Native title has been endorsed as part of the common law of Australia ever since 1992, and has been synchronized by statute since 1994.

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Law 100                Huzaifa S F Abbas

Native Title Amendment Bill                Std # 2193759

Summary

The NTA established the National Native Title Tribunal to manage claims to native title and/or compensation and provided for recognized State/Territory Bodies to perform similar functions; it provided for the validation of `past acts' affecting native title which might otherwise be invalid because of native title. Then there is traditional Aboriginal law and custom or, more accurately, the laws and customs of each aboriginal group holding native title. Furthermore, the overall outcome of the amendments will be to moderate the state of affairs where native title may tolerate through the extinguishment provisions and reduce the ability of native title holders to have a meaningful say in respect of developments on native title land which may impair or extinguish their native title rights. Native title is a property right recognized by the Australian legal system and native title holders should be treated equally with other property holders.


Introduction

Native title has been endorsed as part of the common law of Australia ever since 1992, and has been synchronized by statute since 1994.   According to the Aboriginal and Torres Strait Islander Commission, the Native title is the term used to describe the recognition in Australian law of the rights and interest of Aboriginal peoples and Torres Strait Islanders to land and waters under their laws and customs. Furthermore, the native title holders have the right to be compensated if governments acquire their land or waters for future developments.

There are three main types of native title applications (Nation Native Title Tribunal, 2002):

  • Claimant application

An application made by Indigenous people for a determination that native title exists in a particular area of land or waters. A native title determination is the legal recognition of the rights and interests held by Indigenous Australians according to traditional laws and customs. Claimant applications are often also referred to as 'native title claims' or 'native title determination applications'. They are usually filed with the Federal Court of Australia.

  • Non-claimant application

An application made by a person who does not claim to have native title to an area but who seeks a determination that native title does or does not exist in that area.

  • Compensation application

An application made by Indigenous Australians seeking compensation for loss or impairment of their native title.

What does the Native Title Act (NTA) do?

The Native Title Act 1993 (Cth) (NTA), enacted at the end of 1993 after a year of intense public debate and direct negotiation between indigenous legislative bodies, the Prime Minister and other senior members of the Government and other parties was intended as beneficial legislation to recognize and protect native title. The NTA established the National Native Title Tribunal to manage claims to native title and/or compensation and provided for recognized State/Territory Bodies to perform similar functions; it provided for the validation of `past acts' affecting native title which might otherwise be invalid because of native title. It provides a system for dealing with `future acts' by governments which might affect native title, including providing the Right to Negotiate requiring that negotiations take place with native title holders before the grant of a mining interest and it provides for Representative Aboriginal/Torres Strait Islander.

Sources of the NTA

First there is the common law, which embodies the principles governing all aspects of native title, except to the extent that they are modified by legislation. The common law usually changes and evolves incrementally over time, but sometimes the changes are substantial and abrupt, as in the Mabo decision, this is also known as an extinguishment. Then there is traditional Aboriginal law and custom or, more accurately, the laws and customs of each aboriginal group holding native title. Although these are not strictly laws in the sense of rules to be applied by courts, they are recognized by the common law to the extent that they are the source of native title, and define its content and ownership (Van Hattem, 1997).

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Next there is the written law, principally the Native Title Act, but including State and Territory statutes, and also including subsidiary legislation, such as regulations and procedures made under the Native Title Act. The written law modifies or supplements the common law, and is itself the subject of interpretation by judicial and administrative decisions, including High Court and Federal Court decisions, and determinations by the National Native Title Tribunal. The principal difficulties lie with the written law, which is undoubtedly capable of improvement. This is principally in the hands of the Commonwealth Parliament, whose laws override the common law ...

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