• The On Country program will see Indigenous Elders and Traditional owners combat reoffending and crime with culture. (Getty Images)Source: Getty Images
OPINION: Who is Native Title helping in this current application of the law? writes Jack Wilkie-Jans.
Jack Wilkie-Jans

28 Jun 2018 - 4:42 PM  UPDATED 6 Jul 2018 - 4:52 PM

Traditional Ownership is at first glance a very straightforward notion, or rather, it ought to be.

With the introduction of Native Title post-Mabo, the whole landscape between land usage, land management and land ownership has changed. From 1992, it was to become less colonial and ambitioned, to seeking out a worldlier, Australian-unique approach between the past and the future.

However, without precedent, the implications and challenges of Native Title could not have been foreseen, therefore, not able to have been addressed in the early drafts of the legislation.

If you’re white or black and live in regional areas, you will know the stresses of Native Title. If you’re white, you will know of the lengthy costs associated, and if you’re black, you will know the heartache of proving your connection to your own land.

It can be a trying process, often made worse when fellow countrymen are so often spurred on by external forces to discredit their own, splitting hairs between degrees of Aboriginality to an extent where, were they not black themselves, it would be seen as beneath the dignity of modern people.


More than one claimant 

The crux of the Native Title Act 1993 was designed to not just uphold the Mabo ruling, but also to protect Indigenous connection to land and preserve ancient cultural heritage.

Aside from a ruling, Native Title is managed is via. Indigenous Land Use Agreements (ILUA). ILUAs are contracts determining, or attempting to strike a balance, between cultural uses of land by Traditional Owners and other uses by landholders. This process is known as negotiation, and in theory is supposed to work well.

In regards to Indigenous and non-Indigenous claims, these tend to go smoothly, usually due to the fact that it’s assumed Native Title applies unless the tenure of the land held by non-Indigenous landholders stipulates otherwise. In Cape York Peninsula, this is very rare. Where things tend to become problematic, is when there is more than one party which the non-Indigenous proponents of the claim have to negotiate with.

Enter, the ugly underbelly of Native Title, one which pits black against black and is usually fuelled by family feuds, differing intentions of the use of the land in question, as well as meddlesome lawyers and anthropologists who would have no opinion on such matters were they not making small fortunes due to it.

ILUAs were intentioned initially to negotiate a coexistence agreement upon country for the purposes of cultural pursuits. These were initially set out as being; teaching and practicing of tribal customs/ceremonies and traditional lore, to be able to hunt and fish on site, to protect scarred sites or locales within the area of cultural or environmental significance. Other terms negotiated under ILUAs sometimes include the right to live on Country if it’s held under a lease agreement of some kind and to uphold employment quotas of members from the local tribes or clan groups in whatever industry or land use is taking place. 


Understanding the legal limits of Native Title

The famous Wik vs. Queensland case in 1996 moved Native Title into more industrial matters and looked at how to apply the precedent of Mabo on areas of land which were already occupied by historic landholders.

By upholding the values of the Mabo ruling (being that Indigenous rights precluded the exclusivity of the land under non-Indigenous landholders), the Wik decision stirred much controversy among pastoral landholders across the state. This was largely by the manipulation of former Prime Minister John Howard's controversial 10 Point Plan, where he somewhat changed the rules that the Wik claimants were playing by. 

At this time Native Title was such a new concept and it seemed almost anything was possible by claiming Native Title. As such, it was difficult for people to understand the legal limits of Native Title.

Fortunately, the tables of extreme Black Nationalism and Colonial Nationalism didn’t quite turn, and the process of Native Title was found to be, yes expensive, but rather tame. Tame, in that co-existence ultimately became the ethos of the legislation not re-possession (or even, further dispossession).


Commercial in confidence 

Since 2014 the controversial Cape York United #1 Claim (or One Claim) has been subject to what irks all Native Title claims: infighting.

The main sources of controversy of this claim is that only nine claimants have brought about an application for a claim across the entire Peninsula and that existing claims where rulings have not yet been determined and are in fear of being swallowed up. Another chief concern of the One Claim is that the ILUA over the Peninsula Development Road’s upgrade project (the $260.5 Million Cape York Region Package) is classified as “commercial in confidence” which is unusual for an ILUA.

Where the ILUA becomes the basis for criticisms of the One Claim, is that this document stipulates terms of conditions of land use, and when regarding public infrastructure projects, it can set a precedent for future buffaloing of project work, contracts and budgets. When Traditional Owners of a land mass cannot access an ILUA negotiated by their Native Title representative body (in this case it is the Cape York Land Council) one has to ask: who is Native Title helping in this current application of the law?

With multiple attempts by some organisations in the past to seek road tolls over public roads in the Cape that were all vaguely under the umbrella of Native Title, people need to be set straight as to the difference between genuine royalties for compensation, and taxation (such as in a road toll scenario). Furthermore, it begs reflection as to what Native Title is being used for today. Is it a vehicle to assert active management and profitable, sustainable use of traditional lands, or, is it merely a cash cow?


