AUSTRALIAN NATIVE TITLE LAW AND RIGHTS OF INDIGENOUS PEOPLE
This research paper discusses the evolution of Australian policy and practice concerning the rights of Aborigines and other indigenous peoples with respect to land, the functioning of, and the pros and cons of taking recourse to, National Native Title Tribunals (NNTTs) and the right of indigenous peoples to negotiate (RTN) regarding land use and its economic benefits. In the early 1990s the High Court by its decisions in certain landmark cases recognized after nearly two centuries of denial that native Australians had rights with respect to lands they had traditionally occupied. By enacting the Native Title Act 1993, ch. 110 (the '93 NTA), the Commonwealth Parliament established mechanisms for determining the validity and scope of native land title claims. However, grave uncertainty and political controversy surrounded implementation of the '93 NTA and the activities of the NNTTs which led to the passage of the Native Title Amendment Act 1998 (the '98 Amendments). The general effect of the '98 Amendments was to circumscribe greatly the land rights, and in particular the statutory RTN, of indigenous peoples while at the same time streamling the NNTT's procedures and affording greater scope for privately negotiated private land use agreements (Indigenous Land Use Agreements or ILUAs). ILUAs are increasingly the most efficacious method available for resolving disputes concerning the land rights of indigenous peoples.
Traditional View of Aboriginal Land Rights
Prior to the arrival of white Europeans in the 1770s Aborigines and other ancient tribal peoples had physically been present and in possession of land in Continental Australia and adjacent islands for up to 40-50,000 years. Western concepts of private property rights were unknown to them. However, their rights of access to, and use of, land had important spiritual as well as practical significance for them. ...