Future of Indigenous land rights under native title uncertain

Twenty years after the Native Title Act was introduced to create a framework through which Indigenous Australians could claim back their traditional lands, questions are being asked as to how effective the landmark legislation has been.

The Native Title Act, introduced under the Keating Labor government 20 years ago, was a landmark piece of legislation.

Noongar man Glen Kelly at the South West Aboriginal Land and Sea Council in Western Australia says the Native Title Act has been critical to advancements in Indigenous land rights.

But he says the legislation has still been divisive within Indigenous communities because it's often misunderstood.

"It's a white fella legal construct and what it is actually designed to do, in my view, is not to enliven traditional law and custom but to control traditional law and custom," Mr Kelly said.

The Noongar are in talks with the West Australian government over a native title claim which includes some publicly-owned land in Perth, and other parts of the state's South West.

The WA government has offered the Noongar a landmark deal worth $1.3 billion to settle the claim, and that's currently under negotiation.

But even when claims are successful, Native Title does not necessarily give the Indigenous parties exclusive rights to the land.

In many cases, they have the right to live on the area or use it to for some ceremonial or traditional practices - including hunting.

Claims difficult to prove

Under the Native Title Act, claims can only be made over certain parts of Australia, such as unallocated or vacant Crown land.

So far there have been 213 successful Native Title determinations; 54 have been struck down. At present, more than 420 claims are outstanding.

One of the key requirements has been difficult to prove: a continuity of traditional laws and customs on the land being claimed since European settlement.

That proof often involves lengthy historical research as well as evidence from living parties; and even when claims are successful, Native Title does not necessarily give the Indigenous parties exclusive rights to the land.

Opposition to Native Title claims

Jon Altman is a land rights and native title expert at the Australian National University.

He says claims have often been complicated by opposition from the federal and state governments and by the resources sector.

"When you look back to the 1960s, mining occurred on Aboriginal reserves, on Aboriginal land without any consultation or negotiation with Aboriginal people."

Big mining admits it's taken some time to adjust to the Native Title system and much work remains.

"It's clearly taken a long time for us to get the system to a point where industry understands what the expectations are from a regulatory sense, but also in terms of the partnerships in the community in which it operates," said Melanie Stutsel, a spokeswoman for the Minerals Council of Australia.

The future of Native Title legislation 'uncertain'

The Native Title Act has been amended several times and there's another review going on now by the Australian Law Reform Commission, which is due to report back next year.

One of its key concerns will be to look at the time it takes to solve a claim.

Glen Kelly from the South West Aboriginal Land and Sea Council in WA says resolving that issue is critical to the future of the land rights movement for Indigenous people.

"The only people who have uncertainty in Native Title are the Native Title claimants. We also know now that the content of Native Title is very poor. It's the right to do things on land which someone else now owns and from our point of view, from this representative body's point of view we don't think that's acceptable."


4 min read

Published

Updated

By Darren Mara

Source: SBS


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