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Native Title Reform - Where should we go from here?

Aboriginal and Torres Strait Islander Social Justice


Tom Calma
Aboriginal and Torres Strait Islander Social Justice Commissioner
Australian Human Rights Commission

Launch of the Australian Law Reform Commission’s special issue of Reform 93 on ‘Native Title’ and inaugural Reconciliation Action Plan
Tranby Aboriginal College, 13 Mansfield street,  Glebe NSW

8 April 2009

Good morning ladies and gentlemen.

I begin today by paying my respects to the Gadigal people of the Eora nation, the Traditional Owners of the land where we gather today. I pay my respects to your elders, to the ancestors and to those who have come before us.    

I would like to thank Michael West for his warm welcome to country, and Lyndon Coombes, for hosting us at Tranby Aboriginal College. Thank you for my introduction and for inviting me to speak here today Professor Weisbrot.    

I would also like to acknowledge the Attorney-General, Robert McClelland, the federal Minister responsible for two very important issues - native title and the protection of human rights.    

The last few months have been a positive and energetic time to be the Aboriginal and Torres Strait Islander Social Justice Commissioner.  Since the Apology early last year, this government has been laying the foundations for a better relationship between Indigenous and non-Indigenous Australians, plank by plank.    

Just last Friday the federal government signalled its support for the Declaration on the Rights of Indigenous Peoples; another significant step. A watershed moment in this country’s modern history.

In supporting the Declaration, the government has committed to a framework which fully respects Indigenous peoples’ rights and creates the opportunity for all Australians to be truly equal.

The challenge now is for government to build understanding of the Declaration among government officials and the community; and importantly, incorporate the Declaration’s principles into government policy.

And today is another good day. We are here to celebrate two contributions that the Australian Law Reform Commission is making to this progress forward. For the first time an edition of Reform is dedicated to native title. The Commission is also launching its Reconciliation Action Plan.    

First I would like to congratulate the Commission for launching its Reconciliation Action Plan. Over 100 Plans have been made by corporations, schools, governments and organisations across the country – small and large. These Plans are not just words on paper, but solid and measurable commitments of how an organisation will make its contribution to closing the many gaps between Indigenous and non-Indigenous Australians.    

But I will now turn to native title and edition 93 of Reform.    

This edition, and the ideas, comments and advice that comes in its pages, presents itself at an opportune time.    

The Native Title Act is just over 15 years old. It is still a young law, on a very tough topic which Indigenous and non-Indigenous people alike, grapple with. Graeme Neate’s article in the journal refers to the fact that there are more than 500 judgements of the Federal Court on native title. This said, there is already much that can be learnt and there is much opportunity to improve.    

This edition of Reform outlines some of the major problems with the system and where the most effective improvements could be made, in order to ensure that native title plays a greater role in closing the gap.  After all, the land, and our ability to care for our land, is fundamental to the health and livelihoods of indigenous communities.    

The Attorney-General has acknowledged this significance of native title, and some of the system’s limits. He has already started the government’s own reform.    

Just a few weeks ago, the Native Title Amendment Bill was introduced into Parliament. If the Bill is passed, it is hoped that the efficiency of mediation of claims will improve by giving control of the management of claims to the Federal Court.    

It will also make a number of other changes to the law. For example, it applies the amendments to the rules of evidence for taking evidence of Aboriginal or Torres Strait Islander law and custom broadly, and it allows the Court to make consent orders about things other than just a native title determination.     

However, the amendments before Parliament do not tackle many of the more significant issues that commentators in this edition of Reform, including myself, would like to see if we are going to have a functioning, just, and equitable native title system in Australia.      

These changes need to be made if the government is going to bring the Native Title Act into line with Australia’s international treaty obligations and the principles in the Declaration on the Rights of Indigenous Peoples, particularly those articles that Megan Davis has summarised in her article in the journal.     

Some changes that are needed include better resourcing of Native title claimants and their representatives. Indigenous people must have access to sufficient resources to fully and effectively participate in native title. This includes resourcing organisations which are trying to secure a determination of native title or use procedural rights under the Act.

Resourcing constraints have a severe impact on native title. As Vance Hughston SC put it in his article in the journal, ‘the major problem with the system for resolving native title claims is not hard to identify. It is the significant time and resources needed to resolve those native title claims which are opposed by government and other respondents.’

