Are Indigenous Land Rights adequately protected in Australia?
On the 30th of April 2014, The Australian News reported that a loophole has been exploited to efficaciously change by reversal the extinguishment of native rubric for Land bought by the Indigenous Land Corporation. There’s ne’er been any extinguishment of native rubric as S.47A of the Native Title Act [ 1 ] was used by the tribunal to let extinguishment to be “disregarded” . Harmonizing to Professor McIntyre, “the land was now efficaciously for the benefit of Autochthonal people that any anterior extinguishment that occurred by the other grants could be disregarded.” [ 2 ] This shows that there’s no extinguishment of native rubric.
2 Historical Background
Native rubric is defined as acknowledgment by the Australian legal system of the traditional rights and involvements to land and Waterss of Aboriginal and Torres Strait Islander people harmonizing to their traditional Torahs and imposts. Australia was colonized by Britain in 1788, the result of the ‘terra nullius’ philosophy [ 3 ] on natives was to dispossess them off their traditional fatherlands and forced to shack on authorities militias. The Colonial Governor assumed ownership of all lands, rivers and seas under the rubric of the Crown, and imposed English jurisprudence to colonise and regulate the settlement. [ 4 ]
3Arguments for Indigenous Land rights are adequately protected
3.1 Provision of statute laws
Autochthonal land rights are adequately protected by statute laws. Legislations are better protection of human rights as they could easy be reformed or adjusted to suit alterations in clip and fortunes. For illustration, The Native Title Act [ 5 ] allowed Natives to derive acknowledgment of land and Waterss under S.223. [ 6 ] This Act radically recognizes the connexion of the Aboriginal people with their lands and allows them to claim their land.
In add-on, the Indigenous land rights are besides protected under Racial Discrimination Act 1975. [ 7 ] Australia’s duties under Convention on the Elimination of Racial Discrimination ( CERD ) are incorporated into Federal jurisprudence through the Racial Discrimination Act. The Autochthonal land rights are protected under S.9 ( 1 ) of this Act and Article 5 ( a ) of the CERD which prohibits racial favoritism [ 8 ] in relation to belongings rights by reconstructing of, giving compensation for, land taken from natives and ensures the autochthonal people are treated equitably irrespective of their cultural beginnings.
Furthermore, Aboriginal Land Rights Act 1976 [ 9 ] gives the premiss upon which Autochthonal people in the Northern Territory can claim the rights to have the land based on their traditional occupation. [ 10 ] Since so approximately 50 per centum of the land in the Native Title has become Aboriginal land every bit good to 85 per centum of the coastline. A big proportion of the staying land mass is capable to Native Title involvements. [ 11 ] This illustrated that Indigenous Land rights are adequately protected by statute law.
3.2 Provision of Case-Law
Autochthonal land rights are adequately protected by case-law. A new case-law could be created to react to new state of affairs and developed on the topographic point. Judges develop a new case-law to protect the rights of the autochthonal people. For illustration, in the instanceMabo V Queensland ( No.2 )[ 12 ] , the Judgess in the High Court pattern judicial dictum and the tribunal recognize the entitlements of native rubric claim for the first clip. [ 13 ] It was held that a limited signifier of native rubric exists and ‘doctrine of terra nullius’ is no longer valid. A good case-law had been codified by the Parliament utilizing the complementary statute law. Therefore, the determination acknowledges autochthonal land rights and restores the land rights to the natives. [ 14 ]
Besides, in theWik Case 1996, [ 15 ] the high tribunal pattern judicial dictum to let autochthonal to claim back their land rights. [ 16 ] The High tribunal besides enabled Natives to claim native rubric rights over pastoral rentals, although the rental would last any struggle between the two. This ensures that they are capable to acquire back their land rights.
Furthermore, InKoowartaCase, [ 17 ] It concerned the constitutional cogency of parts of the Racial Discrimination Act 1975, [ 18 ] and the prejudiced Acts of the Apostless of the Government of Queensland in barricading the purchase of land by Autochthonal people in Northern Queensland. The tribunal held that it was valid, as racial favoritism is an international concern. [ 19 ] Therefore, it falls under s.51 ( xxix ) external matter, and it was followed byTasmanian DamCase. [ 20 ] In this instance, the tribunal made the same determination and it is to continue cultural heritage and anything of international concern. [ 21 ] Hence, case-law had been continuing the 2nd component of the Rule Of Law which is equality before jurisprudence where everyone is treated every bit.
3.3 Provision of Executive Body
Autochthonal land rights are adequately protected by the executive organic structure. The executive organic structure played a outstanding function in giving Autochthonal people land rights. For illustration, the National Native Title Tribunal ( NNTT ) [ 22 ] aids in the execution of the Native Title Act. [ 23 ] The Tribunal aids party in dialogues about proposed developments and doing determinations on proposed grants. [ 24 ] This is of import because the tribunal aid the natives to understand the nature, benefits and legal demands that have to be satisfied before natives agreed.
