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.
As of 2020 [update] , 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.
According to the Attorney-General's Department: [1]
There are fundamental differences between land rights and native title. Land rights are rights created by the Australian, state or territory governments. Land rights usually consist of a grant of freehold or perpetual lease title to Indigenous Australians. By contrast, native title arises as a result of the recognition, under Australian common law, of pre-existing Indigenous rights and interests according to traditional laws and customs. Native title is not a grant or right created by governments.
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 (Cth). [2] 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. [3]
The Native Title Act was passed following the High Court of Australia decision of Mabo v Queensland (No. 2), [4] 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. [4]
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 (including the Torres Strait Islands), New South Wales, South Australia, Victoria and Tasmania. [5] 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". [5]
Indigenous land rights relate to the rights and interests in land of Aboriginal and Torres Strait Islander people in Australia, [2] and the term is also used to describe the struggle for those rights. [4]
As of 2020 [update] , 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. [2]
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. [4] [2]
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 [6] [7] – the first ever recognition of Aboriginal rights on the continent – but the promise was never kept. [8]
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. [9] [10] [11]
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. [4]
In 1961, at the Native Welfare Conference, a meeting of federal and state ministers responsible for Aboriginal welfare, [12] 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. [8] 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, [8] and others questioned the concept of assimilation, with its paternalistic attitude. [13]
The Aboriginal Lands Trust Act 1966 (SA) established the South Australian Aboriginal Lands Trust (ALT). [14] This was the first major recognition of Aboriginal land rights by any Australian government, [15] 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. [8]
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. [4]
In 1971, Justice Richard Blackburn of the Supreme Court of the Northern Territory ruled against the Yolngu in Milirrpum v Nabalco Pty Ltd (the "Gove land rights case"), [16] 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 ( Madayin ). [17] In this way, this was the first significant legal case for Aboriginal land rights in Australia.
The Aboriginal Tent Embassy was set up on the front lawns of Old Parliament House, Canberra on 26 January (Australia Day) 1972, by four Aboriginal activists, Michael Anderson, Billy Craigie, Tony Coorey and Bertie Williams (later Kevin "Bert" Johnson, as protest for Indigenous land rights. [18] 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. [19] [20]
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. [21] Gary Foley printed a pamphlet at Sydney University ahead of the protest. [22] 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. [23] There were also protests in Newcastle, Brisbane, and Darwin, all under the rallying cry of "Ningla-A-na" (Arrernte for "hungry land"). The demands of the protesters were, specifically: [24]
- Absolute ownership, including mineral and forestry rights of all reserves and traditional areas to be vested in the Black communities associated with these areas.
- Full compensation for all land seized since 1770.
- The right and power of Black communities to control their lives and their land.
- Support for all Black struggles, including those for:
- a) An immediate and massive Health program to eliminate the very high Black infant mortality rate
- b) Full employment on at least award wages
- c) Decent housing and no evictions
- d) Black studies and culture in education
- e) Real equality in education
- f) An end to all discrimination and discriminatory legislation (e.g. Queensland Acts.)
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. [23] 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. [25]
In the wake of Milirrpum, the Aboriginal Land Rights Commission (also known as the "Woodward Royal 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. [26] 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. [27] [28] [29] [30]
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. [27] [28]
The Aboriginal Land Rights Act 1976 established a procedure that transferred almost 50 per cent of land in the Northern Territory (around 600 000 km2) to collective Aboriginal ownership. [31] [4] Following this, some states introduced their own land rights legislation; however, there were significant limitations on the returned lands, or that available for claim. [4]
Paul Coe, in Coe v Commonwealth (1979), attempted (unsuccessfully) to bring a class action on behalf of all "Aborigines" claiming all of Australia. [32]
In 1981 South Australian Premier David Tonkin returned 102,650 square kilometres (39,630 sq mi) of land (10.2% of the state's land area) to the Pitjantjara/Yankunytjatjara people, as the APY lands. The land rights legislation was introduced by Premier Don Dunstan in November 1978, several months prior to his resignation from Parliament. An amended bill, following extensive consultation, was passed by the Tonkin Liberal Government, as the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 .
