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Overcoming the native title gridlock
Author: By Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner
Publication: The Australian Financial Review, Page 53 (11 April 2008)
The native system in Australia is in gridlock.
In 1992, Eddie Mabo’s name became known across Australia. Sadly, as is far too common in native title proceedings, it was after his death that the High Court realised Eddie Mabo’s vision. The Court recognised Indigenous Australians’ fundamental right to native title. Not long after, the then Prime Minister Paul Keating envisaged a better Australia. One in which the federal Parliament recognised that Indigenous Australians were dispossessed of their lands, and provided a mechanism to rectify some of those past injustices.
And so the Native Title Act 1993 was passed.
That was 15 years ago. The Native Title Act is no longer achieving the objective that the Australian Parliament and the Australian people intended.
To date, only 109 native title determinations have been made. Out of more than 500 native title claims waiting to be determined, one is listed for hearing by the Federal Court.
The most expensive native title litigation ever, over the Goldfields region in Western Australia, ran for 13 years. The claim ended last year with no native title determination. The parties must start again.
The time it takes for Indigenous people to have their native title recognised is an indicator of the fundamental and complex problems with the system. It is not acceptable that while Indigenous elders are dying at an average of 17 years before non-Indigenous Australians, the various parties in the system continue to approach native title in its strict legal sense in a highly adversarial setting. Justice delayed is justice denied.
A former Federal Court judge, the Hon. Ron Merkel QC said recently: “…the very people for whom native title is of the essence are dying…I can’t imagine a crueller or more unjust outcome than that”.
Recent Federal Court decisions show how Indigenous people can easily be prevented from enjoying native title. The claim of the Larrakia Peoples highlighted how a strong Indigenous society could lose their rights after a couple of decades of forced assimilation and removal. These 20 odd years of government policy which saw a break in connection to land borne from a history dating back tens of thousands of years, robbed the Traditional Owners of any chance at having their native title recognised.
Yet recognising Indigenous peoples’ native title and their connection to land is essential to their wellbeing.
The preamble to the Native Title Act links the dispossession of Indigenous people of their land to the disadvantage of Indigenous Australians today. I agree strongly with the Hon. Ron Merkel QC’s sentiments that: “if we are ever going to start to solve the problems in modern Indigenous Australia, we have to give recognition to the existence and importance of community…and the reference to their community is a landholding community…”.
This is not to say that the native title system today does not provide benefits to Indigenous Australians. Beside the recognition of native title that is slowly occurring, one of the other major benefits of the law is the system it sets up for Indigenous peoples to enter agreements with other parties such as governments and industry.
Indigenous land use agreements, or ILUAs, provide one of the only ways the native title system provides opportunity for economic development. The agreements can include a range of benefits including employment, development, infrastructure, land management and town planning. There’s been significant gains that wouldn’t have been made but for the ILUA process in the Act.
But each ILUA is different and must be judged on its merits – a difficult task when few are publicly available.
As with all agreements, it is essential that they be reached with free, prior and informed consent.
These agreements are not available to everyone and as they don’t always include a determination of native title, they should not be seen to replace the need for the system of determining native title.
Anniversaries are an appropriate time to ask the big questions. So at the 15 year anniversary of the Act, we should reflect on whether it delivers on what it was intended to.
I don’t think it does. This is why my Native Title Report 2007 recommends that the federal Government undertake a comprehensive review of the law and its operation.
