Draft History - Murray Island Group, national heritage assessment Murray Island Group and the Meriam People
The people of the Murray Island group are known as the Meriam people and Miriam Mir is their language. The Murray Island Group is three Torres Strait islands, Mer (also referred to as Murray Island), Dauar, and Waier (both uninhabited) on the north eastern fringe of the Torres Strait Islands. Collectively they are referred to as the eastern Torres Strait. The other
seventeen inhabited islands are divided into the central and western Torres Strait, with no common genealogical and language base connecting them (MS 9518 1990:75-78).
At the time of European contact, generations of Meriam people had been engaged in small scale agriculture and farming on the fertile and permanently inhabited Mer Island, while their central and western neighbours were fisher people (MS 9518 Moynihan 1990:10-15; 82).
Gardening was considered incompatible with fishing and appropriate rituals and prohibitions existed to separate these (MS 9518 Moynihan 1990:11-15).
A major distinction of the social organisation of the Murray Island Group was the absence of totems and the focus on enhancing individual garden productivity (MS 9518 Moynihan
1990:78). Prestige was dependent on gardening prowess with techniques passed from father to son by descent or adoption and associated with the growing of coconuts. Excess produce was available for exchange for death, marriage and adoption ceremonies and to sustain those engaged in cultural rituals.
In 1871 the London Missionary Society (LMS) arrived in the Torres Strait with Samoan
teachers (MS 9518, Moynihan 1992:100). This event is referred to and celebrated annually as 'The Coming of the Light' (Keon-Cohen 2000:21). In 1877 the LMS established their
headquarters on leased or purchased land on Mer, building a church in 1879. They withdrew from the island in 1891 (Keon-Cohen 2000:11). The Pacific Island Protection Act 1872 set up to protect islanders and stamp out blackbirding, was amended to include the Murray Islands in 1875 (High Court of Australia 1992:3).
In 1878 the Thursday Island Police Magistrate administering the islands, set up an informal law and order system to assist in keeping the peace. Meriam Islanders were asked to select a 'Mamoose' or 'chief', who was responsible for the good behaviour of his countrymen (MS 9518 Plaintiffs' Statement of Fact 1990:10). The Mamoose was supported by local constables and provided with a government boat.
Most notably, the Torres Strait Islands came under Queensland's administrative control when it was annexed under the Queensland Coast Islands Act in 1879 (MS 9518 Moynihan
1990:102). The purpose of the annexation was to: command the Torres Strait and sea lane to India, control the fishing and pearling industries, protect the natives (who were now British citizens) and their property; defend the area; and extend their jurisdiction to non-British subjects (High Court of Australia 1992:5).
The Murray Islands has never had any permanent immigrant population (High Court of Australia 1988:2; High Court of Australia 1992:1). In the early 1890's requests were received from the Mamoose to the Queensland authorities to remove Murray Islanders tenants
(currently living on the South Sea Islands) who were in dispute with their landlords over the ownership of crops (MS 9518 Plaintiffs Statement of Facts 1982:9-10). This included 'objectionable characters' considered trespassers (High Court of Australia 1992:5). In 1891 Alfred Haddon led the first Cambridge Anthropological Expedition to study and record details of Torres Strait Island life including mapping land ownership and recording customs,
genealogies and a Bomai-Malo cult ceremony (MS 9518 Moynihan 1992 162-173).
J S Bruce was appointed school Headmaster, government adviser and Treasurer to the Murray Islands in 1892, when courts were established in Queensland Aboriginal communities (Keon-Cohen 2000:16). Bruce resided on Mer till 1934 and: recorded births, deaths and marriages; oversaw the 'system of self government'; maintained and updated Island Court records; and sent Annual Reports to the Director of Aboriginal Affairs Queensland. This included overseeing the Mamoose's actions, to deal with minor offences including land disputes and the spending of local fees (MS9518 Moynihan 1992:142); (MS 9518 Plaintiffs' statement of fact 1990:13; High Court of Australia 1992:6-7). From 1899 elected councillors assisted the Mamoose and in 1923 an elected Chairman replaced him.
In 1912 the Torres Strait Islands including the Murray Islands became permanent Aboriginal Reserves for the use of the Aboriginal inhabitants and an Island Fund was set up to administer them. The Queensland Government purchased several portions of land in 1913 for
administrative purposes including a Court House, Jail House and recreation reserve, public hall and school (MS 9518 Plaintiffs Statement of Facts 1982:18). In 1924 a public meeting discussed government interference in the payment of locals working as pearlers. In 1928 the people of Dauar moved to live on Mer. In 1936 Torres Strait Islander fishermen objected to the control and regulation of their pearling boats and earnings by the Protector of Aboriginals and went on an extended strike. The first Triennial Council of all Torres Strait Islanders was held in 1937 (MS 9518 Plaintiffs Statement of Facts 1982:9-19).
