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The Native Title Act 20 years on: where to from here? Themes from the Native Title Reports 1994–2012

Aboriginal Aboriginal and Torres Strait Islander Social Justice

AIATSIS National Native Title Conference

Acknowledgements

I would like to begin by acknowledging the Central Arrernte peoples as the traditional owners of these lands on which we are meeting today.

My people are the Gangulu from the Dawson Valley in Central Queensland. On behalf of my Elders I pay tribute to your Elders, both past and present.

I would also like to acknowledge:

  • Gail Mabo and thank her for her comments yesterday;
  • my Aboriginal and Torres Strait Islander brothers and sisters and non-Indigenous brothers and sisters who are here today; and
  • AIATSIS and the Central Land Council as the co-convenors of this conference.

Role of the Social Justice Commissioner

In January this year, we marked 20 years since the position of the Aboriginal and Torres Strait Islander Social Justice Commissioner was created. The role was established following the Royal Commission into Aboriginal Deaths in Custody, and in response to the extreme social and economic disadvantage faced by our peoples.

The office of the Social Justice Commissioner has a statutory requirement to report annually on:

  • issues that affect the exercise and enjoyment of our human rights in accordance with the Australian Human Rights Commission Act; and
  • the impact of the Native Title Act on the exercise and enjoyment of the human rights of Aboriginal and Torres Strait Islander peoples.

One of the benefits of this reporting requirement is that we now have 20 years of Social Justice and Native Title Reports that have been tabled each year in the Federal Parliament. These Reports have analysed the issues that affect our human rights and have set out recommendations for the Government.

Today, I want to briefly review some of the themes outlined in the Native Title Reports over this time – 20 years is a useful timeframe to review the issues, celebrate the advances that we have made, and consider where we need to go from here.

A 20 year review of native title: the Native Title Reports 1994–2012

Over a 20 year period, I think there are three key themes that emerge from the Native Title Reports.

  1. Native title is about recognising our fundamental human right to our lands, territories and resources as the First Australians.

In the High Court decision in Mabo, Justice Brennan said:

Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted.[1]

This resulted in the Native Title Act, as it was written in 1993, attempting ‘to accommodate the realities of the past and provide a fair way to deal with land in the future, based on contemporary notions of justice’.[2]

  1. While decisions made by the Courts and amendments to the Native Title Act by the Government have sought to ‘clarify’ our native title rights and interests, these decisions and amendments have instead diminished our rights and interests.

This reduction in our native title since amendments to the Native Title Act in 1998 has been widely criticised internationally by the Committee on the Elimination of Racial Discrimination and the Human Rights Committee. [3]

And domestically, the Chief Justice of the High Court, Robert French, has described the ‘heavy burden’ of native title litigation on ‘the human and financial resources of the principal parties’. [4]

  1. Perhaps most frustrating of all, while native title has produced many opportunities for Aboriginal and Torres Strait Islander peoples, it has also created processes and systems that have significantly increased the stress on our communities.

I have talked about some of these systemic problems with native title in my past two Native Title Reports. For example, in 2011, I discussed how the native title system can exacerbate and perpetuate lateral violence within our communities.

And in 2012, I wrote about how effective, culturally relevant and legitimate Indigenous governance enables us to make decisions about our lives, and about our lands, territories and resources.

But it is disappointing that these Reports, which have recorded a detailed history of the issues affecting our human rights, continue to include many of the problems that were reported by Mick Dodson in 1994.

And it is frustrating to spend time and effort on writing these Reports and not receive a formal response from Parliament.

So we really need to think about how we move from reporting these issues and making recommendations to using these Reports to achieve real change for our people.

It is my view that the Declaration on the Rights of Indigenous Peoples provides clear principles for us to achieve real change. These principles are our human rights to:

  • self-determination;
  • participation in decision-making, based on concepts of good faith and free, prior and informed consent;
  • respect for and protection of culture; and
  • non-discrimination and equality.

These human rights are not symbolic principles. Rather, they provide practical guidance for us to deal with the systemic problems that confront us during the process of determining our native title.

Where do we go from here with native title?

Since this conference last year, we have seen the introduction of the Native Title Amendment Bill 2012 which proposes some positive, although minor, amendments to the Act. I welcome these amendments by the Government.

