Native_Title_Research_Assignment_-

Introduction The purpose of this report is to address the concerns raised by the client with respect to fears about the possibility of indigenous people ‘taking his land’ because of native title. This report will establish the client’s legal rights with regards to concerns raised, the appropriate legislation that has coverage over the matter and the case law that apply. The report will draw out any potential liability that the client may have under the relevant legislation. Applicable legislation The relevant legislation considered applicable to this scenario is as follows: • Native Title Act 1993 (Cth) • Lands Acquisition Act 1989 (Cth) • Lands Acquisition Act 2008 (NT) The following sections from the Native Title Act 1993 (Cth) may have applicability: • Native Title Act 1993 (Cth) s4(3) Recognition and protection of native title on past acts and future acts. • Native Title Act 1993 (Cth) s24MD(2) Extinguishment of native title is a possibility by compulsory acquisition . • Native Title Act 1993 (Cth) s223(1c) the rights of native title are recognized by the common law of Australia . • Native Title Act 1993 (Cth) s225 Determination of native title and its existence in relation to land and waters. The following sections from the Lands Acquisition Act 1989 (Cth) and the Lands Acquisition Act 2008 (NT) may also have applicability: • Lands Acquisition Act 1989 (Cth) s40 A minister may authorize an acquisition by agreement for an interest in land to be used for public purpose. • Lands Acquisition Act 1989 (Cth) s41(2) A Minister may, subject to s42 (public park), declare, in writing, that the interest is acquired by the acquiring authority by compulsory process. • Lands Acquisition Act 2008 (NT) s43 The Minister may acquire land under this Act for any purpose whatsoever. Native Title Act 1993 (Cth) In 1993 the Commonwealth Government enacted the Native Title Act 1993 (Cth). This legislation was originally enacted to determine what land would be subject to native title according to non-indigenous law. This was later amended by the Native Title Act 1998 (Cth) Amendment. The National Title Act 1993 (Cth) Preamble states that the High Court had rejected that Australia was terra nullius (land belonging to no one) and that Australia recognises that the indigenous inhabitants of Australia had an entitlement to certain land and waters in respect to their laws and customs. The considerations for entitlement of this Act are those people who are Aboriginal or Torres Strait Islanders who were descendants of the indigenous inhabitants before the European settlement. The Native Title Act 1993 (Cth) was negotiated between the Federal Government and indigenous groups to recognise and protect native title, validate previous grants of title, validate future acts of native title and for courts to make future decisions on native title. Nettheim, Meyers & Craig state that the Act was a highly complex scheme, which was to be used to determine if land was subject to native title. Native title as defined in the Native Title Act 1993 (Cth) : • the rights and interests are possessed under the traditional laws acknowledged and the traditional customs observed by the Aboriginal peoples or Torres Strait Islanders; • the Aboriginal peoples or Torres Strait Islanders by those laws and customs have a connection with the land or waters; and • the rights and interests are recognised by the common law of Australia. In 1992 the High Court of Australia recognised land rights for the indigenous people of Australia in the case Mabo v Queensland (1992) (No 2) 175 CLR 1. The case changed common law in regards to the legal rights of land and waters to the Indigenous Australians and to recognise native title to the Meriam people through the Murray Islands in the Torres Straight. This case overturned the notion of terra nullius. • Within common law native title can only be granted where land and water is involved and traditional customs observed must have a connection to land and water. The common law cannot protect the cultural knowledge as a native title right. The considerations for entitlement of this Act are those people who are Aboriginal or Torres Strait Islanders who were descendants of the indigenous inhabitants before the European settlement. The Native Title Act 1993 (Cth) originally did not make allowances for pastoral leases. These leases were handed out after the land grab of the 1830’s and 1840’s. British officials made it clear that the land was not owned by exclusive tenure but was owned by the Australian public run by the government. Land was leased to graze animals but not to own exclusively. The land would belong to the Australian people. Land Acquisition Act 1989 (Cth) and Land Acquisition Act 2008 (NT) • The Land Acquisition Act 1989 (Cth) and Land Acquisition Act 2008 (NT) The Land Acquisition Act 1989 (Cth) and Land Acquisition Act 2008 (NT) are similar pieces of Commonwealth and Northern legislation. Under the Land Acquisition Act 