Originally published by RiAus on 9 July 2015.

Native title claims in Australia are met with a number of reactions; fear, confusion, misunderstanding, support or admiration, it is a tricky area with a lot of legal and social implications to the greater public. But, that doesn’t really explain what they actually are and the process. So settle in, here’s a breakdown of Native Title in honour of NAIDOC week 2015.

What is Native Title?

Native title is the way that we legally and socially recognise the traditional rights and interests to the land and waters of Aboriginal and Torres Strait Islanders. Through claims and the Native Title Act 1993, these Indigenous Australians are able to reclaim their traditional homes and have their homes and ties to the land legally recognised. This is incredibly important for a group that is so immensely tied to the land through every pore of their being. Whilst it in no way erases the tragedies of the past, native title claims can help to restore Aboriginal and Torres Strait Islanders to their ancestors’ lands.

The History of Native Title

For a country to be settled in 1770, it must fit one of three descriptions:

• The country is uninhabited, therefore anyone can make a claim.
• The country is inhabited and the Europeans can purchase land from the Indigenous owners, but they cannot take the land.
• The country is inhabited and the Europeans can claim the land by conquest or invasion, in other words, war. But the rights of the Indigenous peoples must still be respected.

However, when Europeans first came to Australia none of these terms were honoured, instead they claimed terra nullius, effectively meaning that they treated the land as uninhabited. This was possible due to the fact that Indigenous Australians weren’t viewed as human. This meant that all land was viewed as unowned, and claimed by the crown.

However, in 1992 the views on this land ownership completely changed. It was in 1992 that the Mabo decision was made. This occurred when Eddie ‘Koiki’ Mabo, a Torres Strait Islander, challenged the legal and social assumptions of land rights. So, alongside the rest of the Mer folk, Mabo decided to challenge the ownership and legality of land ownership in the Torres Strait Islands. It took 10 years, but finally, in June of 1992, the High Court acknowledged that terra nullius did not exist when the Europeans arrived in Australia. Therefore, the peoples’ rights to the land were granted, and ownership of traditional country was settled. This also opened the door for the government to pass the Native Title Act 1993. There are currently 396 active Native Title claims and 767 Future Applications (this refers to applications that will affect or change native title rights and interests).

How are Native Title Claims Processed?

Applying for native title claims is a long and complicated process. Firstly, the claimants must lodge an application with the high court. Following this, they must prove that they are eligible for native title and that their rights have not been extinguished. Following this, an anthropologist will verify their claims of cultural continuation. Following this application and years of research, the case may then go to court. However, even if all of the information has been gathered, it can take up to twenty years for a case to be heard in court. Contrastingly, if two applications specify the same area of land, then a case can be rushed and pushed forward. This often happens as traditional boundaries were not straight or well-defined in the ways that Europeans see them. The boundaries are not a simple fence between two locations, and so two groups of Indigenous Australians may both have claims within the same region.

Requirements of Native Title

Native title can be awarded when:

1. Cultural continuation has been proven. This means that through looking at historical records the traditional laws and customs of the group have been continued on into present practices. They do not have to mirror each other, but rather a logical and practical social evolution of laws and customs must be displayed and indicated.
2. It can be shown that these rights haven’t been ‘extinguished’. This occurs when the government sells the land to another property holder, in other, no native title claim can be made to your house if you have bought it. It is only government property and land (e.g. Pastoral Land) that has not had its rights extinguished.

If there has been partial extinguishment of native title, then individuals are still able to claim some rights. They can assert their right to either:

• ‘Exclusive’ rights. This is when the native title holders are able to control who has access to the region.
• ‘Non-exclusive’ rights. This is when the native title holders are not able to control who has access to the land.

The Science in Native Title Claims

For cultural continuation to be demonstrated, anthropologists will immerse themselves into the Indigenous peoples’ culture. They can spend two years or more getting to know the cultural practices and beliefs of the people. This ethnographic practice is lengthy and demands the trust and acceptance of the community being observed. This is part and parcel of ethnographic fieldwork across all areas of anthropology. However, as the findings will eventually end up in court (not all anthropological studies are conducted for the sake of legal practices), the anthropologist is in a much more tentative position when disclosing valuable information. A great example of this is the Hindmarsh Island Bridge controversy. The leading anthropologist was found in contempt of court due to her inability to disclose ‘Secret Women’s Business’.

Once information is gathered from the present owners of the land, their practices must be contrasted against historical documents and recordings of Indigenous life. However, this too can have some difficulties as many historical documents were written by Europeans, whom, as mentioned previously viewed Indigenous Australians as something less than human (just think of the Stolen Generation). Past texts are rife with terms such as “primitive” and “barbaric” when talking about any culture that was not white and European. But, they can still be an invaluable tool when trying to establish cultural continuation in native title claims.

Native title claims rely on a mix of science and law. Through this unique and complicated mix of social and legal practices, the rights and interests of Indigenous Australians can be recognised and awarded. And these fantastic and diverse people can embrace their ties to their land and country.