Indigenous Peoples

If you study Indigenous Peoples, you answer one 25-mark extended response (about 1,000 words). Questions ask you to evaluate how effectively the law recognises and protects the rights of Indigenous peoples, mainly Aboriginal and Torres Strait Islander peoples, with international and comparative examples.

• The nature of Indigenous peoples' rights: who Indigenous peoples are, the effect of colonisation, and the concepts of self-determination, sovereignty and land rights.
• Responses: international law and UN bodies; Australian law (land rights, native title, anti-discrimination, reparations, justice responses); and non-legal measures (activism, Aboriginal Community Controlled Organisations, the media).
• Contemporary issues: for example land and native title, self-determination (Voice and treaty), criminal justice, child removal, cultural heritage, health and education.
• Themes and challenges: the role of the law in recognising rights, the impact of colonisation, the relationship between Indigenous peoples and the state, and the effectiveness of legal and non-legal measures.

This topic includes material about the removal of children, deaths in custody and racism that some readers may find distressing. Aboriginal and Torres Strait Islander students can contact 13YARN (13 92 76), a 24-hour crisis support line run by and for Aboriginal and Torres Strait Islander people.

The law below is as at October 2026.

• Indigenous peoples: the UN uses self-identification, historical continuity with pre-colonial societies, a strong link to territories and distinct social, economic and political systems. There are more than 476 million Indigenous people in about 90 countries.
• Self-determination: the right of peoples to freely determine their political status and pursue their economic, social and cultural development (UNDRIP art 3). In Australia it usually means control over decisions affecting communities, not a separate state.
• Sovereignty: Aboriginal and Torres Strait Islander peoples never ceded sovereignty. Australian courts have held that they cannot rule on the sovereignty of the Crown — Coe v Commonwealth (1979) — but the Uluru Statement (2017) describes sovereignty as "a spiritual notion" that coexists with the Crown's.
• Terra nullius: the legal fiction that Australia belonged to no one when the British arrived. Rejected by the High Court in Mabo (No 2) (1992).
• Land rights: statutory schemes that grant land to Aboriginal communities. Native title: common law recognition of rights that existed before colonisation and survive.

• Racial Discrimination Act in action: Mabo v Queensland (No 1) (1988) struck down a Queensland law that tried to extinguish Torres Strait Islanders' rights; Koowarta v Bjelke-Petersen (1982) upheld the Act under the external affairs power.
• UN criticism of Australia: CERD criticised the Native Title Amendment Act 1998 and the Northern Territory Emergency Response (2007), which suspended the Racial Discrimination Act; Daniel Billy v Australia (Human Rights Committee, 2022) found violations of Torres Strait Islanders' rights, including to culture, due to climate impacts.
• Limit: UN bodies' views are not enforceable, and Australia has not incorporated UNDRIP into law (unlike Canada's UNDRIP Act 2021).

• Milirrpum v Nabalco (1971): Yolngu claim at Gove failed; terra nullius applied.
• Activism: Wave Hill walk-off (1966–75), the Aboriginal Tent Embassy (1972).
• Aboriginal Land Rights (Northern Territory) Act 1976 (Cth): about half of the NT is Aboriginal land; land councils.
• Aboriginal Land Rights Act 1983 (NSW): Aboriginal Land Councils can claim certain Crown land; large backlog of undetermined claims.
• Mabo v Queensland (No 2) (1992): 6–1; terra nullius rejected; native title recognised for the Meriam people.
• Native Title Act 1993 (Cth): claims through the Federal Court and the National Native Title Tribunal; right to negotiate (not veto) over some future acts; Indigenous Land Use Agreements; prescribed bodies corporate.
• Wik (1996): pastoral leases do not necessarily extinguish native title → Native Title Amendment Act 1998 restricted rights.
• Yorta Yorta (2002): claim failed — claimants must prove continuous observance of traditional laws and customs.
• Akiba (2013): Torres Strait sea rights include taking resources for commercial purposes.
• Northern Territory v Griffiths (Timber Creek) (2019): about $2.5 million compensation, including about $1.3 million for cultural and spiritual loss.

Evaluation: a landmark shift in recognition, but the burden of proof, extinguishment by freehold, and no veto limit justice. Closing the Gap targets for land and sea rights are on track.

• Early activism: the Day of Mourning (1938), the Yirrkala bark petitions (1963), the Barunga Statement (1988).
• 1967 referendum (about 91% Yes): Commonwealth power to make laws for Aboriginal people; counted in the census.
• ATSIC (1990–2005): elected body; abolished by Parliament.
• Uluru Statement from the Heart (2017): Voice, Treaty, Truth.
• Referendum, 14 October 2023: constitutional Voice to Parliament rejected — about 60% No, every state No.
• South Australia: First Nations Voice Act 2023; first elections March 2024.
• Victoria: Statewide Treaty Act 2025 — passed October 2025, assent 13 November 2025; Australia's first treaty; permanent First Peoples' Assembly and Gellung Warl, a body government must consult on laws affecting First Peoples; accountability and truth-telling bodies after the Yoorrook Justice Commission (2021–25). The Opposition has promised to repeal it (state election due November 2026).
• Queensland: Path to Treaty Act 2023 repealed after the 2024 change of government.
• NSW: treaty commissioners Aden Ridgeway and Naomi Moran began community consultations in 2025.
• Community control: Aboriginal Community Controlled Organisations (the first Aboriginal Medical Service opened in Redfern in 1971; the Aboriginal Legal Service). The National Agreement on Closing the Gap (2020) was negotiated with the Coalition of Peaks; its Priority Reforms are shared decision-making, community-controlled services, changing government organisations and data. The Productivity Commission's 2024 review found governments had not changed how they work; in 2025 only four of 19 targets were on track.

• About 3.8% of the population (2021 Census) but about a third of adult prisoners (ABS, 2024); more than half of young people in detention.
• Royal Commission into Aboriginal Deaths in Custody (1991): 339 recommendations; more than 500 deaths in custody since. Pathways to Justice (ALRC, 2017) recommended justice targets and reforms to bail, fines and sentencing.
• Responses: the Custody Notification Service (NSW); R v Fernando (1992) and Bugmy v The Queen (2013) on disadvantage in sentencing; circle sentencing (BOCSAR 2020: less imprisonment and reoffending); the Youth Koori Court (2015); the Walama List (2022); justice reinvestment at Bourke (Maranguka; a 2018 KPMG assessment commissioned by Just Reinvest NSW reported falls in offending and custody).
• Laws that increase incarceration: tougher bail laws; fines and licence offences; the age of criminal responsibility (10 in NSW; NT lowered it back to 10 in 2024; ACT raised it to 14).

• Aborigines Protection Act 1909 (NSW), amended in 1915 to allow removal without a court finding of neglect.
• Bringing Them Home (1997): between one in three and one in ten children removed (1910–1970); described as genocide under the Genocide Convention definition; 54 recommendations.
• National Apology: 13 February 2008; the Healing Foundation (2009); Link-Up services help survivors trace and reunite with family.
• Litigation: Kruger (1997) and Cubillo (2000) failed; Trevorrow v South Australia (2007) succeeded.
• Reparations: Tasmania (2006), NSW (2017, $75,000 payments), Victoria (2022), the Territories Stolen Generations Redress Scheme (2021).
• Today: Aboriginal and Torres Strait Islander children are about ten times as likely to be in out-of-home care; Family is Culture review (NSW, 2019); the Aboriginal and Torres Strait Islander Child Placement Principle.