In 2008, the Native Title Coordination Committee made recommendations to government for how it can improve the funding of native title. I look forward to seeing the results of the funding review in the May Budget.

However, as Vance Hughston SC identified, the amount of resources required for native title claims is largely a result of the substantive law and the heavy burden the claimants carry to prove native title. 

As we are now entering a period of serious economic downturn, the availability of funding for native title may well be reduced regardless of the Native Title Coordination Committee’s recommendations. If this is the case, it provides even greater reason for the next change that Is necessary; shifting the burden of proof.

I am pleased to see that discussion about which party should bear the onus of proving native title is back on the table. I have long voiced concern that the burden placed on Indigenous people to prove native title is simply too great, and in fact is unjust.

In his article in the journal, Chief Justice French has suggested that certain presumptions in favour of the Indigenous claimants would be appropriate. I agree whole-heartedly.

Such a shift would better reflect the indisputable fact that Indigenous peoples of this country are its Traditional Owners who had their own laws and customs before colonisation.

However, no matter who bears the onus of proof, the number of parties involved in the native title process will continue to impact on how claims progress and what agreements and determinations are made.

The number of parties to a claim increases delays and costs and can frustrate settlement of a claim. Amendments could be made to the Act to tighten the criteria by which respondents can become a party. On the flip side of the coin, the courts should ensure that as the claim progresses, parties who no longer have a relevant interest are removed.

Another area of difficulty is how, when and where native title has been extinguished.

The preamble to the Act states that where appropriate, native title should not be extinguished but revived after a validated act ceases to have effect.  However, this is not what occurs in practice.

The 1998 amendments significantly expanded the situations in which native title rights are extinguished permanently.  In my view, the breadth and permanency of extinguishment of native title is unnecessary. 

Amendments should be made to limit extinguishment to current tenure extinguishment and repeal the provisions that validate past extinguishment. This would do away with many substantive and procedural issues that arise when the parties come to deal with extinguishment.

Finally, I will turn the importance of agreements made under the Act.

Agreements made under the right to negotiate provisions, and Indigenous Land Use Agreements, are the door for many Indigenous peoples’ participation and engagement in the economy.

However, as Neva Collings pointed out in her article in the journal, the current scope for native title to contribute to economic development is problematic and should be remedied.

A number of articles in the journal discuss these issues, including by Tony McAvoy who highlighted the problems claimants may face if they are required to progress a claim at the same time as negotiating under the right to negotiate provisions

However Minister Macklin wrote in her article about a new government policy, which will look at how benefits from agreements made under the Act can be made to last for generations. I have recommended to government that the best way to achieve this is through ensuring Indigenous parties to agreements have access to the necessary expertise required to negotiate the best agreement possible. 

One way to do this would be for the Government to establish and fund a register of experts which Native Title Representative Bodies and claimants could access to negotiate the best agreements.

These are just a few of the possible improvements that could be made to the native title system to make it more accessible to Indigenous people; more just and equitable in its operation; and bring it into line with some of Australia’s international human rights obligations.

There are many more I could mention. There are issues with the right to negotiate, compulsory acquisition, compensation, and, as Monica Morgan and Alex Reilly pointed out in their compelling articles in the journal, the consequences of applying the rules of evidence to native title claims.

All of these hurdles are significant, but can be addressed if the government is willing.

When he was introducing the Native Title Amendment Bill in the House of Representatives last month, the Attorney-General said that ‘native title is about more than just delivering symbolic recognition’, it ‘is an opportunity to create sustainable, long-term outcomes for Indigenous Australians.’1

Although some such outcomes have been achieved through native title in its first 15 years, they are the exception, not the rule. But if the government does want to realise the opportunity that native title provides to create sustainable long-term outcomes, then the articles in this edition of Reform provide a good starting point. 

There is a great deal of collective knowledge and experience of the native title system, which many people are willing to proffer to government so that the system can be improved. Some of those experiences are now written in one place – this edition of Reform.    

And so I am excited to launch this journal today. And I am particularly eager for the Government to take this journal and use all of the knowledge and experience within its pages to ensure we realise the rights of Australia’s Indigenous peoples.

Thank you to the Australian Law Reform Commission for putting together this body of work, and thank you to the authors for your contribution to this important discussion on native title law in Australia.

And please remember, from self respect comes dignity, and from dignity comes hope.

Thank you.

[1] Attorney-General, ‘Rudd Government introduces legislation to improve the native title system’ (Media Release, 19 March 2009). At