Calma, Tom --- "Native title in Australia: Good intentions, a failing framework?" [2009] ALRCRefJl 2; (2009) 93 Australian Law Reform Commission Reform Journal 6

---

Native Title in Australia: Good intentions, a failing framework?

By Tom Calma*

On New Year’s Day 2009, Australia celebrated the 15-year anniversary of the commencement of the Native Title Act 1993 (Cth) (NTA).

It was a momentous occasion in the relations between Indigenous and non-Indigenous Australians. The Parliament recognised this country’s real history of dispossession and colonisation, and created a way forward:

[the High Court’s decision in the Mabo case] presented a huge opportunity for Australia; that here we had a basis for reconciliation formerly denied us but that we had to seize the opportunity...and to do something real and material about a genuine basis of reconciliation.¹

So when I am asked how the native title system is operating in Australia, it is difficult to give a simple answer. On the one hand, recognition of connection to land and other beneficial agreements and relationships have been achieved for some Indigenous peoples. But on the other hand, it is also a tough system, which at times can be quite cruel. Ultimately, I am not aware of anyone who considers that native title is operating in a way that achieves what it was intended to, nor comes close to realising the human rights of Aboriginal peoples or Torres Strait Islanders.

Every year, I write a Native Title Report which lays out the truths about how the system continues to grind along excruciatingly slowly and how the courts consistently adopt a narrower and more limited interpretation of what native title is. Indigenous people wait, and work, and expend all their effort, resources and hope on a system that one day might recognise some of their rights to protect and practice their culture. Recently, the National Native Title Tribunal revealed that the average contested claim takes more than six years before a determination is made.² That is six long years for our elders who often pass away during hearings, fighting for rights to land that have been denied their whole lives.

Reducing the High Court’s Mabo decision to a piece of legislation has proven a difficult task. Rights have been circumscribed, and the power has been shifted to non-Indigenous land owners to ensure ‘certainty’. For Indigenous peoples, certainty has meant limited recognition of their native title rights and interests and extremely fragile protection.

Amendments to the NTA in 1998 seriously undermined any benefits the Act could offer for Indigenous Australians. The amendments provided the ‘bucket loads of extinguishment’ that the then government promised, and shifted the fragile balance of power and possible benefits from Aboriginal and Torres Strait Islander people, to the already powerful non-Indigenous interests.

Human rights treaty committees of the United Nations have observed that the amendments violate Australia’s international human rights obligations. The United Nation’s Human Rights Committee and the Committee on the Elimination of Racial Discrimination have both voiced their concern that the 1998 amendments roll back the ‘protections previously offered indigenous peoples and provide legal certainty for Government and third parties at the expense of indigenous title’.³

The result is that native title is at the bottom of the hierarchy of Australian property rights. Recently, ABC News reported that the Northern Territory manager of the National Native Title Tribunal placated non-Indigenous parties to a native title claim, by stating:

‘Native title has to yield to anyone else’s interests,’ he said. ‘So in those areas where Native Title has been found to exist, say for instance on the pastoral stations ... the rights of the pastoralists prevail. They can continue to get on with their business.’ ⁴

It is a disturbing, but honest reminder of just how little protection and respect native title rights and interests receive.

The amended Act, combined with the courts’ interpretation, have resulted in a system which now offers extremely limited and delayed recognition of native title. It is now far from the original intent of the law.

This is evidenced by many Federal Court decisions. We have seen a number of cases where a court has denied any recognition of native title rights and interests in the same breath as acknowledging that the peoples before them are the same peoples that owned that land more than 200 years ago.

There are countless reasons why the law may have denied their rights. For many, it is because at some point since colonisation, white settlement and policy meant that the claimants lost their connection with their land, even if it was just for a moment. The more a community was hurt by government’s policies, the less likely they can gain recognition of their rights.

The compensation provisions have also failed abysmally. There has not been one successful compensation claim under the NTA. In 2006, applicants who primarily represented the Yankunytjatjara and Pitjantjatjara people, claimed compensation for the extinguishment of their native title rights and interests in Yulara. Yulara, in the Northern Territory, is a town which sits in the shadows of Uluru. Their claim for compensation was denied.⁵ If the Traditional Owners of the red centre of this country, an area which most Australians see as the heart of Indigenous Australia cannot gain native title—let alone compensation—then where will Indigenous people be able to succeed?