The Island Court was formalised by the Torres Strait Islander Act (Queensland) in 1939 '…in accordance with Island customs and practices and can make and execute by-laws' (MS 9518 Plaintiffs Statement of Facts 1982:20). Unresolved cases could be appealed by the eastern islands representative to the Torres Strait Islands Representative Council and to the Director of The Department of Aboriginal and Islander Advancement, on occasion. The Island Court was still operating in 1981, at the time of the commencement of the High Court case (MS 9518 Moynihan 1990:44; High Court of Australia 1992:6).
Meriam People's identity and autonomy
Meriam people wanted 'to sustain and reinforce their separate and distinct culture and society' within the Torres Strait (MS 9518 Moynihan 1990:112). From the 1960's, Murray Islander identity was revived with a focus on orally recording and publishing Malo foundation stories for the Murray Islands. Between 1973 and 1978 Torres Strait Islanders petitioned the Queensland government when borders were negotiated and redrawn between Australia and Papua New Guinea. From the plaintiff's perspective, the Queensland Government supported their aspirations to assert their unique cultural and political identity, and retain their rights to their islands and their Australian citizenship (MS 9518, Plaintiffs Statement of Facts, 1990:23).
The 1982 Torres Strait Triennial Conference recorded ninety-nine percent of Meriam people had expressed their desire to have freehold title to their land (MS 9518, Plaintiffs Statement of Facts, 1990:25). In 1984 a Commonwealth Government survey of traditional seas and fishing rights concluded Meriam people 'own and use the fish traps, clam gardens, crayfish houses and have fishing rights on the fringing reefs and claim an area of the sea, reefs and banks around Murray Island' (MS9518 Plaintiffs Statement of Facts 1982:26).
Although closely administered by Queensland, Meriam people not only considered they owned the land but they also had a degree of autonomy. From the plaintiff's perspective; the
community had controlled access by allowing and removing tenants and had never allowed an immigrant population to settle; Murray Island Court decisions were binding; and Murray
Islander representation evolved over time from a government appointed Mamoose to elected representation on the Murray Islands and regional Torres Strait Representative Councils.
References to the incorporation or adherence to Torres Strait Islands customs was acknowledged in some of the rhetoric supporting the subsequent Queensland Acts and
numerous Queensland reports. For example: the Torres Strait Islander Act (Queensland) 1939 claimed it was in accord '… with Island customs and practices and can make and execute by- laws' (MS 9518 Plaintiffs Statement of Facts 1982:20), and the 1958 Deputy Director of Native Affairs report stated:
'A complete system of self government, which gives to them home rule and a very definite control in their guidance of their destiny as a race within the Commonwealth of Australia. It also preserves the dignity and the traditions of the Torres Strait people and permits the incorporation in their by-laws of self government, many of the finer tribal laws and traditions' (MS 9518 Plaintiffs Statement of Fact 1992:21).
In the early 1980's the Queensland Government enacted several pieces of legislation for the Torres Strait, including de-gazetting or revoking Aboriginal reserves under DOGITS (Deeds of Grant in Trust), the most influential of which for the Meriam People's case, was the
Queensland Coast Islands Declaratory Act 1985. Among other things, these changes threatened to limit Murray Islander residency and replace their Council with a Trustee under the Land Act 1962 (QLD) 'with the power to lease and power to terminate traditional
occupation' (High Court of Australia of Australia 1988:2; Keon-Cohen 2000:8). At the same time many families moved from the Murray Islands to the mainland in response to the lack of fresh water and limited work opportunities (Keon-Cohen 2000:15).
Indigenous rights
In the national and international arena, universal human and Indigenous rights were being challenged and recognised through: conventions such as Article 5 of the United Nations International Convention on the Elimination of all Forms of Racial Discrimination 1966; acts such as the Racial Discrimination Act (Commonwealth 1975); and the Yolngu people's (Gove) Native Title case in the Northern Territory High Court.
Prior to 1967, under the Australian Constitution the Commonwealth could not make laws for Aboriginal people in the states. On 27 May, 1967 a National Referendum resulted in an
overwhelming ‘Yes’ vote, and gave the Commonwealth power to legislate for Aboriginal people (potentially over-ruling State arrangements) as well as counting them in the census. The referendum also galvanised Aboriginal activism.