In add-on, the Indigenous Land Council ( ILC ) established to get and pull off land in mode that benefits Aborigines. [ 25 ] The council is funded through the Indigenous Land Fund ( ILF ) and protects those who could non claim their traditional lands under native rubric. [ 26 ] This ensures that autochthonal people can get and allow land for societal and economic benefit.
Besides, The Northern Land Council ( NLC ) [ 27 ] is an independent statutory authorization of the Commonwealth. It is responsible for assisting Autochthonal peoples in the Northern Territory to get and pull off their traditional lands and seas. Landowners must give informed consent before any action is taken to impact their lands and seas. Achieving informed consent besides ensures affected Aboriginal communities and groups have the opportunity to voice out their positions. [ 28 ]
4Arguments against Indigenous Land rights are adequately protected
4.1 Land Rights of Aborigines are non adequately protected by legislative act
On the other manus, other may challenge that the land rights of Aborigine are non adequately protected by statue. Native Title Act does non supply equal acknowledgment of Aborigines land’s claims due to the power of the Crown to snuff out traditional ownership of land. [ 29 ] Aboriginal people can merely claim vacant-government-owned land ( ‘Crown Land’ ) . Autochthonal land rights are non protected under S. 23 A of the Native Title Act [ 30 ] . Hence, the natives are at the disadvantage side as there are cardinal defects in the Native Title Act and this is bad because the autochthonal people have limited rights.
Furthermore, some may reason that Indigenous land rights is non adequately protected as the High Court’s reading is concluding and can non be overwritten by remedial statute law. For illustration, in Racial Discrimination Act S.18 portion c [ 31 ] and vitamin D, [ 32 ] the diction usage is excessively wide and general. The Judgess in the tribunal can construe the equivocal words any ways they like and they might non in favour of the natives. Hence, it does non specifically protect autochthonal people as the tribunal can construe it in favour of the Commonwealth and it besides neglected aborigine’s land claims. This shows that land rights of the Aborigine are non adequately protected.
4.2 Autochthonal land rights are non adequately protected by authorities organic structure
On the contrary, the autochthonal land rights are non adequately protected as the Native Title Tribunal favour the mineworkers. [ 33 ] The native rubric holders are at the disadvantage side because they do non hold the power to state no to the mineworkers alternatively they merely have a right to negociate with the company in the 6 months period under S.33 of the Native Title Act. [ 34 ] Furthermore, under S. 38 ( 2 ) , [ 35 ] if understanding can non be reached within the dialogue period and the affair will travel to adjudication by the Tribunal. However, the excavation companies gain benefit because the National Native Title Tribunal propensity towards favouritism to the mineworkers. [ 36 ] Hence, the autochthonal people are in a really unfavourable state of affairs in relation to Native Title and the land rights of the natives are non adequately protected.
5 Conclusion & A ; Recommendation
Autochthonal land rights are adequately protected in Australia as there is a assortment of statues, case-laws and authorities organic structures have been established to give greater statutory protection unto Indigenous land’s right.
The Native Title Act must be amended in order to redness the cardinal defect of this act. One manner is to take the subdivision 23A [ 37 ] that extinguished native rubric to significantly set natives in a more powerful place. Following, the continuance of the application procedure for native rubric must be shorten as there is tonss of older applicant base on balls off or unable to give grounds by the clip an application comes for finding. [ 38 ] Furthermore, excavation and other developments on Aboriginal land should continue merely with the permission of the Aboriginal land proprietors and that if excavation companies proceed without the permission would be required to pay royalties to the traditional land proprietors. [ 39 ]
– Lumb, R, D, The Constitution of the Commonwealth of Australia Annotated, ( Butterworths, 1986 ) , pg 034-036, 025, 035, 200.
– Lane, P, H, An Introduction to the Australian Constitution, ( 5Thursdayedn, The Law Book Company Limited, 1990 ) pg.99.
– Winterton, G, Lee, H, P, Glass, A, Thomson, J, Australian Federal Constitutional Law, ( 1stedn, LBC Information Services 1999 ) pg, 52, 101- 106.
–Bailey, G, Legal Studies, ( 1stedn, Greg Eather in association with the Adelaide Tuition Centre, 2005 ) pg. 147-148.
