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Mabo at 30 – Boodjar: Boorda The Piddington Society

Aboriginal Aboriginal and Torres Strait Islander Social Justice

Jalangurru lanygu balangarri. Yaningi Yatharra ngindaji muwayi indirranggu, Noongar yani U.

I acknowledge all the countries we gather on today. My deepest respects to all our elder’s past, present and emerging.

I would also like to take the opportunity to pay tribute to the memory of Mr Eddie Koiki Mabo and his co-claimants Reverend David Passi, Sam Passi, James Rice and Celuia Mapo Salee.

30 years ago, the historic Mabo decision changed the Australian history books, overturning the myth of ‘terra nullius’ and introduced the concept of native title to the Australian legal system. This was a momentous decision delivered by the high court. The common law doctrine of native title proved that Aboriginal peoples and Torres Strait Islanders have inherent rights and connections to our lands—across the Australian continent—rights never extinguished by the British.

We never ceded sovereignty, and the legal concept of native title proves that our inseparable connection to these lands and waters stretch over tens of thousands of years prior to the British assertion of sovereignty.

This decision was such a critical milestone in this nation state’s history, recognising the rich and layered cultural diversity of the continent, and paving the way to consider how our rights could co-exist, and be embraced by, the Australian nation.

There was so much promise and potential within that decision.

Native title was to be the foundation for a comprehensive approach to agreement-making and settlement.

The passing of the 1993 Native Title Act was a legal mechanism created by the Australian Parliament to provide a solid framework to manage native title claims over land and water.

The Act itself should never had existed alone. It was to be one part of a suit of complementary measures to deliver true justice and deal with the unfinished business of reconciliation, compensation and restitution, paving the way for structural settlement with the Australian state.

It was thought that through the Act, a social justice package for Aboriginal peoples and Torres Strait Islanders could be implemented. The intention of the package, as advised by the Aboriginal and Torres Strait Islander Commission (ATSIC), was broad and visionary, encompassing compensation for dispossession, governance arrangements, representation, equity in service provision, economic participation and heritage protections. It would complement the Land Fund administered by the Indigenous Land Corporation and work with other key arrangements already in place like ATSIC, and the Council of Reconciliation and its mandate.

This full and purposeful approach would be for the benefit of all Australians. But first and foremost, it would embrace all our First Nations peoples and absolutely those whose native title rights had been cruelly extinguished by the atrocities of colonisation and policies of ongoing discrimination. No one would be left out.

This way ahead is captured in the spirit of the Native Title Act preamble. The preamble acknowledges ongoing dispossession and the failure of successive governments to reach a lasting and equitable agreement without peoples. It states that the special measures of the Act should rectify past injustices, that governments should facilitate negotiations that satisfy claimants aspirations to their land, including those which are economic and, significantly, that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history and our rich and diverse cultures fully entitle us to.

I won’t go into the recent history—the years of promises, disappointments and setbacks. I am sure you are all aware that with a change of government the social justice package was never implemented. ATSIC was disestablished and the decade of reconciliation amounted to very little.

The consequences of limiting our rights and interests to this Act has been varied—through years of protracted legal battles between claimants and governments there have been successes, of course. And significant determinations that over and over again prove our unbreakable connection to this land. But alongside this there has been a huge amount of pain and heartbreak.

The Wiyi Yani U Thangani project, meaning ‘women’s voices’ in my language Bunuba, set out, in 2018, to capture the rights, interests and aspirations of First Nations women and girls across Australia. A part of the findings document the issues of native title claim processes. Engagements with over 2000 First Nations women and girls, from all regions of Australia, speak to a long-winded and complex system that is difficult to navigate and where the burden of proof required does not align with the oral nature of our culture. Women have spoken of elders interrogated by lawyers and then passing away before a determination, and families being divided over who has rights to land or excluded from claims because there is no written evidence of connection. It is devastating for so many, compounding the intergenerational trauma of dispossession, the very trauma it was meant to rectify.

Since it was passed, almost every time the Native Title Act is amended it is to reduce our rights and interests. It continuously weakens the spirit of the Act’s preamble.

This was apparent when the Act was amended in 1999. The United Nations Committee found these amendments discriminated against native title holders – it highlighted that the native title system in Australia is governed by legislation that impedes our enjoyment of human rights and undermines some of the key principles established in Mabo about recognition of Indigenous law and culture.

In attempting to make the Act work within a framework never designed to deal with the full extent of dispossession or the journey of reconciliation, it continuously strains under enormous pressure. Each time it fails to deliver the healing, the social and economic benefits we actually need, we forget the original purpose of native title and what it could still achieve.