In 1984 Premier John Bannon's Labor Government passed the Maralinga Tjarutja Land Rights Act 1984 to return lands to the Pitjantjara people in the remote western area of the state. The legislation was proclaimed in January 1985 and was followed by a ceremony in the desert attended by Maralinga Tjarutja leader Archie Barton, John Bannon and Aboriginal Affairs Minister Greg Crafter. [33]
In 1995 the Indigenous Land Corporation (ILC) was established by the Federal Government to assist Aboriginal Australians to acquire land and manage Aboriginal held land sustainably and in a manner that provides cultural, social, economic and environmental benefits for themselves and future generations. In February 2019, the ILC became the Indigenous Land and Sea Corporation (ILSC), in recognition of its operations on water. The ILSC is funded by an annual payment from the investment returns of the Australian Government's Aboriginal and Torres Strait Islander Land Account. [31]
The Aboriginal Land Rights (Northern Territory) Act 1976 (see above) provides the basis upon which Aboriginal Australian people in the Northern Territory can claim rights to land based on traditional occupation. [34] [35] The freehold land cannot be sold or transferred, but it can be leased. [35]
In Queensland, the Aboriginal Land Act 1991 and the Torres Strait Islander Land Act 1991 provide for Aboriginal and Torres Strait Islander freehold respectively. Aboriginal and Torres Strait Islander freehold land occupies 5%, or 59,489 square kilometres (22,969 sq mi) of northern Queensland. A Registered Native Title Body Corporate (RNTBC) can be trustee of this land, who can grant leases of up to 99 years for any purpose. [35]
A third type of land tenure, mainly held by Aboriginal and Torres Strait Islander communities in remote and regional Queensland, is the Deed of Grant in Trust (DOGIT). [35] These were established primarily to administer former Aboriginal reserves and missions. They came about through legislation passed by the Queensland Government in 1984. [36] Aboriginal and Torres Strait Islander local governments hold trusteeship of the DOGITs, and land tenure under this type of tenure is held in collective title, held in trust for future generations. From 1 January 2015, some trustees, namely those classified as "urban" or "future urban") are able to convert parts of the collective title to either Aboriginal freehold or Torres Strait Islander freehold title. [35]
Mer (Murray) Island (the subject of the Mabo No.1 (1988) and No.2 (1992) cases) is Torres Strait Islander freehold and Aurukun is Aboriginal freehold land. [35]
In the 2013 Review of the Aboriginal Lands Trust Act 1966, the powers of the Trust were reviewed and changed to modernise the Trust and the Aboriginal Lands Trust of South Australia Act 2013 (SA) was passed. [37]
The Aboriginal Lands Trust (ALT) of Western Australia was established by the Aboriginal Affairs Planning Authority Act 1972. This body holds about 24,000,000 hectares (59,000,000 acres), or 10% of the State's land. There are different types of tenures held by different parts of this land, including reserves, leases and freehold property. There are many remote communities on this land, inhabited by about 12,000 people. Land reform is ongoing, to use the land in a way which benefits the Aboriginal people. [35]
Since the 2010s, there has been a growing number of freemen on the land / sovereign citizen groups targeting Indigenous Australians, with groups with names like Tribal Sovereign Parliament of Gondwana Land, the Original Sovereign Tribal Federation (OSTF) [38] and the Original Sovereign Confederation. OSTF Founder Mark McMurtrie, an Aboriginal Australian man, has produced YouTube videos speaking about “common law”, which incorporate Freemen beliefs. Appealing to other Aboriginal people by partly identifying with the land rights movement, McMurtrie played on their feelings of alienation and lack of trust in the systems which had not served Indigenous people well. [39] Proponents of the original ideas are often related to far-right movements, whose core beliefs may be broadly defined as "see[ing] the state as a corporation with no authority over free citizens". [40] [41]
Mabo v Queensland is a landmark decision of the High Court of Australia that recognised the existence of Native Title in Australia. It was brought by Eddie Mabo and others against the State of Queensland, and decided on 3 June 1992. The case is notable for being the first in Australia to recognise pre-colonial land interests of Indigenous Australians within the common law of Australia.