By the early 1970's with citizenship rights gained by Aboriginal and Torres Strait Islander people, political protest increasingly focused on Indigenous rights, especially land as a means of gaining economic independence and improving living conditions. The focus for Aboriginal claims moved from the courts to the political legislative arena (Neate 2002a:8). Indigenous self-determination was embraced as a cornerstone of government policy.
Milirrpum v Nabalco Pty Ltd (1971) (Gove case):
In 1963 the Yolgnu Aboriginal people of Yirrkala, Arnhem Land in the Northern Territory sent two petitions to the Commonwealth Parliament in an attempt to prevent bauxite mining at Gove Peninsula, on land that was previously part of the Arnhem Land Aboriginal Reserve. In 1968 they initiated court proceedings for Native Title, Milirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141 against Nabalco, also referred to as the Gove case. In 1971, Justice Blackburn decided Australian common law did not recognise their Native Title. While recognising a system of law, Justice Blackburn did not consider the law applied to proprietary rights:
'The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of
personal whim or influence. If ever a system could be called 'a government of laws, and not of men', it is that shown in the evidence before me' (High Court of Australia 1992:17).
The Aboriginal Land Rights Commission
The newly elected Federal Labour Government set up the Aboriginal Land Rights
Commission, also known as the Woodward Royal Commission (1973-4) 'to inquire and report on how (not whether) to recognise Aboriginal land rights in the Territory' (Neate 2002a:8). The two Woodward reports led to Australia's first land rights legislation introduced by the Fraser government in the Aboriginal Land Rights (NT) Act 1976 with Commonwealth Government bi- partisan support (Neate 2002a:8; Keon-Cohen 2000:5).
The Meriam People's Native Title High Court of Australia case (Mabo and Another v. The State of Queensland and Another [1988] hca 69; (1989) 166 clr 186 f.c. 88/062).
In 1981, the Townsville chapter of the Aboriginal Treaty Committee organised a Land Rights and the Future of Australian Race Relations Conference. During the conference it became clear that the Queensland government considered they were the owners of the Murray Islands.
This was contrary to the islanders beliefs. The attendees decided to mount a High Court challenge, a 'Gove type' test case, based on the 1971, Yolngu people's case (Keon-Cohen 2000:9). Originally there was to be a second test case at Yarrabah in Queensland, but this did not eventuate (Keon-Cohen 2000:10).
The Meiram people's Native Title court case was a complicated ten year court case defined by two High Court decisions, referred to as Mabo 1 and Mabo 2. The case started in the High Court in 1982 but with the assent of the Queensland Coast Islands Declaratory Act 1985 (Declaratory Act), the Defence, the Queensland Government, amended their pleadings. This was objected to by the plaintiffs with a legal challenge to the Declaratory Act, known as a 'demurrer'. In order for the High Court to determine the legality of this and progress the Native Title case, the responsibility to determine the facts was transferred to Justice Moynihan of the Supreme Court of Queensland, in Brisbane. Moynihan's Determination of Facts was the basis on which the High Court later determined the legality of the settlement of the Murray Islands and the subsequent Native Title rights and interests that pre-dated and survived British
settlement (Mabo 2). Determination of the law was reserved for the High Court in Mabo 2 (MS 9518 Moynihan 1990:10; High Court of Australia 1988:23).
Plaintiffs and Claims
In May 1982, five Meriam people, Eddie Mabo, Father David Passi, James Rice, Celuia Mapo Salee and Sam Passi made a statement of claim in the High Court of Australia. Of the original plaintiffs, Eddie Mabo and James Rice initially gave evidence, Celuia Mapo Salee passed away and Father David Passi and his brother Sam Passi withdrew. After the Mabo 1 decision in the full High Court, David Passi rejoined (Koen-Cohen 2000:25).
The plaintiffs representing their nuclear or extended family groups made claims against the Queensland Government to: village and garden lands; shrine land at Dauar and Waier islands and at Las on Mer (Murray) Island; and adjacent reefs and fish traps on and extending to the fringing reefs of the Murray Islands (Mabo1996:11; Keon-Cohen 2000:12). They claimed that since time immemorial (High Court of Australia 1992:69) they had enforceable legal rights under 'traditional native title' that entitled them as owners; possessors; occupiers; or as persons entitled to use and enjoy the Islands (High Court of Australia 1998:12-13). Two of the plaintiff's claimed to be 'Aiet's' or Malo-Bomai rulers by descent that '…regulate many aspects of secular law and included and still includes a system of land law' (MS 9518 Plaintiffs
Statement of Claims 1990:29). The plaintiffs claimed the State of Queensland had no power to impair their ownership or extinguish Native Title and if they did, the Meriam people were entitled to just compensation from Queensland under the Acquisition of Land Act (QLD) 1967 (Lumb 1993:19).
