Aboriginal Determination: Native Title Claims and Barriers to Recognition

 

Zia Akhtar
Grays Inn
8 South Square
London
pagraduate@gmail.com

 

 

The Australian government has proposed a referendum in 2012 to decide the constitutional status of its indigenous people. There is at present no mechanism to define the indigenous people as a domestic or foreign entity of the Commonwealth. This is an important issue because other settler governments have developed a framework to implement their relationship with the native people. As a result, it is difficult prove title to land that has been abrogated by the deeds of the settlers. In Mabo v Queensland (2),the Commonwealth government was found to have breached its fiduciary duty to the Aboriginal peoples. The judgment led to the Native Title Act 1993 that established the process of asserting native rights that were held to coexist with pastoral ownership. The promulgation of the Native Title Amendment Act 1998 reversed this process and augmented the powers of non-native landlords by providing the device to extinguish native rights. In Western Australia v Ward, a mining lease was held to have precedence over native title that was adjudged to be part of a bundle of rights. In implementing the Native Title Act the issue turns on the determination of the ties to land/ sea that the government allows to the Aboriginal peoples. The judgment in Harrington-Smith on behalf of the Wongatha People v Western Australia indicates that title can be excluded on procedural grounds and that there was an incompatibility between the claims of the Aboriginal peoples and the settlers’ claims. The road map towards a more effective regime of proving title can be achieved if the Aboriginal peoples are granted recognition as a nation in the Constitution and a treaty is signed with them.

 

Declaration of Rights of the Indigenous Peoples 2007, International Covenant of Civil and Political Rights 1966, Mabo v Queensland (2), Native Title Act 1993, Racial Discrimination Act 1975, Self determination.

 

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