Money for purpose vs. sit-down money 

Genuine royalties, in cases where mining activity is present does compensate individuals for the loss of land use by another party. When royalties are administered correctly it can inject otherwise unattainable means for people to start up enterprises, enabling them to participate in the broader economy. This is 'money for purpose’ and is an increasingly less popular motive of Native Title than what is widely called ‘sit-down money’.

Just because it is 'Native Title', doesn’t mean it shouldn’t be actively and routinely scrutinised as a piece of legislation. Quite the opposite in fact.

Native Title undoubtedly has its benefits and it should always have a place in the land management landscape of Australia. But at the same time let’s not view Native Title with the rose-coloured glasses that so many of the Indigenous Affairs bourgeoisie do. Just because it is 'Native Title', doesn’t mean it shouldn’t be actively and routinely scrutinised as a piece of legislation. Quite the opposite in fact.


Is Native Title being used as 'feel-good' politics?

The concerns around Native Title from an Indigenous perspective are falling on deaf ears of the Aboriginal elite and the Minister for Indigenous Affairs. To so many in politics Native Title is a God-send and a way to place grassroots angst from the Indigenous community into the “too-hard” basket. Native Title is feel-good and gives an air of productivity and progress as political pseudo-outcomes. After all, the media will always laud a land hand-back, whereas very rarely do they scrutinise the processes and show you the faces of the men and women who were ostracised by their own community merely due to differences of personality between them and the governing figures of their respective Land Councils.

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Hardly ever it is highlighted in the press that the terms of many a hand-back —where so much of the time the land is handed back with restrictive tenures— can often be at odds with a number of Traditional Owner proponents, those who may have been hoping for it to give them opportunity to run cattle, grow crops and utilise their land like their ancestors did, but in modern ways.

The insistence that Native Title should amount to a kind of tenure, such as a “National Park” is —quite frankly— racist. It presumes that black people in Australia are incapable of doing anything but being half naked, looking at the trees, the stars and corroborating. This mentality, largely pushed by white do-gooders, really does stem from the romantic notions of colonial era “noble savages”. In fact, our ancestors were keen navigators of landscapes and the weather and did use the land as much as they lived on and respected it. To assume in modern times and albeit, yes, with different industries and land management practices, that Indigenous people today shouldn’t want to or can’t have an economically fruitful relationship with their land is a provincial attitude of the worst possible variety.

To assume in modern times that Indigenous people today shouldn’t want to or can’t have an economically fruitful relationship with their land is a provincial attitude of the worst possible variety.

At times, I have seen the responsibilities of some tribal leaders being shirked for the sake of individual gain, unwittingly ushering in a warring contrast between the environmentally sustainable use of land and the locking-up-and-throwing-away-the-key of regions such as Cape York.

In the worst cases of Native Title being misused as leverage than as opportunity, we see the concept of coexistence as being superseded by the notion of ‘landlording’. Thus making ILUA negotiations and terms so unfair and extreme that it financially cripples current landholders and wards off potential co-investment. When the real purpose of ILUAs is to devise ways of mutual environmental and economic benefit, it rather does seem akin to cutting off one’s own nose to spite one’s face.


Now's the time to have confronting conversations

When such concerns and arising complaints relating to due process and fairness are taken by Traditional Owners to the Native Title Tribunal or Minister for Indigenous Affairs, they are often told to go back to their Native Title Representative Body. For the most part if they could do this and be listened to they wouldn’t need to go higher to begin with.

This becomes a cycle of inaction where the genuine Native Title interests of the everyday blackfella become stagnant in the inaneness of bureaucracy. It is in this regard that Native Title simply cannot remain the same. Things need to be reviewed in order to change the way Native Title processes in; corporate majority interests as well as minority interests. More must be done to ensure rulings do truly empower economic outcomes for claimants. However, for now what needs urgent attention is how complaints and concerns are heard and how Native Title Representative Bodies/Land Councils are policed.

As for the Commonwealth Government, we have more Indigenous representation than ever before. Where are the brave ones, brave enough to talk about this issue? This is an issue which bears very real and everyday consequences for all Indigenous people. Yet sadly, it isn’t an issue which will get one splashed across the national press and carry easy praise for our Indigenous politicians. When will these people use their positions of power to address the flaws of Native Title and do something to stem the subsequent one-directional flow of wealth distribution and economic opportunity, which at present is away from Indigenous communities?

For so long now the politics of guilt has been used to shroud a lot of skullduggery in Indigenous affairs. Though, by asking questions and standing up against how the Native Title Act you won’t be dismantling Eddie Mabo’s, Rev. David Passi’s or James Rice’s legacy, you’ll be honouring it.


Jack Wilkie-Jans is an Aboriginal affairs advocate from the Waanyi, Teppathiggi and Tjungundji tribes of North Queensland.

Landmark documentary, Wik Vs Queensland airs Sunday, 8 July at 8.30 on NITV (Ch.34) and will be available On Demand after broadcast. Join the discussion #WikVsQueensland #NAIDOC2018