Even though the basic framework for native title has been weakened and gradually undermined over the years, the pressure on the system to provide better outcomes for Indigenous peoples is increasing. More and more, native title is being touted as an important remedy for Indigenous peoples’ ambitions for their land, while governments and some communities shift their focus to how they can use the existing system to achieve broader benefits.

For example, the Minister for Indigenous Affairs and the Attorney-General have formed an informal working group to develop suggestions to ensure that the benefits that Indigenous communities receive under native title agreements can contribute to addressing economic and social disadvantage of communities today and into the future. These agreements are initiated and negotiated under the limited procedural rights Indigenous peoples’ still have under the NTA ‘right to negotiate’ provisions.

The government has stated that it sees that native title has a role to play in closing the gap between Indigenous and non-Indigenous Australians, and can be used to overcome disadvantage.⁶ The Attorney-General has committed to making native title work ‘better’. To do this, he has committed to working on ensuring all parties to native title have an open and flexible-minded approach to native title negotiations, avoiding litigation, and achieving ‘more, and better, outcomes’ from native title negotiations.⁷

And so the system has come to a critical juncture. If the government continues to slowly morph the system in this direction through policy announcements, but without strengthening the underlying structure of the system, then it will continue to be laden with broken promises to Indigenous communities. There is a pressing need for an over-arching, system-wide look at reform options for the native title system.

Some of the critical issues that need to be addressed are as follows.

Firstly, there are considerable constraints in the NTA that will prevent parties making progress in improving native title outcomes. Many of these restrictions originate from the initial scope of the NTA, which was intended to have somewhat limited application. The 1998 amendments made the situation significantly worse. Secondly, ‘attitudes’ to policy are discretionary and depend on the elected government for each jurisdiction. It does not create certainty, predictability or equity in native title outcomes across Australia. If a government changes then there is no guarantee that the flexible approach will be maintained. The different outcomes that result after a change in government or a change in a government’s approach have been seen many times.

As an example, recently an agreement was made to hand Karlu Karlu—a sacred site known to many as the Devil’s Marbles—back to its Traditional Owners, the Warumungu, Kaytetye, Warlpiri and Alyawarr peoples. Their original land claim under the Northern Territory land rights legislation was lodged in 1980, but the claim was dismissed by the High Court. On this basis, the then Country Liberal Party government refused to deal with the Traditional Owners.

However, in 2001, when the Australian Labor Party won government in the Northern Territory, it chose to negotiate with Traditional Owners, and came to an agreement to hand back Karlu Karlu, and jointly manage the surrounding national parks. The Central Land Council, who undertook the negotiations on behalf of the Traditional Owners, confirmed the impact that this protracted battle had on the Traditional Owners:

Many people have passed away: one custodian lost all of his brothers over the years but continued to fight for their site ... I congratulate all of them for their courage, persistence and resilience—it’s been a tough, and often a very sad road for all of them and I sincerely hope that these hand backs will provide a sense of peace and relief. I also look forward to the joint management arrangements that follow giving them the level of recognition and involvement in the management of these areas that they deserve for many years to come.⁸

Finally, I am concerned about the breadth of change that can be achieved when nearly all of the state and territory governments have indicated to me that they consider that they have already been acting in a flexible manner for years.⁹ Subsequently, they all naturally support the federal government’s approach, but it begs the question: how much more flexible will these governments feel they can be within the existing framework?

The Attorney-General recognised that ‘tinkering at the edges is not enough’.¹⁰ The NTA must be designed to provide the outcomes that are promised. That is, one that recognises native title rights and interests as defined in Mabo for those groups that can establish it, but also one which guarantees a range of other outcomes if they can’t.

It is also worth recalling that it was always recognised that native title should not stand alone and that it should be one part of a more comprehensive response to achieve land justice for Indigenous peoples. Former Prime Minister Paul Keating recognised this when introducing the Act:

The beginning is, as I said, a basis for social justice and reconciliation ... The government will be introducing a social justice package next year amongst which we will have a land acquisition fund, the purpose of which will be to allow Aboriginal people to buy pastoral leases and to convert them into a native title ... In this way we believe that those Aboriginal people dispossessed of their land, who would not have the opportunity of benefits under this legislation or under the High Court’s Mabo decision, will be able to secure land by purchase which will then have a native title and then have all the negotiating rights attached to it ...¹¹

The preamble of the NTA clearly states that the law was intended to be one part of a three pronged policy approach:

• the NTA would create a system that would recognise a form of native title ‘that reflects the entitlement of Indigenous inhabitants of Australia, in accordance with their traditional laws and customs, to their traditional lands’;
• a land fund would be established which would assist Aboriginal peoples and Torres Strait Islander peoples to acquire land;
• a broader social justice package would complement these two land-specific policies.¹²

The Indigenous Land Corporation (ILC) constitutes the land fund. It administers a Land Account, but it is questionable whether in its administration, the ILC meets the original intent of the fund and provides an accessible and effective alternative form of land justice when native title is not available. The Act which provides the functions of the ILC (the Aboriginal and Torres Strait Islander Act 2005 (Cth)) acknowledges its role in reparation for dispossession in its preamble, but does not draw any connection to native title and the complementary role the ILC was created to play. Many Aboriginal people and Torres Strait Islanders have voiced confusion and frustration to me about the ILC’s role, activities and the outcomes it is achieving.¹³

The social justice package has yet to come to fruition. By the time a package was being designed the government had changed, and the package was rejected. However, the new government’s National Platform states that it will ‘recognis[e] that a commitment was made to implement a package of social justice measures in response to the High Court’s Mabo decision, and will honour this commitment’.¹⁴

The social justice package and an effective land fund are needed to ‘rectify the consequences of past injustices’.¹⁵ The government will also need to come to terms with the failings of the native title system.

The government has committed itself to forging a new, enduring relationship with Aboriginal and Torres Strait Islander peoples, which facilitates reconciliation. Whether we like it or not, the native title system is currently one of the only legally entrenched systems through which this can be achieved. As a result, it holds many of the hopes and aspirations of Indigenous Australians. For every day that native title drags along, it is another day that Australia’s First Peoples have their rights cruelly and unnecessarily denied. The Attorney-General stated that as a global citizen in the 21st century, we can no longer sit on the grandstand and criticise other nation’s human rights’ records; that we have to enter the playing field to engage in a spirit of cooperation.¹⁶ But the Attorney-General’s position on the native title playing field is not as a winger waiting for the ball. He should be playing the position he plays in real life on the field in Canberra—the breakaway—the man who starts a new phase of play, gains possession after handling errors and, hopefully, scores a try.

* Tom Calma is the Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission. He is an elder from the Kungarakan tribal group and a member of the Iwaidja tribal group whose traditional lands are south west of Darwin and on the Coburg Peninsula in Northern Territory, respectively.

Endnotes

1 Commonwealth, Parliamentary Debates, House of Representatives, 22 December 1993 (The Hon Paul Keating, Prime Minister).

2 National Native Title Tribunal, National Report: Native Title, June 2008.

3 Human Rights Committee, Concluding Observations of the Human Rights Committee: Australia, UN Doc A/55/40, [498-528] (2000) and Committee on the Elimination of Racial Discrimination, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/ AUS/CO/14 (2005).

4 ABC Darwin, Indigenous groups make native title claims, 25 October 2008, <www.abc.net.au/news/ stories/2008/10/25/2401038.htm?site=darwin>, at 2 December 2008.

5 Jango v Northern Territory (2006) 152 CLR 150; Jango v Northern Territory (2007) 159 FCR 531.

6 R McClelland (Attorney-General), speech delivered at the NSW Young Lawyers Forum, Sydney, 29 October 2008.

7 R McClelland (Attorney-General), speech delivered at the Negotiating Native Title Forum, Brisbane, 29 February 2008.

8 Central Land Council, ‘Devils Marbles handed back to Traditional Owners’, press release, 28 October 2008.

9 Information received in correspondence to me, in response to requests for information for the preparation of the Native Title Report 2008.

10 R McClelland (Attorney-General), speech delivered at the Negotiating Native Title Forum, Brisbane, 29 February 2008.

11 Commonwealth, Parliamentary Debates, House of Representatives, 22 December 1993 (The Hon Paul Keating, Prime Minister). See also comments by Justice Brennan in the Mabo case: Mabo v Queensland (No 2) (1992) 175 CLR 1 per Brennan J.

12 Native Title Act 1993 (Cth), Preamble.

13 Many of these comments were informal comments made to me at the AIATSIS Native Title Conference 2008, held in Perth, June 2008.

14 Australian Labor Party, Australian Labor Party National Platform and Constitution (2007), at: <www.alp.org. au/platform/>, chapter 13.

15 Native Title Act 1993 (Cth), Preamble.

16 R McClelland (Attorney-General), speech delivered at the NSW Young Lawyers Forum, Sydney, 29 October 2008.