aboriginal and Torres Strait Islander people. South Australian premier Sir Thomas Playford argued for integration rather than assimilation of Aboriginal people, and others questioned the concept of assimilation, with its paternalistic attitude.
The Aboriginal Lands Trust Act 1966 established the South Australian Aboriginal Lands Trust. This was the first major recognition of Aboriginal land rights by any Australian government, and predated the 1967 Referendum. It allowed for parcels of Aboriginal land previously held by the SA Government, to be handed to the Aboriginal Lands Trust of SA under the Act. The Trust was governed by a Board composed solely of Aboriginal people.
1970s activism and legislation
In the 1970s, Indigenous Australians became more politically active, and a powerful movement for the recognition of Indigenous land rights emerged. Also during this decade, the federal government started buying privately owned land in order to benefit Indigenous communities, and also to create Crown land which would be available for claim.In 1971, Justice Richard Blackburn of the Supreme Court of the Northern Territory ruled against the Yolngu in Milirrpum v Nabalco Pty Ltd, when they sought native title rights over the Gove Peninsula. However, Justice Blackburn did acknowledge the claimants' ritual and economic use of the land and that they had an established system of law "a subtle and highly elaborate" system of laws. In this way, this was the first significant legal case for Aboriginal land rights in Australia.
Aboriginal Tent Embassy
The Aboriginal Tent Embassy was set up on the front lawns of Old Parliament House, Canberra on 26 January 1972, by four Aboriginal activists, Michael Anderson, Billy Craigie, Tony Coorey and Bertie Williams (later Kevin "Bert" Johnson, as protest for Indigenous land rights. The embassy was established in response to the McMahon Coalition Government's refusal to recognise Aboriginal land rights or native title in Australia, instead offering 50-year general-purpose leases for Aboriginal people which would be conditional upon their "intention and ability to make reasonable economic and social use of land", while reserving for the Crown rights to minerals and forestry.Black Moratorium
The Black Moratorium refers to protests which took place on 14 July 1972. The Sydney protest was in the form of marches from Redfern, Sydney University and other points, to Sydney Town Hall, attended by around 6,000 protesters, who included Aboriginal people, students and trade unionists. Gary Foley printed a pamphlet at Sydney University ahead of the protest. Unionists from several trades, including builders' labourers, ship painters, dockers and teachers, had voted to go on strike for half a day in support of Aboriginal people, and around 2,000 students joined the protest. There were also protests in Newcastle, Brisbane, and Darwin, all under the rallying cry of "Ningla-A-na". The demands of the protesters were, specifically:The moratorium as a tactic was copied from the campaign against the Vietnam War: a weekday protest meant that union supporters would need to convince others in their workplace about why solidarity with Aboriginal people was an important issue for their movement. Striking would both disrupt the economy and show strong conviction and understanding of the struggle, and the discussion put Black rights into workplaces, staff rooms and classrooms. It was later assessed as one of the most successful and historically significant protests for Aboriginal rights in Australia until this time. Its legacy included the establishments of networks which led to thousands of people defending the Tent Embassy against attempts by police to shut it down, and union funding helped keep the embassy running. The Moratorium showed that non-Indigenous workers could be strong allies in the struggle for Indigenous rights. Bruce McGuinness published an article in the November issue of Aboriginal and Islander Identity magazine about the march in Melbourne, which was attended by about 2000 people, including an estimated 16% of the Black population. It also had a heavy police presence.
''Aboriginal Land Rights Act 1976''
In the wake of Milirrpum, the Aboriginal Land Rights Commission was established in the Northern Territory in 1973. This Royal Commission, chaired by Justice Woodward, made a number of recommendations in favour of recognising Aboriginal Land Rights. Taking up many of these recommendations, the Whitlam government introduced an Aboriginal Land Rights Bill to Parliament; however, this lapsed upon the dismissal of the government in 1975. The succeeding conservative government, led by Malcolm Fraser, reintroduced a Bill, though not of the same content, and it was signed by the governor-general of Australia on 16 December 1976.The Aboriginal Land Rights Act 1976 established the basis upon which Aboriginal people in the Northern Territory could claim rights to land based on traditional occupation. The statute, the first of the Aboriginal land rights acts, was significant in that it allowed a claim of title if claimants could provide evidence of their traditional association with land. Four Land Councils were established in the Northern Territory under this law.
The Aboriginal Land Rights Act 1976 established a procedure that transferred almost 50 per cent of land in the Northern Territory to collective Aboriginal ownership. Following this, some states introduced their own land rights legislation; however, there were significant limitations on the returned lands, or that available for claim.
Paul Coe, in Coe v Commonwealth, attempted to bring a class action on behalf of all "Aborigines" claiming all of Australia.