By Paola Totaro
LONDON, Sept 13 (Thomson Reuters Foundation) - More than two centuries after the British colonization of Australia, the High Court of Australia decided in 1992 that the common law could recognize the land and water rights of Aboriginal peoples under traditional law and custom.
Known as the 'Mabo' case, this judgment overturned the long held view that when Australia was settled it was 'terra nullius' or 'practically unoccupied'.
The judgment paved the way for intense negotiation and discussion between Aboriginal people, government and business interests and a year later the Federal Parliament passed the Commonwealth Native Title Act 1993.
The law sets out the way Australia's indigenous people can seek native title, based on a litigation process but with an emphasis on agreement. So far, the majority of determinations have been made by consent.
Native title in Australia is under pinned by recognition that:
- Australian common law will recognize native title of indigenous people and can be protected under that law.
- When the British Crown took possession of each of the Australian colonies (now a federation of states and territories), it acquired sovereignty over native title. This means that in some cases, native title can be wholly or partly extinguished by laws or executive grants (such as Crown land or perpetual leases) that might be inconsistent with native title.
- For native title to be recognized, indigenous people must show that they have had a continuing connection with the land and waters in question and show these interests under traditional law and custom.
- The nature of native title under common law is that it is 'communal' in character and cannot be bought or sold. However it can be surrendered to the Crown and can also be transmitted from one group to another according to traditional law and custom.
- The Native Title Act also created the National Native Title Tribunal which hears claims and acts as a mediating and arbitration body. (Reporting by Paola Totaro, Editing by Belinda Goldsmith; Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers humanitarian news, women's rights, trafficking, property rights and climate change. Visit news.trust.org)
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