1989(Cth) s41 acquisition can be made by a compulsory process. The land targeted for targeted for acquisition as stated in the Lands Acquisition Act 1989 (Cth) s41(2a) shall be identified and s(2b) it shall specify the public purpose for which it is being acquired. As identified in Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232 the Lands, Planning and Environment used the power given by the Act to the Minister to acquire land in the Northern Territory under the Lands Acquisition Act 2008 (NT) s43(1) The Minister wanted to acquire the land using the statement ‘for any purpose whatsoever’. The court was to make a decision on whether the words ‘for any purpose whatsoever’ could be used to acquire this land for the purpose for it to be sold or leased for private use. The court dismissed the appeal and ordered the appellants pay costs to the Northern Territory. This case identifies that land can be compulsorily acquired even if there is native title interest. Relevant Case Law • Wik Peoples v Queensland (1996) 187 CLR 1 In the case Wik Peoples v Queensland (1996) 187 CLR 1, the Wik people won the rights of co-existence of interest on land that was leased for pastoral purposes. This decision quashed the notion of extinguishing native title and that the land could be co-existed between pastoral and native rights, in particular the rights to perform ceremony or to gather foods or medicine. The Wik case gave great concern as to native title. South Australian Minister Senator Minchin asserted that freehold title is not safe from native title and confusion as to what are the consequences of the Wik decision abounds. This type of information could be seen as misinformation and scaremongering. Graham Hiley states that: Contrary to popular belief, the High Court’s decision did not conclude that the Wik people or Thayorre people or for that matter any Aboriginal people in Australia have native title; and did not remove the existing rights of other Australians, in particular the holders of pastoral leases. All that the decision did was to hold that the granting of a pastoral lease, whether or not the lease has now expired (or has otherwise been terminated), did not necessarily extinguish all native title rights and interests that might otherwise exist. Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (‘Yorta Yorta case’) The Yorta Yorta case made native title claim to the Federal court of Australia for land and waters in Northern Victoria and Southern New South Wales. The Federal Court dismissed their claim on the basis that the people had lost their traditional connection with the land. The case of the Yorta Yorta was taken to the High Court of Australia on appeal from the Federal Court of Australia where the case for native title was dismissed. The High Court of Australia in assessing the case the Justices held that native title should not be part of the common law as defined in the Native Titles Act (Cth) 1993 s223(1)(c), as this would mean native title has it’s origins in common law. The High Court dismissed the appeal. In 2004 the Victorian Government led by the Attorney General made a deal with the Yorta Yorta people outside the native title process. The agreement was kept out of the courts and would be co-managed with the Government and the Yorta Yorta people . The implication of the actions taken by the Government in this case, could mean that at any time a government could enter into a similar arrangement outside of the courts. Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232 (‘Griffiths case’) As identified in the Griffiths case Lands, Planning and Environment Minister used the power given by the Lands Acquisition Act 2008 (NT) to compulsorily acquire land from the native title in the Northern Territory under the Lands Acquisition Act 2008 (NT). The Minister applied to acquire seven lots in the town of Timber Creek, Northern Territory, using the scope of the power to acquire land ‘for any purpose whatsoever’. The appeal was dismissed and the appellants were ordered to pay costs to the Northern Territory. This case identifies that land can be compulsorily acquired by the government even if there is a native title interest. Potential Liability In my opinion, the client would not appear to have any potential liability since the terms defined under the Native Title Act (Cth) 1993 do not appear to have been met. The specific sections of the Act that provide the test here are: 1. NTA s223(1)(a) – rights and interests are possessed under the traditional laws acknowledged and the traditional customs observed by the Aboriginal peoples and Torres Straits Islanders; and 2. NTA s223(1)(b) – the Aboriginal peoples or Torres Strait Islanders by those laws and customs, have a connection with the land or waters. Based on the information provided, the client’s land would not appear to have been involved and traditional customs observed for the land in question given the location of said land (within 50 km of the Melbourne CBD) and therefore not pass this test.