We must remember, in thinking about the future, that native title is not the Native Title Act.

Recently, I had the privilege to attend the Garma festival on Yolngu lands, where the Prime Minister and the Hon Linda Burney re-affirmed their commitment to implementing the Uluru Statement from the Heart, in full.

30 years on from the historic Mabo decision, we have an opportunity to make history again, by providing First Nations people with a Voice, substantive recognition in the foundational document of Australia, a truth-telling processes and a framework for makarrata—for agreement-making or treaty.

The Uluru Statement has reawakened everyone to the need for a fundamental   re-set in the relationship between First Nations peoples and all Australian governments.

It is time to remember the possibilities of native title.

I believe we are at the beginning of a new era of structural change, beginning with the constitution, that will lead to treaty. To get the dialogue, the debates and the processes right during this era we must re-engage with the principles of native title—principles that are meant to enable and empower, not confine us to western legislation that cannot grasp, by any stretch of the imagination, the enormity of our cultural and societal realities. The current legislation is not a framework that can take us to where we are heading.

So, what can?

There is so much that we have advocated fiercely for and worked tirelessly to develop that will enable us to achieve the full implementation of the Uluru Statement.

In my work, since the release of the Wiyi Yani U Thangani Report in 2020, my team and I have been exploring the various approaches to implementing the Report – last year we produced an Implementation Framework.

Unsurprisingly, a common discussion which emerged in all the engagements I had with women and girls was about what needs to happen structurally to develop better policy and confront and overcome the raft of issues women, children and families deal with on a daily basis, from family violence to poor housing, a lack of jobs, limited access to services and few economic opportunities. The response was always that we need self-determination over our lives and the places we live, driven by our cultural and societal principles and knowledges, maintained through being able to access and live on our traditional countries. And how do we achieve this? Women would always finish by saying to me, we need treaty, with the Australian public and all governments.

Consequently, a significant section of the Implementation Framework focuses on our women’s involvement in driving agreement-making processes.

We put forward the need to bring back the principles of the social justice package and to use the articles of the United Nations Declaration on the Rights of Indigenous Peoples to develop a negotiation framework that can guide and progress agreement-making dialogues. At the heart of this framework should be the foundational principles of native title that can help us respond to the interconnected elements of land, social, economic and ecological justice and rectify past and contemporary injustice and the intergenerational consequences of dispossession.

Such a framework would realise and deal with the value of the entire Indigenous Estate, not just separate segments of land recognised by western legislation.

In moving forward, we also cannot deny what we have created through the Native Title Act.

In pursuing settlement there is a need to embrace and strengthen the institutional and organisational fabric that has been formed through native title and different land claim and management processes, including PBCs and various representative land rights bodies. We have this incredible landscape of organisations, run by our people, representing our rights and interests and holding a wealth of knowledge about our peoples and countries. We need to seriously invest in their capacity and remove regulatory burdens so our peoples can self-determine the way ahead for agreement-making.

It is time to place native title in the new era of agreement-making. In doing so we can unlock the economic, social, cultural and economic potential of our lands and waters—our homes, the places we live, love and can thrive within. Through a settlement process we can comprehensively and holistically deal with issues that have been wrongly siloed in western policy and legislation – all of which are captured in Wiyi Yani U Thangani.

With the Uluru Statement we are casting our sights on a bright horizon that was for so long obscured by petty politics, unimaginative legislation and policy incrementalism. With the clarity of a new dawn, I can see an Australia that embraces our 65,000 plus years of cultural and societal living heritage, that threads it through all education and invests in our country-based economies and sciences that can heal severely damaged ecosystems and combat climate change. I also see a mature Australia that accepts past atrocities without the anger of denial and fear and is ready to compensate our loss and grief and rectify injustices through seriously investing in our social infrastructure and the regeneration of our knowledge systems.

But most importantly I see an Australia that is ready and saying ‘yes’ to a constitutionally enshrined Voice to Parliament, so we can get to work on embarking on the era of agreement-making.

I know I am talking to many lawyers today. We all know that being a lawyer is not just going to court, or negotiating mergers and acquisitions, or division of assets. Your experiences and perspectives contribute to policy and law reform. But you have to believe that we are heading somewhere that has not gone before and it is time to disrupt the native title system as it stands.

You are so critical to the rising of this new dawn, to placing native title back where it belongs, as the foundation of the real agenda to achieve reconciliation and structural settlement.

The time to act is now.

Thank you.

Yaninyja.

 

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Ms June Oscar AO, Aboriginal and Torres Strait Islander Social Justice Commissioner

Area:
Aboriginal Aboriginal and Torres Strait Islander Social Justice