– Nettheim, G, Human Rights for Aboriginal people in the 80s, ( Legal Books Pty Ltd, 1983 ) pg.46
–Bash, B, Legal Studies SACE 2, ( 5Thursdayedn, Adelaide Tuition Centre, 2008 ) pg.80
– Australian Human Rights and Equal Opportunity Commission,‘Central concern of the International Convention on the Elimination of All signifiers of Racial Discrimination to which Australia was a signer in 1966’, ( 2005 ) , https: //www.humanrights.gov.au/cerd-index # h6 accessed 1 Aug 2014
– Northern Land Council, ‘Land Rights’ , hypertext transfer protocol: //www.nlc.org.au/articles/info/aboriginal-land-rights-northern-territory-act-1976/ accessed 1 Aug 2014
– Kenna, Jonathan, ‘Extinguishment of native rubric and compensation’ , hypertext transfer protocol: //www.nfsa.gov.au/digitallearning/mabo/info/extinguishmentNtCompo.htm accessed 1 Aug 2014
– Northern Land Council, ‘What we do’ , hypertext transfer protocol: //www.nlc.org.au/articles/info/what-does-the-northern-land-council-do/ accessed 1 Aug 2014
– The National Native Title Tribunal, ‘What the NNTT does’ , ( 2010 ) , hypertext transfer protocol: //www.dmp.wa.gov.au/documents/WHAT_THE_NNTT_DOES.pdf accessed 1 Aug 2014
– Neate, G, ODea, D, The Native Title Seminar 2010, ‘The maps of the National Native Title Tribunal’ , ( Native Title Tribunal, 2010 ) pg. 15-16 hypertext transfer protocol: //www.nntt.gov.au/Information % 20Publications/The % 20functions % 20of % 20the % 20National % 20Native % 20Title % 20Tribunal.pdf accessed 1 Aug 2014
– The Department of Social Services, ‘Autochthonal Land Corporation’, ( 2013 ) ,
hypertext transfer protocol: //www.dss.gov.au/our-responsibilities/indigenous-australians/programs-services/land-native-title/indigenous-land-corporation accessed 1 Aug 2014
– Autochthonal Studies Program, ‘Autochthonal Land Fund’, ( 2011 ) , hypertext transfer protocol: //www.atns.net.au/agreement.asp? EntityID=1645 accessed 1 Aug 2014
– Taylor, F, ‘Native Title Tribunal disadvantages Indigenous Australians’ , ( 2007 ) , https: //app.griffith.edu.au/news/2007/02/26/native-title-tribunal-disadvantages-indigenous-australians/ accessed 1 Aug 2014
– Trenwith, C, ‘Mining giants accused of strong-arming autochthonal groups’ , ( 2011 ) , http: //www.watoday.com.au/wa-news/mining-giants-accused-of-bullying-indigenous-groups-20110718-1hlj8.html accessed 1 Aug 2014
– Schliebs, M, ‘New native rubric claims to work loophole’ , ( 2014 ) , http: //www.theaustralian.com.au/national-affairs/indigenous/new-native-title-claims-to-exploit-loophole/story-fn9hm1pm-1226900143578 accessed 1 Aug 2014
– Kirk, M, ‘Aboriginal Land Rights In The Northern Territory’ ,
hypertext transfer protocol: //www.aiatsis.gov.au/lbry/dig_prgm/treaty/atc/m0027781_3_a.rtf accessed 1 Aug 2014
– Year Book Australia, ( 1995 ) ( ABS Catalogue No. 1301.0 ) , hypertext transfer protocol: //www.abs.gov.au/Ausstats/abs @ .nsf/Previousproducts/1301.0Feature % 20Article21995? opendocument accessed 1 Aug 2014
– Byrne, A, National Native Title Tribunal Occasional Papers Series No.3/2002, ‘The prolongation of unwritten grounds in native rubric claims’ , ( Native Title Tribunal, 2002 ) pg. 5-6 hypertext transfer protocol: //www.nntt.gov.au/Information % 20Publications/The % 20perpetuation % 20of % 20oral % 20evidence % 20in % 20native % 20title % 20claims.pdf accessed 1 Aug 2014
– Lisa Strelein, ‘Land, Rights, Laws: Issues of Native Title’, ( 1998 ) hypertext transfer protocol: //www.aiatsis.gov.au/_files/ntru/publications/issues/ip98n20.pdf accessed 1 Aug 2014
Table of Legislative acts
– Native Title Act 1993
–S.47A of the Native Title Act 1993
– S.223 Native Title Act 1993
– Racial Discrimination Act 1975
– S. 23 A of the Native Title Act 1993
– s. 18 C Racial Discrimination Act 1975
– S. 18 D Racial Discrimination Act 1975
– S.33 of the Native Title Act 1993
– S.38 ( 2 ) of the Native Title Act 1993
– Aboriginal Land Rights Act 1976
Table of Cases
Koowartav Bjelke-Petersen [ 1982 ] HCA 27
Commonwealth V Tasmania[ 1983 ] 158 CLR 1
Mabo V Queensland[ No 2 ] [ 1992 ] 175 CLR 1
The Wik Peoples v The State of Queensland & A ; Ors[ 1996 ] HCA 40