Claims against the other Defendant, the Commonwealth were not defined. The plaintiffs sought confirmation of their claims to the sea, sea bed and reefs in Commonwealth areas (High Court of Australia 1986:2) and also wanted the Commonwealth to become their sixth plaintiff (Keon-Cohen 2000: 36). The Commonwealth disagreed, 'logistically and substantially' (Keon-Cohen 2000:27).
The Bjelke-Petersen's Queensland Government tried to strike out the plaintiff's claims as frivolous and unfounded (Keon-Cohen 2000:36). Although agreed to, an agreed statement of facts did not eventuate (Keon-Cohen 2000:15). Between 1982 and 1985 both parties
repeatedly amended their statements of claims as information came to light and in response to the other party's pleadings (Keon-Cohen 2000:11-24).
The Queensland Coast Islands Declaratory Act 1985
As Indigenous and human rights were gaining recognition and action in the national and
Government of Queensland (1968-1987), were eroding rights. The Queensland Coast Islands Declaratory Act 1985 claimed that any traditional Native Title rights in the Torres Strait 'which might otherwise have survived annexation in 1879 are deemed not to have survived and, for the purposes of 1985, never to have survived' (High Court of Australia 1996:14).
With the assent of the Queensland Coast Islands Declaratory Act, the defence's pleadings were changed (High Court of Australia 1990:5). Queensland argued that: the Crown acquired sovereignty over the Murray Islands and Queensland law, including common law (laws developed by legal precedents from cases heard and determined in the common courts) became the law of the Murray Islands; the Crown acquired a 'radical' or 'ultimate' title to the Murray Islands; and when the Crown acquired sovereignty it also acquired complete rights of ownership of the land in the Islands to the exclusion of everyone else. The first two legal interpretations were accepted by the plaintiffs; the third was not. This was unacceptable to Meriam people who considered they were, and had always been the owners of the islands (High Court of Australia 1986:1).
Many including the majority of the High Court believed the objective of the Declaratory Act was to retrospectively extinguish existing traditional legal rights. The Queensland opposition
Labour party considered the bill for the act, 'nasty, short and brutish' in an attempt 'to kill off the case' (Keon-Cohen 2000:22). The majority decision of the High Court stated: '[A]s the Minister's second reading speech evidences, this was the objective which the passing of the 1985 Act was intended to secure…The 1985 Act thus extinguished all legal rights which take their origin from native law and custom while confirming all legal rights which take their origin from the relevant statutory law of Queensland, namely, Crown lands legislation' (1988:17). The Queensland government denied this. Deputy Premier Gunn asserted the Bill 'will not frustrate [the Islanders case]: they can do what they like. The Bill only declares what has always been the position' (Keon Cohen 2000:23).
Determination of Facts – Supreme Court of Queensland Moynihan had no doubt that Meriam people:
'… have a strong sense of relationship to their Islands and the land and seas of the islands which persists from the time prior to European contact. They have no doubt that the Murray Islands are theirs. ... There is no doubt that those Murray Islanders who gave evidence succeed in conveying a strong sense of the observation of propriety in respect of land. ... I have little difficulty in
accepting that the people of the Murray Islands perceive themselves as having an enduring relationship with land on the Islands and the seas and reefs surrounding them' (Keon-Cohen 2000:12).
The Supreme Court hearings involved 44 witnesses, two-thirds of whom supported the plaintiffs and a third the defence. There were 292 written and oral submissions, 312 exhibits and 67 hearing days. The Supreme Court representatives, defence and plaintiffs held hearings with Meriam and Torres Strait Island witnesses on Mer and Thursday Islands in May 1989.
The hearings were essential and provided the opportunity for: older Meriam people with traditional knowledge to give testimony to support and dispute the plaintiff's claims; the Supreme Court to understand the broader Torres Strait context and perspectives; and for the plaintiffs to demonstrate ownership of their unsurveyed plots delineated by piles of rocks and specific trees, in situ. Film footage of the Court visits including Torres Strait Islander women performing traditional dances and songs, could not have failed to impress the visitors.
