Australian Aboriginal rights
by Charles Lane
Australian Aboriginal people have recently had their customary rights to land reaffirmed in the courts and by statute. This had resulted in much of their ‘country’ being handed back along with an enhanced sense of self-determination. However, they are still faced with the challenge of using their lands to reinforce their cultural traditions, working those lands for improved social welfare and dispelling the prejudices of other Australians.
Australia Advances
Overturning terra nullius has completely transformed the context within which Aboriginal Australians are able to assert their customary claims to land. Following judgement in the Mabo case of 1992 in which the High Court decided that Aboriginal peoples owned all of Australia when English settlers first arrived about 200 years ago. In response to this decision the Australia government brought in the Native Title Act of 1993 that not only acknowledges Aboriginal customary rights to land, but also provides the means by which claims can be made.
Aboriginal Australians were forced to challenge national laws because defendants could claim ‘no case to answer’. Through selection of the Mabo test case they have been able to bring about reform in the law that serves the interests of all customary land claimants. This was later extended by the High Court in the Wik case of 1996 in which affirmation was given that customary and statutory rights could co-exist on pastoral leases. This has prompted a national debate about the extent of native title and its relationship to the nation’s economy.
Recognition of customary rights has opened the door to new relationships between customary land holders and the state, and also between divergent and often competing land user groups. Australia’s Native Title Act provides scope for negotiated settlement between these groups. It is also relevant where there is a mix or shared rights to land as found on the Cape York Peninsula in the state of Queensland. Aboriginal Australians of this area were able to negotiate with other interests (grazing, conservation) and agree on principles and a process to determine the extent and nature of land use by each party.
The Cape York Heads of Agreement of 1996 offers an example of how divergent interests can find a way to share lands for mutual benefit independent of government.
