Native Title and its ramifications for Australian Law
The Torrens Title System: A system devised to recognise provable ownership of land by Law. Australia initially adopted the British system using Title of Ownership, deeds of grant and following the doctrine on tenure where the Crown, is the ultimate owner of all lands (Gray et al. 2009). However, it was a large problem with legal fees, proof of ownership and forgeries until the Government managed resister was established enabling easier transactions and trust in ownership rights. The Torrens Title System, introduced in Queensland in 1861, is a register of real property holdings that is maintained by the State. The system creates indefeasibility by guaranteeing title against past wrongdoings by registration of land titles with the Land Titles office to guarantee ownership and prevent fraud. Once signed, title cannot be repudiated. This system replaced the use of common law to solve disputes over real property. Native Title as described in the NTA 1993:
Native Title was forced into being through the establishment of the Native Title Act in 1993 after the Mabo ruling granting the Meriam people Rights to their ancestral lands on the Murray Islands. Section 223 (1) of the act states - 'The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: a. the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and b. the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and c. the rights and interests are recognised by the common law of Australia.' NTA 1993
The concept of Native Title:
The concept of native land ownership has been a simmering subject on many a political agenda since 1827, (R v Tommy 1827), and only came to a head 166 years later, when dear old Eddie Mabo discovered his lands were not his own, took the Queensland Government to court and won the right of Native Title changing Australian history for indigenous peoples. Until then, the Terra Nullius doctrine had been assumed and used to keep all lands and waterways care of the Crown, often leaving indigenous communities dispossessed and their land rights extinguished. Terra Nullius:
Taken from the Latin expression from Roman Law meaning ‘land belonging to no one’, Terra Nullius was wrongfully assumed on the land of Australia post colonisation with regard to the rights of the indigenous people. Terms such as ‘empty’ and uncivilised’ have also been used in conjunction with Terra Nullius, all of which were overturned by Mabo. The British Crown claimed Terra Nullius on Feb 7 1788 at Sydney Cove when the First Fleet arrived with a British flag ready for claiming sovereignty and ownership. It was noted to be ‘desert and uncultivated’ and required settlement. No recognised sovereign power was noted and hence, British Law was imposed. Native Title requires equal treatment for indigenous peoples with regard to the law and their rights over land. The Law is clarified further by rejecting any position in law that could discriminate against indigenous peoples through the denying of pre-colonisation rights that have continued to be exercised. The key ideas from the subsequent Native Title Act 1993 and The Native Title Act Amendment in 1998, allow indigenous people to be involved, with conditions, in the negotiation of traditional lands and waterways. It now holds clarification for extinguishment, the recognition and protection of native title and industrial and agricultural leases on claimant’s traditional lands. Conversely, it also places restrictions on native title claims providing security of tenure to non-indigenous Australians holding pastoral leases and other land titles....
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