RIGHTS OF TRADITIONAL OWNERS
Whether or not recognised under the Native Title Act 1993, traditional owners have legal rights concerning their lands and past acts and use of the land and its resources can be problematic where traditional rights conflict with laws protecting flora and fauna. Sadly, many traditional owners still experience discrimination and racial vilification and are subject to a criminal justice system that offers little understanding of power imbalances. These entrenched issues often lead to Indigenous families losing loved ones or their traditional homes. If a prescribed body corporate (PBC) operates and makes decisions over traditional owner rights, but many are prevented from joining, then legal rights can be relied upon to rectify these situations. Salerno Law can assist with a number of issues faced by traditional owners including:
RIGHTS UNDER THE NATIVE TITLE ACT 1993
Although native title was first recognised by the High Court, the Act is where you must start to find your rights and interests. The Act poses the issue of recognition as the question: 'what are the rights and interests in relation to lands or waters which are possessed under the traditional laws and customs acknowledged and observed by the relevant peoples?' The Act is beneficial legislation and the preamble sets out the moral foundation for the Act.
The content of native title rights starts with understanding existing legal rights and then understanding what is provided for by traditional law and custom. Where no native title has been extinguished, it has been found to be akin to freehold interest i.e. for exclusive use and enjoyment. Where native title has been infringed, rights to access, conduct ritual ceremony and to take ochre, water, cook and light fires, protect and care for sites are objects are expressed to permit the fullest enjoyment of traditional land permissible with existing rights of other stakeholders.