However, this commendation is balanced by strongly urging the Government to introduce further reforms to the native title system. This must occur if we are to increase our opportunities to achieve meaningful and long-term outcomes from native title.

But before I talk about reforming native title, I think it is important to recognise what we can agree on in relation to native title.

In my opening remarks to the Roundtable on the Native Title Amendment Bill that was held by House Standing Committee on Aboriginal and Torres Strait Islander Affairs in February, I said that:

  • We can agree that native title is not going away – it has been a consistent feature in our landscape over the past 20 years and it will continue forever.
  • We can agree that native title is expensive – for all parties.
  • We can agree that we want native title to be determined in shorter timeframes.
  • And we can agree that we cannot accept the status quo of the Native Title Act as it is currently drafted.

So we need to ask what we must do to change the status quo so that we can realise real change for our people from native title.

In my view there are two outstanding reforms that we need to consider.

First, we need to amend the Native Title Act to establish a presumption of continuous connection in relation to a native title claim once native title claimants have met the requirements of the registration test.

And second, we need to enable and support PBCs as the organisations that govern our native title.

Presumption of continuity – what does this look like?

There have been extensive discussions and analysis over the past few years about what the presumption of continuity would look like in practice. In brief, there are two issues:

  1. The high level of information that needs to be provided by Aboriginal and Torres Strait Islander peoples to prove their traditional connection to country.
  2. The burden to provide and prove this information about our traditional connection to country is borne by us – despite written information and records often being held by governments.

This process is onerous – both in terms of time and cost – and exacerbates lateral violence within our communities.

I mentioned earlier some issues that we can agree on.

I think that we can also agree that we all want certainty about who speaks for what country and who benefits.

We can agree that we need a process to decide and agree on who are the people to speak for country. But – and this is where I strongly differ from the current system – this process should and must be undertaken by Aboriginal and Torres Strait Islander peoples.

Article 33 of the Declaration states:

  1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions… [and]
  2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.

We have a right – a human right – to determine membership of our native title groups ourselves.

But there are questions that we need to address.

It is on the public record that the Federal Court in March this year made orders because of concerns that a few members of an unresolved native title claim in Queensland were financially benefiting. These orders require all funds paid to the native title claim group are held in trust until their native title is resolved.

This example illustrates that we need to take control of these decisions – including making decisions about these difficult and contentious issues – and ensure we have governance processes in place that include the most vulnerable in our communities.

Governance of our Prescribed Bodies Corporate

The second outstanding native title reform is enabling and supporting our PBCs to effectively govern lands, territories and resources on behalf of native title holders.

In last year’s Native Title Report, I discussed the need to:

  • align our community governance and PBC organisational governance;
  • ensure PBCs have adequate funding and resources;
  • support the administrative, legal and business capacity of PBCs;
  • acknowledge native title rights and interests that enable native title holders to achieve their economic, social and cultural aspirations; and
  • support the capacity of PBCs to manage native title and engage with alternative land/resource management and cultural heritage processes.

Over the past couple of days, there have been several sessions on the current review of native title organisations. In light of this review and given the increasing numbers of native title determinations and PBCs, it is essential we support the future governance of our native title.

Conclusion

In conclusion, if we accept that there are many opportunities for our peoples from native title that have not yet been realised and if we accept that we cannot continue the status quo of the Native Title Act as it currently operates, then we must accept that we need to do things differently.

Thank you.

[1] Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR – at [42].

[2] Z Antonios, Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title
Report 1998 (1999), p. 11. At http://www.humanrights.gov.au/social_justice/nt_report/index.html#1998 (viewed 10 May 2012).

[3] See, for example, 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), para 16. At http://www2.ohchr.org/english/bodies/cerd/cerds66.htm (viewed 18 July 2011); Human Rights Committee, Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR/C/AUS/CO/5 (2009), para 16. At http://www2.ohchr.org/english/bodies/hrc/hrcs95.htm (viewed 18 July 2011).

[4] R French, Chief Justice of the High Court, Lifting the burden of native title: some modest proposals for improvement, Australian Law Reform Commission (2008). At http://worldlii.austlii.edu.au/au/other/alrc/publications/reform/reform93/3.html (viewed 6 May 2013).                                

 

Mick Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner