WARNING: This story contains the names of people who have passed.
Terra nullius, meaning no man's land, was the basis on which colonial forces declared ownership of Australia.
British colonists claimed that Aboriginal and Torres Strait Islander peoples had no existing form of law, culture or governance and so forcibly imposed Western law and governance.
No formal treaty was ever made between the invading force and First Peoples, sovereignty was never ceded.
However, 204 years after the establishment of the first colony at Sydney Cove, the claim of terra nullius was rejected.
In May of 1982, a group Meriam men from Torres Strait lodged a case in the High Court of Australia for legal ownership over their Country.
Amongst the men were David Passi, Sam Passi, Celuia Mapo Salee, James Rice and Eddie Koiki Mabo.
A decade passed, and that acknowledged the eight clans of Mer, Murray Island, were the original custodians of the island.
The evidence also noted the law, culture and governance that existed on the island before colonisation.
The case was brought for an initial decision before the Supreme Court of Queensland. While the decision was being made, the state of Queensland passed the Torres Strait Islander Coastal Islands Act 1985.
This Act saw the dismissal of any Torres Strait Islander claim to homelands without compensation. Meriam challenged the Act in 1986, and two years later the High Court determined it breached the Commonwealth's Racial Discrimination Act.
This decision led the way for the Mabo Decision in June of 1992.
Six of the seven judges in the Australian High Court determined that Meriam People held ownership of their homeland.
By the time the decision was passed, three of the five plaintiffs had passed away.
The passing of the Native Title Act
The Mabo Decision not only dismissed terra nullius, but saw the Court recognise the principle of Native Title across the nation.
The court noted that Native Title remained on any portion of land on which it hadn't legally been extinguished, such as Crown land, national parks and some leased land.
The Decision catalyst for the creation of The Native Title Act 1993, which was passed by the Keating Government in December 21.
, Prime Minister Paul Keating said the court's decision was "unquestionably just".
"It rejected a lie and acknowledged a truth. The lie was terra nullius – the convenient fiction that Australia had been a land of no one," he said.
He said the nation owed it to " Aboriginal Australians, to all Australians" and to "our fair and democratic traditions and to future generations" to recognise Native Title.
Paul Keting: Instrumental in passing the Native Title Act in 1993. Source: AAP
The continued right to Country
The Act sought to recognise four things: the acknowledgment and protection of Native Title, the establishment of a process where Aboriginal and Torres Strait Islander people may apply for Native Title over their homelands, the development of a mechanism for how claims are received and determined and the ability for some parties to override Native Title if agreements cannot be reached.
The Act acknowledged that the rights and interests of Aboriginal and Torres Strait Islander peoples to land and waters continued despite European settlement.
These rights existed before the western legal system in Australia, so the Court doesn't grant Native Title but rather recognises it.
Rights and interests that a Native Title holder can access after a successful determination include the ability to live on Country and build structures and shelters, access to certain places for traditional purposes like ceremonies, visit and protect important sites, hunt and gather food or traditional resources like bush medicines, ochre and wood and teach law, custom and culture on Country.
However, not all rights are automatically provided.
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Native Title is not 'land rights'
The long road to recognition
Achieving a successful Native Title determination is a difficult process, and requires claimants to prove a continuous and unbroken connection to Country since colonisation.
In 2015, a review of the Native Title Act by the Australian Law Reform Commission investigated the difficulty in proving ongoing connection.
The during the Jango v Northern Territory determination.
He said that claimants are disadvantaged in the fact there are "no Indigenous documentary records that enable the Court to ascertain the laws and customs followed by Aboriginal people at sovereignty".
"While Aboriginal witnesses may be able to recount the content of laws and customs acknowledged and observed in the past, the collective memory of living people will not extend back for 170 or 180 years."
The requirement to prove a continuous connection for those who experienced forced removal and displacement from Country since colonisation could be impossible.
Native Title determinations can take years and in many cases, claimants who begin the process pass away before the result.
The longest-running claim spans almost three decades.
In December of 2022, the Federal Court of Australia recognised Purnululu and Gajangana Jaru groups as the Native Title holders of Purnululu National Park in Western Australia's Kimberley region.
The claim was lodged in 1994.
No vet for Native Title
Native Title can be recognised in two forms, exclusive and non-exclusive.
Non-exclusive means Native Title co-exists with things like pastoral leases and other non-Indigenous property rights.
Whereas exclusive means Country can be accessed and occupied by Native Title holders at the exclusion of all others. This can only really be granted on certain areas like unallocated Crown land.
When Native Title is recognised, claimants do not have legal ownership of Country and in very few cases economic rights or
Native Title Owners do not have rights to resources such as minerals, gas or petrol found on their Country, they also do not have veto power and so are required to negotiate with industry and government on how Country is used and protected.
While it can take years for rights to be recognised, government retain the power to extinguish Native Title rights.
In 2019, the Queensland government then under the leadership of Annastacia Palaszczuk in the Galilee Basin.
Wangan and Jagalingou people lost their rights to 1,385 hectares of their homelands, as Adani was granted exclusive possession freehold title.
What next?
The Native Title Act was the culmination of hundreds of years of advocacy by land rights leaders, and was given life after the dismissal of terra nullius.
It enables Aboriginal and Torres Strait Islander peoples the opportunity to retain cultural rights to their Country, to sit at tables and advocate for and negotiate the future of their homelands.
But it's limitations and issues have planted the seed for the next chapter in the land rights movement, whether that be the fight for economic self-determination on Country or land back.
Three decades on, the Native Title Act remains a mammoth milestone in the journey to achieving Aboriginal and Torres Strait Islander peoples' birthright of custodianship, connection and self-determination of Country.
