The Native Title Act, 20 years on

It's been two decades shaped by land rights revolution.

A special bush sitting of the Federal Court in the NT community of Pigeon Hole in 2011 to determine native title claims - AAP.jpg

Source: SBS

It's been two decades shaped by land rights revolution.

(Transcript from World News Radio)

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

Its goal was to create a framework through which Indigenous Australians could claim back their traditional lands.

But how effective has the Native Title Act been?

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Over the past 200 years, the painful story for many Indigenous Australians and their ancestors has been one of dispossession, and cultural dislocation.

It's been a long march for Indigenous rights and 20 years ago a landmark law sought to begin redressing some past misdeeds, relating to traditional lands.

The Native Title Act which came into effect in 1994 introduced an entirely new concept of land ownership under Australian law.

Introduced in response to the historic Mabo ruling by the High Court in 1992, the Act established Native Title as a form of ownership to which some Indigenous Australians were entitled.

Glen Kelly is a Noongar man who heads the South West Aboriginal Land and Sea Council in Western Australia.

He says the Native Title Act has both helped and hindered his work fighting for Noongar traditional lands.

"This might be fairly strange from me being the CEO of a Native Title representative body but we're very critical of the content of the Native Title Act, Native Title law and Native Title rights themselves."

The West Australian government has offered the Noongar a landmark deal worth $1.3 billion to settle a native title claim which includes some publicly-owned land in Perth, and other parts of the state's South West.

Mr Kelly says the claim wouldn't have been possible without the Native Title Act.

But he says 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."

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

The toughest requirement is that claimants have to be able to prove a continuity of traditional laws and customs on the land being claimed since European settlement.

That 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.

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

So far there have been 213 successful Native Title determinations; 54 have been struck down.

Some have come at the end of long and painful court cases.

But increasingly, the federal government-funded Native Title Tribunal has promoted what are known as consent determinations - meaning the claimants and any other parties affected all agree to a negotiated settlement - usually a much faster and less expensive process.

At present, more than 420 claims are outstanding.

In many cases, the elders who launched the claims haven't lived to see them resolved - and many of the benefits of native title haven't flowed through to the communities that need them most.

There've been many landmark moments since the Native Title Act was introduced, from the Wik decision in 1996, to the claim of the Bandjalang people on the New South Wales north coast, which took 17 years to resolve.

Then there's the failed 1998 claim of the Yorta Yorta people from north central Victoria and southern New South Wales.

In that case, the Federal Court ruled the Yorta Yorta's traditions and customs had been washed away by what a judge termed the "tide of history".

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.

Professor Altman says, historically, the resources sector has also been an opponent of the land rights movement.

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

Recognition of Native Title does not, by itself, give any exclusive rights to land - for example, through ownership of mineral resources.

But in practice, traditional owners commonly have the right to negotiate with resources companies over exploration or can enter into a land use agreement to settle on financial payments for the right to prospect - though this varies from state to state.

Professor Altman says though the Native Title Act has helped realign relations between the resources sector and Indigenous groups.

"So what we've seen, through what I refer to as a land title revolution that's come on the back of land rights in the 1970s and 80s and then Native Title in the 90s and into the 21st Century, has fundamentally reset the relationship. But I think again we need to emphasise that relationship is far from equal. There's still an asymmetry there that needs to be rectified."

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

Melanie Stutsel is a spokeswoman for the Minerals Council of Australia.

"Look I think the Native Title Act and the Native Title system is one of the most complex legislative environments in which we work. 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."

The Native Title Act has been amended several times - the most significant under the Howard government in 1998.

That was in response to the High Court's Wik decision, which found that native title could co-exist with certain pastoral leases.

There's another review going on now, by the Australian Law Reform Commission.

One of its key concerns, the long time it's taking to solve a claim.

It's also looking at the difficulty of claimants having to prove continuity of traditional laws and customs.

Professor Lee Godden is heading the Commission's Native Title inquiry.

"There have been calls for amendments to the Native Title Act for some time and indeed we've seen a process of significant amendments to the Act over time, so it's timely to look at how it's working 20 years on."

The Commission is to report back by March next year.

Glen Kelly says Indigenous groups are hopeful the Commission can find a way to make future Native Title determinations faster and more beneficial for Indigenous Australians.

"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 rep body's point of view we don't think that's acceptable."


7 min read
Published 28 February 2014 at 1:00pm
By Darren Mara
Source: SBS