Audio Ron Merkel discusses the native title claim process, 2008

TLF ID R10291

This is an edited sound recording of former Federal Court of Australia judge Ron Merkel talking about the process required for lndigenous communities to mount native title claims. Merkel outlines the criteria for native title to be recognised by the Court. He also talks about how the native title process has involved oral histories, which is unprecedented in Australia's legal system. The recording was made in December 2008.



Educational details

Educational value
  • This is a firsthand account of the native title claim process from a former judge of the Federal Court of Australia. Ron Merkel (1941-) was on the bench of the Federal Court from 1996 to 2006, and during that time handled many native title claims made under the Native Title Act 1993. The Federal Court has handled native title determinations since 1998, when the Act was amended.
  • Native title was only recognised in Australia in 1992, when the High Court of Australia made a historic ruling in what has become known as the Mabo case. The Court overturned the concept of 'terra nullius' (land belonging to no-one), which had formed the basis for large areas of land in Australia being declared crown land after British colonisation in 1788.
  • This recording includes an outline of what Indigenous communities are required to do to make a successful native title claim under the Act. Merkel explains that successful claimants must be able to prove a continuing connection with their traditional land, in accordance with their lores and customs, as in the precedent set by the High Court determination in the Mabo case.
  • Merkel stresses the heavy reliance in native title cases on oral histories - unprecedented in Australia's legal system. The oral histories heard by the Federal Court include histories recounted by members of communities and histories recorded by anthropologists. Merkel alludes to a reason why many native title applications fail, saying that many Indigenous people were displaced by colonisation and settlement, which affected their ability to prove to a legal standard their continuing connection with the land.
  • Merkel says that in some situations the Federal Court has heard evidence from Indigenous people 'on country'. In such cases Merkel and other judges have travelled to the land subject to the native title claims to hear evidence and hand down judgements in temporary courts set up at the location.
  • Hundreds of native title applications have been made but at the time of this recording, late in 2008, only 82 had been wholly or partly successful. As of 2009 the National Native Title Tribunal, set up by the federal government, tries to negotiate 'consent determinations' that only require formal endorsement by the Federal Court.

Other details

Contributors
  • Publisher
  • Date of contribution: 20 Sep 2013
  • Organisation: Education Services Australia
  • Address: Melbourne VIC 3000 Australia
  • URL: http://www.esa.edu.au/
  • Copyright holder
  • Organisation: Education Services Australia
  • Address: Melbourne VIC 3000 Australia
  • URL: http://www.esa.edu.au/
  • Remarks: Copyright Education Services Australia Ltd
  • Content provider
  • Organisation: Education Services Australia
  • Address: Melbourne VIC 3000 Australia
  • URL: http://www.esa.edu.au/
  • Author
  • Date of contribution: 2008
  • Name: Ron Merkel
  • Remarks: speaker
Access profile
  • Colour independence
  • Device independence
Learning resource type
  • Sound
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Rights
  • © Education Services Australia Ltd, 2013, except where indicated under Acknowledgements.