The Torres Strait Islands are an archipelago of at least 274 small islands in the Torres Strait, a waterway separating far northern continental Australia's Cape York Peninsula and the island of New Guinea. They span an area of 48,000 km2 (19,000 sq mi), but their total land area is 566 km2 (219 sq mi).
Native title is the set of rights, recognised by Australian law, held by Aboriginal and Torres Strait Islander groups or individuals to land that derive from their maintenance of their traditional laws and customs. These Aboriginal title rights were first recognised as a part of Australian common law with the decision of Mabo v Queensland in 1992. The doctrine was subsequently implemented and modified via statute with the Native Title Act 1993.
The Aboriginal Land Rights Act 1976 (ALRA) is Australian federal government legislation that provides the basis upon which Aboriginal Australian people in the Northern Territory can claim rights to land based on traditional occupation. It was the first law by any Australian government that legally recognised the Aboriginal system of land ownership, and legislated the concept of inalienable freehold title, as such was a fundamental piece of social reform. Its long title is An Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes.
The second question of the 1967 Australian referendum of 27 May 1967, called by the Holt government, related to Indigenous Australians. Voters were asked whether to give the Commonwealth Parliament the power to make special laws for Indigenous Australians in states, and whether Indigenous Australians should be included in official population counts for constitutional purposes. The term "the Aboriginal Race" was used in the question.
The Native Title Act 1993(Cth) is a law passed by the Australian Parliament, the purpose of which is "to provide a national system for the recognition and protection of native title and for its co-existence with the national land management system". The Act was passed by the Keating government following the High Court's decision in Mabo v Queensland (No 2) (1992). The Act commenced operation on 1 January 1994.
Hammond Island is an island with a town of the same name, in the Torres Strait, Queensland, Australia. It is the only island within the locality of Keriri Island within the local government area of Torres Strait Island Region. In the 2021 census, Hammond Island had a population of 261 people, of whom 253 (96.9%) identified as Indigenous Australians.
The Aboriginals Protection and Restriction of the Sale of Opium Act 1897(Qld), was an Act of the Parliament of Queensland. It was the first instrument of separate legal control over Aboriginal peoples, and was more restrictive than any contemporary legislation operating in other states. It also implemented the creation of Aboriginal reserves to control the dwelling places and movement of the people.
The history of Indigenous Australians began 50,000 to 65,000 years ago when humans first populated the Australian continental landmasses. This article covers the history of Aboriginal Australian and Torres Strait Islander peoples, two broadly defined groups which each include other sub-groups defined by language and culture. Human habitation of the Australian continent began with the migration of the ancestors of today's Aboriginal Australians by land bridges and short sea crossings from what is now Southeast Asia. The Aboriginal people spread throughout the continent, adapting to diverse environments and climate change to develop one of the oldest continuous cultures on Earth.
The Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 grants certain land and other rights to the Anangu Pitjantjatjara Yankunytjatjara in South Australia. It began its life as the Pitjantjatjara Land Rights Act and commenced operation on 2 October 1981. Its long name title is "An Act to provide for the vesting of title to certain lands in the people known as Anangu Pitjantjatjara Yankunytjatjara; and for other purposes". The Act has since had several amendments, the latest in 2017.
Indigenous Australians are people with familial heritage from, and/or recognised membership of, the various ethnic groups living within the territory of present day Australia prior to British colonisation. They consist of two distinct groups, which includes many ethnic groups: the Aboriginal Australians of the mainland and many islands, including Tasmania, and the Torres Strait Islanders of the seas between Queensland and Papua New Guinea, located in Melanesia.
