Since the successes of Mabo v Queensland [No 2] (1992)175 CLR 1 (Mabo) and Wik Peoples v State of Queensland and Others (Wik) the gains made by Australia's Indigenous population in the area of land ownership have been somewhat eroded. The mining companies and the pastoralists were even more hostile to native title claims after Wik, when it became clear that under a certain set of circumstances, their leases were not as secure as they had thought they were. In the years following the 1996 Wik decision the new (Coalition) government under John Howard made its intentions towards native title very clear.
Soon after being elected the federal government introduced legislation into federal parliament that if passed, would amend the Native Title Act 1993 (Cth) ('the Act'). By 1998 John Howard had come up with his 'Ten Point Plan'. If passed, it would not only make it harder to claim native title, but would also take away the Indigenous peoples' rights of negotiation over the land they could claim. The Ten Point Plan was eventually passed in 1998 when the federal government threatened a double dissolution of parliament if the Senate did not passHoward's amendments to the Act. The Native Title Amendment Act 1998 (Cth) weakened Indigenous rights to native title in order to reassure the States and Territories (and therefore the miners and pastoralists) of their position and power. See image 1
It was not only in parliament where the gains from Mabo and Wik were being eroded - it was also happening in the courts. Many native title claims have made it to the High Court since the Mabo and Wik cases. This is despite the land rights tribunals that were supposed to mean the disputes could be settled out of court. Some cases that have come before the High Court have not always served to uphold native title claims. Many have narrowed the definitions of who can claim and how, and they have also broadened the scope of how native title can be extinguished. Pressure from State and Territory governments and from mining and pastoral interests have not helped in creating an atmosphere that is open to native title claims. These examples are just two from the many cases that have made headlines in the last decade.
In Fejo Vs The Northern Territory 1998 (Fejo) the High court was asked to consider whether native title could be claimed on vacant Crown land in the Northern Territory that had once had a freehold title attached to it. It was also asked to consider whether native title once extinguished could be revived. Both the Mabo and Wik decisions had said that freehold title automatically extinguished native title and that once extinguished native title could not be revived. The High Court found that freehold title did extinguish native title, even where it had later been revoked. The land had been used in a way that was inconsistent with Indigenous use and co-existence of native title and freehold title was not possible in these circumstances.
The Fejo judgement also upheld the earlier native title cases in that it repeated the assertion that native title could not be revived once extinguished. The High Court decision helped to narrow the scope of native title and to change the position it had held in Australian Law. Native title was no longer set apart from Australian common law; in fact in the Fejo decision native title was referred to merely as a vulnerable 'bundle of rights'.
The High Court decision in Western Australia v Ward (2002) 191 ALR 1 (Ward) was another step in the erosion of native title rights for Indigenous people. Ward was made in relation to a native title claim on land in Western Australia and the Northern Territory by the Miriuwung and Gajerrong Peoples. They had been granted native title on those lands by the Federal Court in 1998 under Mabo, but that decision was then appealed by the Western Australia and the Northern Territory governments in 2000. The High Court had to consider whether extinguishment of native title could be partial (rather than full) and also how extinguishment was to be determined in the future. The decisions that were reached both helped and hindered future native title claims. The Court found that native title could be partially extinguished in some circumstances and could, therefore, become harder to claim. The Court also confirmed, however, that native title could still co-exist with other interests on a piece of land. The Ward judgement also said a new, fairer system of dealing with native title claims was needed.
At the end of 2005 there were over 600 native title cases pending (waiting to be heard). The Attorney general Philip Ruddock announced in November 2005 that legislation would be introduced to speed up the native title claims process. He also said that this legislation would not undermine or change the rights of Indigenous people to make native title claims. As ofSeptember 2006 that proposed legislation is still in the consulting phase and has not yet been drafted.
On 19 September 2006, a native title claim for nearly 194 000 square kilometres of land in Western Australia led to another landmark decision. The Federal court upheld part of the native title claim by the Nyoongar people, which encompasses the city of Perth. Justice Murray Wilcox, said that in many areas, including the metropolitan area of Perth, native title had not been extinguished. He said that as well as large areas of forest and parkland, there is also land in metropolitan Perth which is subject to native title. Justice Wilcox found that the Nyoongar people were able to prove native title existed because they had continued to observe their traditional customs on the land, despite white settlement in the 1820s. His decision allows the Nyoongar people to use and maintain the natural resources of the area, to hunt and fish on the land, and to use the land for traditional ceremonies. As with all native title claims, the decision does not affect land where native title has been extinguished. It is the first native title judgement to uphold a claim in a metropolitan area. Similar claims in the Northern Territory, Victoria and New South Wales have all been rejected on the grounds that the claimants could not prove a continuous connection with the land.