Policy Review - Aboriginal Affairs - "Mabo" Native Title Legislation

Attachment 1

Aboriginal Affairs - "Mabo" Native Title Legislation - POLICY

















Adopted: 4 APRIL 1996 (006)

Last reviewed: 




1.0       Policy objective


2.0       Related legislation


3.0       Definitions

4.0       Policy statement


That the information regarding Native Title Legislation and previously presented to Council on 21 September 1995 be noted for information and future reference.


4.1       History


Extract from Late Items - General Manager's Report - 21.09.95


During the meeting of the Mid North Coast Group of the Institute of Municipal Management held at Coffs Harbour on Friday 15 September 1995, Solicitor Mr Paul Batley gave an interesting presentation on Native Title legislation.


This was in his capacity of his connection with the Aboriginal Law Centre which was "established" by the University of New South Wales Law School.


In the United States and New Zealand land was acquired by treaty with the Natives.  However, this was not the case in Australia because of the view that prevailed - that of "terra nullius" (empty land).


The MABO decision recognised that "another form of land ownership exists" and recognises Native Title.


This decision was in respect of land on Murray Island and it is quite possible that Native Title will be found to exist in other areas.


There was a misconception that the MABO decision created Native Title and did so potentially anywhere in Australia.


Native Title is described as a traditional attachment extending back before European settlement.


Given the need to establish beyond doubt the association between Indigenous people and the land, it is not surprising that no further Native Title determinations have been made.


Native Title can be extinguished by any dealing with the Crown which is inconsistent with Native Title use.  Leases over land could have extinguished Native Title.  In fact MABO effectively extinguished Native Title for all lands effectively dealt with through the Crown, ie, freehold, Crown grants, pastoral leases.






As a result of the Racial Discrimination Act 1975 (the equality of all people before the law) it is now discriminatory to "abolish" Native Title - especially without just terms compensation.


Native Title legislation has established a regime or steps for determining whether Native Title exists over land.


The Native Title Act has supported the continued use of land by the general public, subject to certain reservations.


Native Land Title holders can "surrender" title on just terms compensation.


Applications to the Native Title Tribunal, advertised and not bringing forth a response then become regarded as a "non claimant" type of application.  If such an application is granted there could be a later claim for just compensation, despite silence at the time of advertising the application.


Mr Batley stated that he was not sure what compensation or levels of compensation are proposed for New South Wales although the State has passed the native Titles Act.


On the issue of public works and their affect on Native Title, up to 1975 Native Title would have been regarded as extinguished - but after 1975 there may be entitlement to compensation because of the provisions of the Racial Discrimination Act.


Land successfully claimed as Aboriginal land could be successfully converted to Native Title.


RECOMMENDATION:  That this information regarding Native Title legislation be noted for information and future reference.


Note:  See also A3/4 - 17 March 1994