An Australian Aboriginal sacred site is a place deemed significant and meaningful by Aboriginal Australians based on their beliefs. It may include any feature in the landscape, and in coastal areas, these may lie underwater. The site's status is derived from an association with some aspect of social and cultural tradition, which is related to ancestral beings, collectively known as Dreamtime, who created both physical and social aspects of the world. The site may have its access restricted based on gender, clan or other Aboriginal grouping, or other factors.
A Deed of Grant in Trust (DOGIT) is the name for a system of community-level land trust established in Queensland to administer former Aboriginal reserves and missions. They came about through the enactment by the Queensland Government of the Community Services Act 1984 and Community Services (Aborigines) Act 1984 in 1984, allowing community councils to be created to own and administer former Aboriginal reserves or missions under a Deed of Grant in Trust). The trusts are governed by local representatives who are elected every three years to councils called Incorporated Aboriginal Councils. These councils have the power to pass by-laws, appoint police for the community, and are responsible for maintaining housing and infrastructure, running the Community Development Employment Program and issuing hunting, fishing and camping permits. As such, they work much like a local government, but are different in character as they own the land they administer on behalf of the community.
Indigenous Australian customary lore refers to the legal systems and practices uniquely belonging to Indigenous Australians of Australia, that is, Aboriginal and Torres Strait Islander people.
Australian heritage laws exist at the national (Commonwealth) level, and at each of Australian Capital Territory, New South Wales, Northern Territory, Queensland, South Australia, Tasmania, Victoria, Western Australia state and territory levels. Generally there are separate laws governing Aboriginal cultural heritage and sacred sites, and historical heritage. State laws also allow heritage to be protected through local government regulations, such as planning schemes, as well.
Land councils, also known as Aboriginal land councils, or land and sea councils, are Australian community organisations, generally organised by region, that are commonly formed to represent the Indigenous Australians who occupied their particular region before the arrival of European settlers. They have historically advocated for recognition of traditional land rights, and also for the rights of Indigenous people in other areas such as equal wages and adequate housing. Land councils are self-supporting, and not funded by state or federal taxes.
A Registered Native Title Body Corporate (RNTBC) is a corporation nominated by a group of Aboriginal or Torres Strait Islander people for the purposes of native title in Australia, to represent their native title rights and interests, once that group's native title application has been recognised in a Federal Court of Australia determination, and the corporate body registered. The corporation nominated hold and manage or manage before native title determination and registration, is called a Prescribed Body Corporate (PBC).
Commonwealth, State, and Territory Parliaments of Australia have passed Aboriginal land rights legislation.
In Australia, an Aboriginal land trust (ALT) is a type of non-profit organisation that holds the freehold title to an area of land on behalf of a community of Aboriginal Australians. The land has been legally granted to a community by the government under a perpetual lease, usually after the community makes a formal claim of traditional ownership. Land granted under Aboriginal title is inalienable; it can not be bought, sold, traded or given away. The land trust is the organisation appointed by the community to legally hold the title deeds. The land trusts are administered by Aboriginal land councils.
Reconciliation in Australia is a process which officially began in 1991, focused on the improvement of relations between the Aboriginal and Torres Strait Islander peoples of Australia and the rest of the population. The Council for Aboriginal Reconciliation (CAR), created by the government for a term of ten years, laid the foundations for the process, and created the peak body for implementation of reconciliation as a government policy, Reconciliation Australia, in 2001.
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His Honour quotes Kirby in Fejo, who dismissed an argument that the Letters Patent Proviso provides any protection for the rights of Aboriginal People to the occupation or enjoyment of their lands.[ permanent dead link ] – refers to Fejo v Northern Territory (1998) 195 CLR 96. (This case is based on s 61 Native Title Act 1993 (Cth).)