Date: 
Wednesday 14 January 2009

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Now might be the right moment for native title

Author: By Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner

Publication: Koori Mail, Page 22 (14 Jan 2009)


AUSTRALIA celebrated the 15th anniversary of the start of the Native Title Act on New Year's Day 2009.

Fifteen years ago it was a different world for most Australians. But for Indigenous Australians, not enough has changed when it comes to recognition and protection of our rights to country and culture.

In 1993, the High Court handed down its famous Mabo decision, which finally recognised that Australia was not terra nullius (belonging to no one) when the British arrived.

After 200 years, the Mabo decision finally pulled off the blinkers and forced the country to face up to a history of dispossession, and the reality of policies that had devastated our Indigenous population.

In response to Mabo, after months of negotiations and the longest Parliamentary debate in history, the Native Title Act was finally passed and started on 1 January 1994.

Newspaper headlines at the time either acknowledged the past and the need to make reparation for lost rights, or trumpeted doomsday warnings that native title would threaten suburban backyards – Hills Hoist and all. Some even threatened that the new Act would scare off investment, cripple rural development and bring economic gloom for the nation.

But these threats have never eventuated. In fact, native title has disproven many of the doubts and fears raised 15 years ago.

There have been a number of stories of farmers, mining companies and governments using the native title system to formalise positive relationships with local Indigenous communities.

These relationships have changed markedly over the years, for example the Minerals Council of Australia which represents Australia's exploration, mining and minerals processing industry, now vocally supports Indigenous Australians rights and their special connection to land and waters.

But the Native Title Act was originally limited in what rights it could recognise.

It was intended to be supported by a land fund and a social justice package. The social justice package never eventuated. Then in 1998, the Act was significantly amended to severely limit its operation even further, trampling Indigenous peoples rights in the process.

The end result is that we now have a system where recognition of native title just isn't achievable for many Indigenous Australians. And alternative forms of land justice and social justice just simply aren't accessible for many, or are dependent on State or Territory policy.

Many obstacles must be overcome for the system to work well. For example, on average, it takes more than six years to finalise a contested claim; no compensation claim has ever been successful; and there are cases where the courts have denied recognising native title in the same breath as acknowledging that the peoples before them are the same peoples that owned that land at the time of colonisation more than 200 years ago.

But now, 15 years after the Act started, things have started to change. We have a new Federal Government promising a new relationship of partnership and respect with Indigenous peoples.

We've had the Prime Minister's National Apology to the Stolen Generations and he has commited to closing the gap between Indigenous and non-Indigenous Australia.

Now might just be the moment native title has been waiting for: It is on the agenda for the Close the Gap Council of Australian Governments (COAG) meeting in March, and we have an Attorney- General who is committed to making native title work better and ensuring all parties are focused on open and flexible negotiations, avoiding litigation, and achieving more beneficial and enduring outcomes from those negotiations.

We should use this impetus to seriously improve the native title system.

We can't afford to wait another 15 years to get the best out of our native title system and to have Indigenous peoples' rights recognised.

It can, and should, help to close the gap and ensure more government promises are not broken.