• Juukan Gorge (WA): 46,000-year-old rock shelters destroyed by Rio Tinto in May 2020 under a lawful s 18 consent (Aboriginal Heritage Act 1972 (WA)). A failure of heritage law, not native title. Inquiry reports Never Again (2020) and A Way Forward (2021). WA's 2021 Act commenced 1 July 2023 and was repealed in August 2023.
• NSW: still under Part 6 of the National Parks and Wildlife Act 1974 (permits to harm; no Aboriginal veto).
• Victoria: Aboriginal Heritage Act 2006 — Registered Aboriginal Parties make key decisions.
• Commonwealth: Aboriginal and Torres Strait Islander Heritage Protection Act 1984 — rarely effective (Hindmarsh Island, Kartinyeri v Commonwealth (1998)); reform promised, not enacted by 2026.
• World Heritage: Budj Bim (2019), Murujuga (2025).
• Intangible heritage: copyright protects individual creators, not communal knowledge — Milpurrurru v Indofurn (1994) awarded damages for carpets copying Aboriginal artworks; Bulun Bulun v R & T Textiles (1998) recognised a fiduciary obligation owed by an artist to his clan.

• Treaty of Waitangi / Te Tiriti o Waitangi (1840) between the Crown and Māori rangatira; English and Māori texts differ.
• Waitangi Tribunal (Treaty of Waitangi Act 1975; historical claims from 1985) → settlements with apologies, land and money.
• Te Awa Tupua (Whanganui River Claims Settlement) Act 2017: the river is a legal person.
• Treaty Principles Bill (2024): voted down in April 2025 after mass protest (hīkoi).
• Canada (a second comparison): the Truth and Reconciliation Commission (report 2015) on residential schools; Tsilhqot'in Nation v British Columbia (2014) recognised Aboriginal title; the Nunavut Land Claims Agreement (1993) led to the territory of Nunavut (1999); the UNDRIP Act 2021 requires federal laws to be aligned with UNDRIP.
• Comparison: New Zealand has a founding treaty and a standing tribunal; Australia has no national treaty and relies on native title and statutory schemes.

Worked example: is native title likely to exist?

A group claims native title over land now used as (a) a national park, (b) a suburban freehold housing estate and (c) a pastoral lease. Step 1: they must show continuing connection under traditional laws and customs (Yorta Yorta, 2002). Step 2: freehold (b) extinguishes native title completely. Step 3: a pastoral lease (c) does not necessarily extinguish it (Wik, 1996); rights may coexist, but the pastoralist's rights prevail where they conflict. Step 4: in a national park (a), native title may survive and is often recognised alongside joint management. So the claim is strongest over (a), possible over (c), and fails over (b) — although compensation may be available for extinguishment after 1975 (Timber Creek, 2019).

Criteria:

• Recognition of rights versus real control (self-determination).
• Outcomes: Closing the Gap data, incarceration, out-of-home care, land returned.
• Durability: can a new government repeal the measure (ATSIC, Queensland treaty)?
• Consultation and consent: were Aboriginal and Torres Strait Islander peoples involved?
• Enforceability: UNDRIP and UN views versus binding law.

Typical judgement: the law has moved from non-recognition to significant recognition since the 1970s, but limited control, vulnerability to political change and persistent disadvantage mean justice has been only partly achieved.

• Saying Mabo gave Aboriginal people ownership of all land. It recognised native title only where connection survives and it has not been extinguished.
• Saying UNDRIP is binding on Australia.
• Confusing land rights (statute) with native title (common law recognised by the Native Title Act).
• Treating Aboriginal and Torres Strait Islander peoples as one homogeneous group, or using outdated or disrespectful terms.
• Writing only history, without evaluating current law.

• Structure: judgement in the introduction; paragraphs by concept (land, self-determination, justice) or by level (international, Australian, comparative); conclusion.
• Use respectful, precise language: "Aboriginal and Torres Strait Islander peoples", "First Nations"; name the people where you can (the Meriam people, the Puutu Kunti Kurrama and Pinikura peoples).
• Use a range of evidence: cases, statutes, inquiries (RCIADIC, Bringing Them Home), dated statistics, and the voices of Aboriginal-led organisations.
• About 1,000 words in about 45 minutes.

• Human Rights: self-determination, racial discrimination, the 2023 referendum and recognition.
• Crime: over-representation, bail, the age of criminal responsibility, circle sentencing.
• Global Environment and Protection: Torres Strait climate claims; heritage and World Heritage.
• Family: child protection and the Child Placement Principle.