Native title issues & problems

Native title legislation is not without issues. There are several problems which challenge native title parties and those involved in finding a solution.

The Native Title Act was originally handed down so that Aboriginal people could negotiate and mediate to resolve recognition of Indigenous peoples' ongoing connection with their land.

But as more and more native title cases take many years, sometimes decades, to be resolved in courts rather than by negotiation, critics of the Act ask the Australian government to review and amend it.

Native title is at the bottom of the hierarchy of Australian property rights. —Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner [1]

Until we give back to the black man just a bit of land that was his and give it back without provisos, without strings to snatch it back, without anything but complete generosity of spirit in concession for the evil we have done him - until we do that, we shall remain what we have always been so far: a community of thieves. —Xavier Herbert author of Poor Fellow My Country (1970)

Proving ongoing connection

Under the Native Title Act Aboriginal people have to prove their 'ongoing' connection to the land they want to claim native title for. This ongoing connection is often difficult to prove, especially where there has been widespread urbanisation or agricultural development, both of which extinguish native title. Indigenous wars with the white invaders, forced removal from their traditional lands (Stolen Generations) and many massacres of Aboriginal people exacerbate claims further.

During World War II Aboriginal people lost their ongoing connection around Darwin because they were evacuated from the Japanese bombing. "Judges haven't been able to take in account any mitigating circumstances, and that break is enough to throw the case out," says Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner [2].

Evidence used to prove Aboriginal people's connection to their land can sometimes date back over one hundred years, as exemplified in the Yorta Yorta people's native title case which used the 1881 petition of the Maloga residents to the Victorian government [3].

However, cases exist where courts have denied recognising native title while at the same time acknowledging that the people before the court are the same people that owned that land at the time of colonisation [4].

As a consequence of extinguished native title the Indigenous Land Corporation was established to purchase land for groups who would not be able to prove native title.

During 2009 Tom Calma and Justice Robert French proposed to reverse the burden of proof in the native title claim system such that all claimants were presumed to have a "continuous existence and vitality since sovereignty" [2].

Numerous native title groups

For native title claims, parties can be numerous and diverse and their relationships complex. The Thalanyji people's claim in Western Australia involved more than 35 parties [5], the Gunditjmara people's case in Victoria involved hundreds of parties which were divided into 27 groups.

Native title groups can include local, state and Commonwealth governments as well as representatives from the mining, pastoral, pearling, fishing, bee-keeping, telecommunications and many other industries.

The fact that these parties usually don't know, or interact with, each other complicates the mediation process. Parties might not have been in dispute with each other, but the native title claim brings them into a potential conflict.

If more than one Aboriginal group are claiming native title disagreements between Aboriginal groups can delay or even derail native title claims. One group might decide to lodge their own claim or disagree with the other group's decision, and claims might have to go back to the drawing board, taking many more years to be resolved. Splits might also cause disagreements between families who have relatives on both sides [6].

Lengthy process

Even if there is just one party making a claim and everyone acknowledges that they are the right people it is still difficult to settle claims and 'straightforward' claims can take a decade or more to reach an outcome [7].

Since both state and federal governments are involved in the native title process they wait for each other and exchange blame [8]. On average it takes six years to finalise a contested native title claim [4].

"One of the main reasons resolutions are delayed is the time it takes to prepare and assess the 'connection' material needed to show claimants' links to their traditional land or waters," says National Native Title Tribunal President Graeme Neate [9].

Compensation

Many Aboriginal people live on land rich in resources which will bring wealth for Australia, but delivers little for its Indigenous peoples.

A common misconception is that Aboriginal people receive millions of dollars "for nothing" just because mining companies set up camp on their land.

Compensation is what the government owes Aboriginal people when it acquires an area of their traditional country, in a similar way as any private homeowner would be compensated if their property was compulsorily acquired for, say, a main road development [11].

Sometimes governments abrogate their responsibility to deliver basic services including health, housing and education in lieu of compensation payments which is wrong, says Indigenous Professor Marcia Langton [12].

"Compensation provisions have never been used successfully," says Aboriginal and Torres Strait Islander Social Justice Commissioner Tom Calma [1]. The problem is that native title can easily be extinguished, it is impossible to 'revive' extinguished title, and there's a lack of either a right of veto or a statutory entitlement to any royalties from mining [13].

Private payments negotiated with mining companies allow these access to traditional lands.

Some mining companies believe that the Native Title Act aims to benefit all Aboriginal people, but this is not the case. It's only the traditional owners of that particular land who are entitled to compensation.

Mining companies are making millions of dollars profit each year operating on Aboriginal land. Between 1988 and 2008 it is estimated that the minerals industry has contributed some $500 billion into the Australian economy [14].

Companies are not required to pay a minimum return from their mining profits to Aboriginal people, and some mining companies pay as little as 0.25% of their gross revenue to traditional Aboriginal owners [10].

There has not been one successful compensation claim. —Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner [15]

Financial issues

No matter if Aboriginal groups received compensation or private payments, those payments might be a challenge to administer.

An Aboriginal council who received compensation payments has been reported to have "lost" a sum of more than A$500,000, bringing it to the edge of receivership [17]. Some of these monies were spent on inner-council battles over council membership as not everyone is admitted to the council and must prove that they are of that particular tribe's descent.

Native title helps the white man

Les Malezer, Chairperson of the Foundation for Aboriginal and Islander Research Action (FAIRA) in Brisbane, Queensland, criticises the native title system for its failure to deliver for Indigenous people [16].

"If Koiki Mabo were alive today he would be an angry man," says Mr Malezer. "The rights he won in the High Court have been eroded away by government, courts and socio-economic pressure."

"The current system has not achieved good outcomes in land rights. The native title debates have been so constrained that we have been left holding a process which does not work."

"It is a process that has been proven to be racially discriminatory, removed from the principles of land rights which has totally replaced the land rights agenda of Aboriginal and Torres Strait Islander peoples."

The current legal arrangements in native title have the effect of obscuring the agents of dispossession and blaming the victims.—Brian Wyatt, chair of the National Native Title Council [8]

Out of respect for Aboriginal culture I use Indigenous sources as much as possible.
[1] 'Mixed results on native title', Koori Mail 442, p.10 [2] 'Govt urged to amend native title legislation', Koori Mail 450 p.10 [3] 'First Australians', Miegunyah Press, 2008, p.XXIX [4] 'Now might be the right moment for native title', Koori Mail 442 p.22 [5] 'Bringing parties together', Koori Mail 437 p.22 [6] 'Dispute a threat to Kimberley gas hub', Koori Mail 474 p.5 [7] 'Nyangumarta get their country back', Koori Mail 453 p.6 [8] 'The bitter taste of native title', NIT 10/7/2008 p.28 [9] 'Tribunal backs change', Koori Mail 447 p.10 [10] www.nntt.gov.au, visited 26/6/2010 [11] 'Native Title Council leader rejects 'warlords' claims', Koori Mail 473 p.22 [12] 'Warning over entitlements', Koori Mail 478 p.13 [13] 'Private Property', Sarah Burnside, www.newmatilda.com (accessed 1/8/2009) [14] 'Benefits on the agenda', Koori Mail 441 p.8 [15] 'A few home truths, after Mabo', SMH 6/6/2009 [16] '650 delegates pack out MCG', Koori Mail 453 p.12 [17] 'Fortune in native title cash lost, group says', SMH 5/6/2010