Question

Native title has provided long overdue recognition of Indigenous land rights. On many occasions, however, it has failed Indigenous claimants. Discuss.

Answer 1

Native title legislation is not without issues. There are several problems which challenge native title parties and those involved in finding a solution.

The Native Title Act was originally handed down so that Aboriginal people could negotiate and mediate to resolve recognition of Aboriginal peoples' ongoing connection with their land.

But as more and more native title cases take many years, sometimes decades, to be resolved in courts rather than by negotiation, critics of the Act ask the Australian government to review and amend it.

The Act has caused division within Aboriginal communities because it's often misunderstood and mostly fails to include the Aboriginal perspective. It deals with Aboriginal people’s rights to land and waters but on 'white' terms that do little to advance Aboriginal rights. On the contrary, some Aboriginal people claim that it "denies Indigenous rights and is deeply embedded in Australian political institutions". [1]

"It's a whitefella legal construct," agrees Glen Kelly, a Noongar man heading the South West Aboriginal Land and Sea Council in Western Australia. "What it is actually designed to do, in my view, is not to enliven traditional law and custom but to control traditional law and custom." [2]

One of the toughest requirements of the Act is that claimants have to be able to prove a continuity of traditional laws and customs on the land being claimed since European settlement.

Native title is a weak form of title – it can be, and in many cases has been, ‘extinguished’ by all previous freeholding, by contemporary government action, or by ‘surrender’. It can only be claimed where other legal title (such as freehold) does not exist. And native title rights are typically non-exclusive, giving little opportunity to control access to land or its use.

Source: Native title issues & problems - Creative Spirits, retrieved from https://www.creativespirits.info/aboriginalculture/land/native-title-issues-problems