Native title and Adani
Wednesday, June 28, 2017
Justinian in Adani, Native Title, Peach Melba

Gautam Adani's problems cleared by rushed legislation ... McGlade decision reversed by parliament ... Registration of Indigenous Land Use Agreements without agreement of all native title claimants ... Elif Sekercioglu traces the development 

Indigenous protest against Adani was not unanimousTHIS year marks two very important anniversaries for Indigenous Australian rights. May 27 heralded 50 years since the referendum to amend the Australian Constitution. Held in 1967, the amendment meant Aboriginal and Torres Strait Islander people would be counted in future censuses. The referendum also removed a clause in s.51(xxvi) which had meant the Commonwealth could not make laws with respect to Aboriginal people. The outcome of the referendum was therefore formal recognition that Indigenous people were members of the Australian population.

Then in 1992, the High Court handed down one of the most important Constitutional law cases in the history of this country. 

In 1879, the Murray Islands had been annexed to the colony of Queensland. Mabo and two other Meriam people sought a declaration from the crown that they were entitled to the Murray Islands as owners, occupiers and possessors.

In Mabo v Queensland (No 2), the High Court recognised Native Title for the first time. The case is significant for its reinterpretation of the doctrine of tenure and how the state possesses land in Australia.

Justice Brennan found that Australia was not a terra nullius when the British crown acquired sovereignty. This opened the way for his conclusion that customary Native Title was not automatically extinguished at sovereignty. Ten years later, in Yorta Yorta, the court would describe sovereignty as a moment when traditional laws and customs intersected with the common law. 

Justice Brennan described Native Title as the continued acknowledgement and observance of traditional laws and customs such that Indigenous groups substantially maintained a traditional connection with the land. 

The Native Title Act 1993 gave effect to the Mabo decision and set out a procedure for assessing claims. The constitutional referendum of 1967 meant that the Commonwealth could enact such legislation under s.51(xxvi) of the Constitution.

Section 223(1) of the Act defines "native title". The court in Yorta Yorta interpreted this to mean that traditional laws and customs, and a recognisable community, must have continued "substantially interrupted" since sovereignty, as the court could not recognise a parallel legal system. 

This makes it very difficult to establish Native Title where Indigenous people were forcibly removed from their lands.

The decision in Yorta Yorta exemplifies this: the Indigenous people had been forced off their land by squatting practices and crown grants of land. The community had dispersed because of external forces such that traditional laws and customs were no longer observed. 

The Australian Law Reform Commission in 2015 recommended removing the requirement that claimants prove the existence of a normative society that had continued substantially uninterrupted. The report also advocated taking into account the evolution and development of traditional laws and customs. 

Mabo and the Native Title Act are as important and topical as ever. The Native Title Act provides for "Indigenous Land Use Agreements" (ILUA) through which native title groups can enter into voluntary agreements for the use of land and waters.

On February 2, 2017, The Full Federal Court in McGlade v Native Title Registrar & Ors held that an ILUA could not be registered without being signed by all members of the native title group of that area.

McGlade posed a problem for Gautam Adani. His company had purchased a massive coal deposit in Queensland's Galilee Basin in 2010. The proposed mine is on the traditional land of the Wangan and Jagalingou people, who are divided on their position towards the mine. An ILUA between Adani Mining Pty Ltd and the Registered Native Title Claimants was signed by only seven of the twelve claimants.

Turnbull told Gautam Adani that he would fix the Native Title "problem"

The McGlade judgment retrospectively rendered this agreement invalid. The objecting native title claimants (the Wangan and Jagalingou Family Council) stated through a lawyer that they did not "accept that their native title should be extinguished by the ILUA and have serious concerns regarding the devastation that the Carmichael project will bring to their culture and the environment".   

The political winds were in Adani's favour. The Coalition hastily sought an amendment to the Native Title Act to restore the pre-McGlade understanding that ILUAs could be registered without the agreement of all native title claimants. The amendment received assent on June 22. The way forward for the Carmichael mine looks ever-smoother. 

Twenty-five years ago, Mabo legally recognised that Indigenous people had a connection to their lands that transcended the arrival of the common law. However Native Title can be extinguished, or difficult to establish because of historic discriminatory practices that dispersed people from their land.

Its very content can provide only thin protection as it depends on the facts and evidence of a claim. It is concerning that any amendment to the Native Title Act would be rushed through and even if that is not its specific intention, clear a legal barrier to a mine which would cause irreparable damage to Indigenous land. 

In the words of the W&J

"If the Carmichael mine were to proceed it would tear the heart out of the land. The scale of this mine means it would have devastating impacts on our native title, ancestral lands and waters, our totemic plants and animals, and our environmental and cultural heritage… Our land will be 'disappeared'."  

From Elif Sekercioglu

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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