Property Law for Native Title Act -myassignmenthelp.com

Question: Discuss about theProperty Law for Native Title Act. Answer: Native Title An Overview Native title is a form of property right to land, which lays the foundation of the culture, religion and well-being of the indigenous group of people. The landmark case for the Australian native title was Mabo v Queensland (No 2) [1992][1] and subsequent to the statutory recognition of the statutory concept native title in Mabo, the Keating Government made the recognition official with the enactment of the Native Title Act 1993 by the Australian Parliament[2]. In the Mabo case, the High Court established that the pre-existing rights and interest of the Aboriginal and Torres Strait Islander people to land survived the claim of sovereignty made by the Crown. Position of Native Title in Legal property definitions Brennan J in the Mabo case laid down the conditions that must be established for survival of native title after the sovereignty claim. The conditions were that native title would survive after sovereignty under circumstances where: a group has persistently observed and acknowledged all the customs and traditional establishing their consistent maintenance of traditional connection with the land; and their traditional connection with the land has not been subdued by the exercise of the valid sovereign power. Nevertheless, if any such observance or acknowledgement of the traditional customs of the aboriginals is ceased to be maintained, the claim of native title shall be considered as withdrawn. In Members of the Yorta Yorta Aboriginal Community v Victoria[3], conditions to determine native title under section 223(1) of the Native Title Act was construed in the light of proposition that the term tradition referred to the laws and customs that were passed from the ancestors of the aboriginals from generation to generation. The rights and interests under such laws and customs has been existing without any interruptions since sovereignty. In the absence of evidence of such uninterrupted observance of traditional laws and customs, it shall not be considered as traditional. In Western Australia v Ward[4], the High Court held that as per section 223(1) (a) of the Native Title Act, it is important to identify the traditional laws and customs and the rights and interests possessed under such laws and customs. This is because the rights and interest possessed by the claimants must have their origin from such traditional laws acknowledged and the traditional customs observed by the aboriginals. In Bodney v Bennell[5], the court held that the aboriginals must have had continuous connection with the land and water as per the laws and customs acknowledged and observed by their ancestors since sovereignty. In the Yorta Yorta case, the High Court further held that the rights and interests possessed by the aboriginals must be recognized by the Common law. In order to determine the claimed rights and interest are recognized by the Common Law, the consistency of the rights and interests shall be examined with that of the Common Law. In case it is consistent, the holder of the rights and interests shall be entitled to remedies to exercise such rights and interests over the claimed land and waters otherwise, the recognition shall be withdrawn. Issues surrounding the Native Title After the recognition of the concept of native title in the Mabo case, the Native Title Act was enacted wherein section 223(1) was incorporated to determine native title. As discussed above, the definition necessitates that the native title claimants must establish that they possess rights and interests over the land and waters under the traditional laws and customs observed by them. They must establish they maintain a connection with the land or waters based on the rights and interest they have acquired from their traditional laws and customs which must be recognized by the Common Law[6]. The term traditional law or custom implied the customs or laws that have been passed from one generation to another in a society that were observed by their ancestors at the time of sovereignty. The most significant issue that arises with respect to the conditions set out under section 223(1) of the Native Title Act is relating to the fact that it may be difficult for the claimants to establish their native title especially over the land or waters where the Europeans had settled intensively. The issue has been established in the Yorta Yorta case where the claimant failed to adduce sufficient historic and oral evidence that were mandatory to establish the claim of native title over the land or waters. The Native Title Act was enacted for enabling the aboriginals to negotiate and resolve their issue related to the recognition of the community and their rights and interests over the land and water. In the Members of the Yorta Yorta Aboriginal Community v Victoria[7], the people claimed native title to an area of water and land in the Northern Victoria and Southern NSW. The Federal Court dismissed their claim on the ground that they did not have adequate evidence to support their claim and there is no evidence of their continual observance of their traditional laws and customs, which is necessary to establish their native claims as per the conditions stipulated under section 223 of the Act[8]. On appeal before the High Court, it upheld the decision of the Federal court. The statute has been subjected to criticisms for its requirement to establish the ongoing connection of the aboriginals with respect to their land and water. This requirement has caused various difficulties for them to establish their native title over the land and water where there has been widespread urbanization and agricultural development. The statute has failed to consider the fact that establishing a connection is expensive and often unaffordable for the aboriginals. The statute merely requires evidence of continued observance of traditions and customs and possession of land and water but fails to consider the fact that they were forcefully removed from their traditional lands by the white invaders in wars, which makes it even more difficult for the community to adduce sufficient evidence of their native title. Therefore, as per the findings relating to dismissal of the native title claim in Yorta Yorta case, it is evident that the conditions set out under the statute may make it difficult for claimants to succeed in establishing their claim of native title. The evidence to establish the claim is being placed to high, thus, impeding the aboriginals to establish their native claim. Reference List Bodney v Bennell [2008] FCAFC 63 Mabo v Queensland (No 2) [1992] HCA 23 Members of the Yorta Yorta Aboriginal Community v Victoria HCA 58, (2002) 214 CLR 422 Native Title Act 1993 Western Australia v Ward HCA 28 (2002) 191 ALR 1