Moynihan acknowledged and thanked the Meriam people and their Council for their hospitality and tolerance during the visits (MS 9518 1990:8-9, Yarra Bank Films 1989).
Principal evidence for the plaintiffs included maps first recorded from Murray Islanders by Haddon's expedition members in 1891 and 400 Island Court records (1893-1984) recovered from a disused Murray Island Council shed. The plaintiffs' counsel claimed the Island Court documents provided evidence of the court dealing with disputes including land inheritance and use with reference, in part to traditional laws and customs (MS 9518 Plaintiff's claims
1990:22).
The Queensland Government tendered among other evidence, the entire administrative history of Mer and much of the Torres Strait (Keon-Cohen 2000:21). Expert testimonies supported or debunked Haddon's expedition work with more recent evidence. Haddon's research focused on genealogies, kinship and property inheritance, social organisation, magic and religion (MS 9518 Moynihan 1990:52).
A key witness for the defence was Mrs Margaret Lawrie, a former school teacher who recorded a book of foundation stories, Myths and Legends of the Torres Strait (1967). The plaintiff's also relied on anthropological work done by anthropologist, Dr Becket, who like Lawrie, worked and lived in the Torres Strait Islands in the early 1960's.
Demurrer – Mabo 1 decision – December 1988
By a majority of four to three, the High Court determined that the Declaratory Act would arbitrarily deprive and unjustly impair a Murray Islander's human right: to own and inherit personal and communal property, in comparison to others (High Court of Australia 1988:18- 20). The Queensland Coast Islands Declaratory Act 1985 (QLD), '…which purported to extinguish the plaintiffs' native title, was nullified by operation of s.10 of the Racial Discrimination Act' (High Court of Australia 1992:131).
Supreme Court decision – Determination of Facts 1989
Moynihan resumed his hearing and considered the 'weight' of the categories of evidence tendered, issues of admissibility and the contemporary recognition of traditions. He determined evidence that either supported claims to ongoing traditions or revived traditions, in his
Determination of Facts report in Nov 1990 (MS 9518).
Moynihan considered that prior to British settlement formal control was maintained through a number of socially cohesive factors: governance by old men for personal or community good;
social relationships and appropriate behaviour learnt through imitation and repetition from an early age and enforced by group pressure; sorcery, magic and taboos associated with initiation and other group activities; and fear and violence. Failure to adhere was met with public shame and ridicule (MS 9518 Moynihan 1990:124-8).
Moynihan acknowledged the legitimacy of Lawrie's recordings, which were based on direct and substantiated Murray Islander oral testimony (MS 9518 Moynihan 1990:123). However, he considered statements such as that made by Lawrie in publication and reiterated by many Murray Island witnesses, legally fraught: '…everything is owned, land, reefs, rocks, stories, stars, winds, tracts of sea and the names of those things are severable and may be separately transferred. A man (in telling the stories of the island) may speak for what is his and no more' (MS 9518 Moynihan 1990:57).
Of the forty five claims made for mapped areas on the three islands and surrounding reefs, four were supported by Moynihan's Determination of Facts; one for residential land and three for garden land (MS 9518 Moynihan 1998:212). Claims to shrine land and surrounding fish traps and reefs were disputed by other Meriam people (MS 9518 Moynihan 1998:195:205).
These and claims to Commonwealth areas were dropped due to the lack of support (MS 9518 Moynihan 1990:24; Koen-Cohen 2000:28:38). The Commonwealth subsequently withdrew (Koen-Cohen 2000:13). 'In the final outcome individual claims lost their significance, in favour of community entitlements' (Keon-Cohen 2000:26). The plaintiff's statement of claim removed Mabo's and other claims related to the fish traps and shrine lands. The plaintiff's changed to the Meriam People (Keon-Cohen 2000:26).
Moynihan determined the evidence for Native Title supported broad community support for the underlying principles of land inheritance and dispute resolution (MS 9518 Moynihan 1990:33).
Moynihan's report provided '… a sound basis for some generalisations in relation to native entitlements to the occupation and use of land within the Murray Islands under local law or custom at the time of their annexation to Queensland' (High Court of Australia 1992:65).
Neither party appealed any aspect of Moynihan's determination (Keon-Cohen 2002:20).
