Page 1110 - Week 04 - Thursday, 21 April 1994
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In the first instance, the High Court's decision has demanded that many of the assumptions underlying Australia's systems of land administration be re-examined in the context of a new understanding of the legal status of the connection between Aboriginal peoples and Torres Strait Islanders and the land. Perhaps more importantly, the sheer scope of the High Court's decision has asked us to look well beyond its direct legal implications to contemplate more broadly the relationships between the peoples of this country. In this sense, the native title decision contains within it the potential to be a powerful force for achieving reconciliation, provided that as a nation we can grasp the opportunity it presents and rise to the occasion. It is against this background that today the Assembly as a legislature can take an important step towards placing our relationships with Aboriginal peoples and Torres Strait Islanders on a just footing through the introduction of the Native Title Bill 1994.
I believe that it is useful, in presenting the Bill, to rehearse briefly its legal origins. The High Court in its 1992 native title decision rejected the doctrine that Australia was terra nullius - land belonging to no-one - at the time of European settlement. Rather, it held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands. At the same time, the court held that native title rights may be extinguished by valid government acts that are inconsistent with the continued existence of those rights, such as the grant of freehold or leasehold estates.
In response, the Commonwealth Parliament has enacted the Native Title Act 1993. It provides for a national scheme which, amongst other things, provides for the recognition and protection of native title, establishes ways in which future dealings affecting native title may proceed, and sets standards for those dealings. The Act also establishes a Native Title Tribunal for determining claims to native title and provides for, or permits, the validation of past acts which are invalid because of the existence of native title.
As I have indicated on a number of occasions, the Government believes that the national scheme now enshrined in the Native Title Act has struck a careful balance between certainty of land administration and justice for Aboriginal peoples and Torres Strait Islanders. This balance reflects in part the extensive consultations that took place with all interested parties during the development of the Commonwealth's policy position and as the Bill progressed through the Commonwealth Parliament. Accordingly, the ACT Native Title Bill provides an appropriate basis on which the Territory will participate in the national scheme. In particular, it provides for the validation of past acts attributable to the Territory which may be invalid because of the existence of native title and confirms existing rights to natural resources and access to waterways and public places.
However, to fully understand the operation in the ACT of the national scheme it is also essential to discuss the relationship between the Territory legislation and the Commonwealth Act. The Commonwealth law largely relies on the common law, as set out in the High Court's decision, to provide meaning for the term "native title".
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