Right to Land
Land law is the most important part of Aboriginal law. It defines who you are and where you belong. Even before the famous Mabo case (Mabo & Anor v Queensland (1992) 175 CLR 1), Australian society had begun to recognise the continuing importance of land to Aboriginal communities by passing ‘land rights’ legislation at state and territory levels. This development arose from the Woodward Royal Commission into Aboriginal Land Rights in the Northern Territory which was established following the defeat of Aboriginal claims to possessory or native title in the Federal Court’s Milirrpum v Nabalco Case in 1971.
In the Mabo case it was finally recognised that Australians had not settled in an empty land (terra nullius) but that this land was inhabited by people with their own laws, including laws which defined their rights to the land. The High Court found that much of this law had been ‘extinguished’ by the massacre of whole tribes and the dispossession of Aborigines from their lands under Australian law, but where Aborigines had survived and maintained a link with their lands, their rights to their lands had survived and were now to be recognised as part of Australian law.
Following the Mabo case, the Commonwealth government passed the Native Title Act 1993 (Cth) Developments which led up to this legislation have been document by Aboriginal activity Gary Foley on his Koori History Website ‘The Road to Native Title: The Aboriginal Rights Movement and the Australian Labor Party 1973-1996‘. One of the most important things the Act did was to legalise all past actions in taking land from Aborigines, subject to a right of compensation for land taken contrary to the Racial Discrimination Act 1975 (Cth) since 1975. However, it also enables Aborigines to lay claim to land that is left by showing that they have maintained their traditional links with their land. The procedures are very long and involved. Any claim must first pass a stiff ‘registration test’ before the application can begin. Passing this test gives the Aboriginal claimants the right to negotiate about such things as mining on their land.
Both the registration test and the claims process have been made even more difficult with amendments to the Act which followed the of Wik case (Wik Peoples v Queensland (1996) 187 CLR 1). This case decided that native title could co-exist with interests in land created by pastoral leases which cover a large part of Australia. Because of alleged discrimination against Aboriginal property rights, the Commonwealth government was asked to ‘explain’ these amendments to the Native Title Act by the UN Committee on the Elimination of Racial Discrimination.
Very few contested native title applications have been successful. No native title application in Tasmania has ever passed the registration test. Claims are increasingly being settled by agreements between the Aboriginal claimants and people affected by the claim.
Tasmanian Aboriginal land
The Aboriginal community in Tasmania was granted a number of small parcels of land under the Aboriginal Lands Act 1995 (Tas) (s27). ‘Aboriginal land’ under that Act consists of land of important historical and cultural significance to Aborigines such as Oyster Cove and Risdon Cove near Hobart; Wybalenna on Flinders Island where many tribal people perished in the early 19th century; various mutton-birding islands in the Bass Strait and some inland cave sites. A list of the sites can be viewed in Schedule 3 of the Act. This land is held in trust for the Aboriginal community by a statutory body, the Aboriginal Land Council of Tasmania (ALCT) (ss5 and 6), which is elected by members of the community (Part 2, Div 2). The land cannot mortgaged by ALCT (ss27 and 30), and local Aboriginal groups can be involved in its management (s31). There are rights of pedestrian access to the land for non-Aboriginal people, and the state government has reserved rights to build roads, and erect fences on the land (s27).