Mabo and Others v Queensland (No 2) (1992)
The High Court's role remained to determine the law in relation to the Meriam People's Native Title claims including the previously untested concept of terra nullius. Under common law, the laws of the new colony depended on the manner of acquisition (High Court of Australia 1992:12). Justice Blackburn, the judge presiding over the 1971 Gove Native Title case stated:
'In the legal theory of the formative years, Australia was regarded as terra nullius – no man’s land. According to that doctrine, the colony was “desert uninhabited” or
“practically unoccupied” or “desert and uncultivated”, a term which includes “territory in which live uncivilized inhabitants in a primitive state of society. The claims of Australian Aborigines and Torres Strait Islanders were “utterly disregarded” by the law' (quoted in Neate 2002a:5).
While considering relevant national and international colonial precedents and legislation (Keon-Cohen 2000:3:12) the High Court was '... not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which give the body of our law its shape and internal consistency' (High Court of Australia 1992:11).
The High Court recognised the difference between Crown title and Crown ownership and that these two sets of rights may or may not co-exist in the same area (High Court of Australia 1992:20-1). Common law could only be changed by an Imperial or local law and a change in sovereignty, was no longer presumed to disturb private owner's rights (High Court of Australia 1992:28).
Mabo 2 High Court of Australia Decision
The Meriam People's case overturned the 'convenient falsehood' of terra nullius, that at the time of settlement, the land belonged to no-one’ (Justice Murphy, High Court of Australia 1992:19). The High Court determined '[i]t is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty' (1992:25). Queensland like other former British colonies had never provided a clear and plain intention to extinguish Native Title by legislature or the Executive.
Like those former cases, Native Title survived (High Court of Australia 1992:33). 'Thus the common law of other Commonwealth countries is utilised to establish the new doctrine as to the effects of settlement in Australia...that at common law in a settled colony Aboriginal rights which existed at settlement survived without any act of recognition' (Lumb 1993:11-12).
The High Court granted Native Title to the Meriam people for Mer Island, and terra nullius was overturned by a majority of six to one judges. The case was not argued or won for the
uniqueness of Murray Island culture within the Torres Strait as claimed by the plaintiffs. This '…was irrelevant in the Court's reasoning in Mabo: the underlying common law principles applied Australia-wide, irrespective of factual variation in traditional life' (Keon-Cohen 2000:10). Dauer and Waier Islands were excluded from the declaration and received Native Title in 2002.
The Native Title Act 1993 (Cth) and the Native Title Tribunal
After the Meriam People's success and to minimise the necessity for (long and costly) court involvement, mechanisms were put in place for determination of future Native Title claims.
After in-depth negotiations with Indigenous people and one of the longest debates in parliamentary history, the Native Title Act 1993 (Cth) came into force. As former Prime Minister Keating commented in relation to the negotiations leading to the Act: ‘...for the first time in the 204-year history of the settled country, its indigenous people sat in full concert with the government’ (Keating 2011).Aboriginal negotiatorMick Dodson commented 'certainly it was something different for the leadership, probably the first time when we had such a huge issue, being directly negotiated with the Prime Minister' (ABC Television Four Corners Judgement Day).
The Native Title Act allowed for: future acts; regional agreements; compensation for
extinguishment and impairment; and negotiation with mining companies and pastoral lease owners.
The complementary National Native Title Tribunal's role was primarily to '… determine uncontested native title and compensation claims … including assisting negotiations and making decisions on proposed grants… and will seek to mediate contested claims' (Bureau of Statistics). Where mediation is unsuccessful, cases are referred to the Federal Court and potentially the High Court.
Changes to the Native Title Act
There have been a number of subsequent amendments to the Native Title Act. Some of the most significant amendments were prompted by decisions of the High Court of Australia (for example the Wik and the Croker Island sea rights cases) (Neate 2002b:10). Further
amendments to the Native Title Act in 1998 set up provision for voluntary Indigenous Land Use Agreements (or ILUAs) between parties (Neate 2002b: 18).
Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia.
In 2010, the Murray Islanders along with twelve other Torres Strait communities received recognition of their rights to the sea, they were seeking in the Meriam People’s High Court case. In 2001, Leo Akiba on behalf of the Torres Strait Sea claim group, was successful in his appeal to the High Court, that recognised previous state and Commonwealth legislation had not extinguished their Native Title sea rights.
‘The appeal from the Full Court of the Federal Court focused on whether successive fisheries legislation had extinguished a native title right to take fish, and other aquatic life, from the waters in and around the Torres Strait…[and] brings the rights and interests that Torres Strait Islanders have over waters into line with their rights and interests over land areas, and provides an additional pathway for engagement in commercial enterprises’ (Allens 2016).