Native Title Law Reform Case Study

Native title law reform has been somewhat effective in achieving just outcomes for Indigenous Australians however it is important to acknowledge this reform as only a part of creating a more just society for the indigenous peoples. Native title is a form of land rights that recognises the indigenous peoples unique connection to the land, it also debunks the concept of ‘terra nullius’ allowing certain indigenous groups the right to parts of their land. Terra Nullius is the legal concept that the British claimed uninhabited land, and the indigenous people were viewed as fauna. The Indigenous Australians deserve all aspects of justice- access, equality and fairness-in the area of native title however this is yet to be achieved within Australia.

The desire to protect the rights of landowners makes achieving a just system for indigenous people difficult as it limits their rights in achieving ‘ownership’ of their land. The case of Wik Peoples v Queensland (Pastoral Leases Case) [1996] HCA 40 was a way for the courts to develop a compromise on native title with pastoral leases. This case developed the idea of co-existence of native title and pastoral leases however did favour leases to the extent of the inconsistency when inconsistency arises. While in theory this seemed to be a good solution to the issue, as discussed in Mick Gooda’s 2012 article ‘Native title reform could go closer to fulfilling Mabo’s legacy’, the decision resulted in a significant weakening of Aboriginal and Torres Strait Islander people’s positions in amendments. This case emphasized the inequalities ingrained in the system and put it to paper in the Native Title Amendment Act 1998 which clarified the decision of the case as well as extinguished native title on privately owned land prior to January 1st 1994 and outlined that at least one member of the group must prove a continuous connection in order to prove native title. This legislation gives landowners are priority in native title claims and the claimants are secondary. By reforming the legislation following Wik Peoples v Queensland

It is evident that a great deal of progress has been made in regard to native title, however the process is extremely lengthy and requires significant effort from the individuals attempting to claim ‘native title’. This process has been under scrutiny since the establishment of the Native Title Act in 1993. The average time it takes for a claim to receive a verdict is between 6 and 7 years without taking into account the common occurrence of claims being withdrawn, re-lodged or consolidated. Discussion Paper 82, Review of the Native Title Act 1993 in 2014, discusses the various issues that have risen from the Native Title Act and what might be necessary to allow for more just outcomes for indigenous Australians. The time and cost of making a claim to native title restricts access for the indigenous peoples limiting the ability for just outcomes to occur. Another key issue, further discussed in Mick Gooda’s article in the Sydney Morning Herald ‘Native title reform could be closer to fulfilling Mabo’s legacy’, is the issue of what is required to prove native title. He also discusses Senator Siewert’s Native Title Amendment (Reform) Bill 2014, which proposed the idea of claimants being assumed to have a continuous connection with the land unless there is clear evidence that this connection has been disrupted. This would