Connecting with the law

Introduction

Native Title Act 1993 is a Commonwealth Consolidated Act legislated under the authority of Australian Government.   Native Title Act 1993 has been a guideline and reference for solving many land rights cases as the provisions of the said Act have been quite descriptive, flexible and negotiable which means depending on the case study, the relevant Section provisions have been applied to pass the decrees in favor of plaintiffs or defendants and in this manner, Native Title Act 1993 has been serving and protecting the land and its aboriginals.

From the concept of Native Title, it has been defined in Section 223, followed by Section 224 which defines the term Native Title holder and Section 225 determines the Native Title.  Most importantly from Section 10 to 60AC, there is a detailed description of provisions of Native Title in Part II of Native Title Act 1993 while all the other Parts explain the management and judiciary powers of Federal Courts, a significant effort has been laid down in Part II of Native Title Act 1993 which contains an in-depth provisions about land agreements, objections, terms and conditions, procedures of land agreements,  reservations, leases, management of waters and air space and fees for the services provided by native title bodies corporate in case of settlement of Native Title appeal cases. Every criteria has been detailed for the convenience of attorneys and judges for facilitating suitable justice to the applicants who wished to gain the original native title in the capacity of aboriginals.

In the history of Native Title Act 1993, Mabo case v Queensland has been quite a significant case such that Racial Discrimination Act 1975 has been included in Section 7 of Native Title Act 1993.  The decision was pending with the Federal Court  for more than a decade as there were many issues such as racism, gender, communal harmony and protection of tribal have to be protected whereas doctrine of terra nullius which means “land belongs to no one” was put to a great threat.  Canadian political scientist Peter Russell states that political developments and changing western views about aboriginals have been explored in Mabo case and in fact this case surpassed Racial Discrimination Act and courts have been considering every detail from the view point of societal laws and human rights particularly for aboriginals.

Court recognized the Native Title of Meriam people in Mabo case and granted complete statutory rights to the people of Murray Islands.  The decision of court in the Mabo case was criticized stating that the legal system is not in the interest and protection of nation.

“The Mabo decisions and others that followed soon afterward ignited a political firestorm; they prompted the federal government to draft legislation in the form of the Native Title Act (and subsequent amendments) that undid the “damage” the court had wrought; and they led the Court to beat a retreat from its bold attempt to reconcile Aborigines and setder interests by adopting a revisionist historical and legal perspective.” (Arthur J Ray.  (2007) Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism)

Native Title Act 1993 as enactment is quite lengthy and extensive in its provisions which includes both land and water in fixing land rights issue. To state briefly about the Act, it is divided entirely into eight parts. The first part is the preliminary explanation of Sections 1 – 9 , the second part details about Native Title from Section 10 – 60AC, the third part, Applications from Section 60A – 79, fourth part determinations of the Federal Court 79A – 94C, fifth part from Section 95 – 106A  details about Native Title Registrar , Part Six contains National Native Title Tribunal from Section  – 107 – 183 , Part Seven contains the Register of Native Title Claims from Section 184 – 191 and Part Eight contains National Native Title Register from Section 192 – 199.  Part 8A from Section 199A – 199F, Part 11 carries Section 201A – 203FI, Part 12 details about Section 204 to Section 207, Part 13 contains Sections from 208 to 215 and Part 14 about amendment of Acts, and Part 15 contains definitions of key concepts from Section 272 to 253.There are various Divisions within the parts particularly about recognition and protection of native title, land agreements for indigenous people, effects of indigenous land agreements,  lease agreements,  right to negotiate, compensation for acts affecting native title, access rights of claimants in respect of pastoral leases and non-agricultural leases, jurisdiction of courts, financial matters,  intervention of commonwealth minister, mediation of NNIT, powers of Federal Court, appointment of Registrar, purpose and way of operation of Native Title Tribunal, organization of the Tribunal, Management of the Tribunal, Native Title applications and inquiries, appeals to Federal court, right to negotiate appeals, parliamentary joint committees on Native Title and Land Account and there are many descriptive issues that are relevant to each case study of Native Title applications and appeals.

A discussion can made here about the short comings of Native Title Act  1993 whereas going by the above discussion of the parts of enactment, there is no scope for any lenience in provisions or any overlook of legal system for protection of land in Australia.

Prima facie and ipso facto, Native Title Act 1993 (Cth) covers the law of land and waters in Australia in an extensive manner and particularly all the amendments to the Acts have been very well supported for further Native Title legal cases.

Every piece of land and Native Title is under the purview and limitation of Native Title Act 1993 (Cth) and any appeal, application, inquiry or any dispute in the issue of land, sea water or lease agreement which is based on Native Title is under the purview of Federal Court with the application of Native Title Act 1993 (Cth) and the judgment of Federal Court is final.

From the view of a permanent citizen, giving away of land to the credit aboriginals and recognition of Native Title as in the case of Mabo v Queensland (1992)  and abolition of doctrine of terra nullis is unacceptable due to many reasons from nation’s integrity and sovereignty perspective.  An argument and a notion can also be presented here that while immigrants and citizens continue to take the benefit of social status in a country, it does not give rise to the recognition of Native Title unless otherwise proved as in the case of Mabo v Queensland for Torres Strait Islands.

Conclusion

From the view point of High Court of Australia and the unanimous decision of judges  which confirmed the fact that doctrine of tenure is one of the essential principle in Australian land law whereas many argued that recognition of native title was inconsistent.

However, in the present stance of Native Title Act 1993 (Cth) the provisions and descriptions are very vast and in-depth that satisfying these provisions is a very huge task in order to even apply or for appeal for a Native Title and keeping in view of the past difficulties faced by the Australian legal system, as a  complete remedial measure Native Title Act 1993 (Cth) and its provisions have been framed for law and order of Australia.

Reference

Native Title Act 1993

Aboriginal Provisional Government, The Mabo case

Retrieved 16 April 2009

http://www.kooriweb.org/apg/papers7.htm

Indigenous land rights and native title

Retrieved  16 April , 2009

http://www.dfat.gov.au/facts/indigenous_land_rights.html

Native Title Act 1993

Retrieved  16 April, 2009

http://www.austlii.edu.au/au/legis/cth/consol_act/nta1993147/

Land and sea rights

Retrieved 16 April  2009

http://www.nlc.org.au/html/land_native.html