Native Title 20 Years On, at Risk of Losing Its Way?
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GONGS, GREMLINS AND GLITCHES Native Title 20 years on, at risk of losing its way?
BRYAN KEON-COHEN
On Australia Day 2013 Bonita Mabo, Eddie Mabo's The NTA, as is well known, suffered a serious glitch in widow, was awarded Officer in the General Division of 1998 (some argue it was effectively gutted) when it was the Order of Australia (AO) for 'distinguished service significantly amended, mainly against the interests of to the indigenous community and to human rights as claimants. Following the High Court's Wik decision, 5 the an advocate' for Indigenous peoples. Like her Howard government introduced amendments based husband's posthumous Australian of the Year award, on its 'ten point plan'. Further minor amendments have been announced exactly 20 years earlier by The Australian legislated since then.6 In addition, Victoria introduced an newspaper, this recognition by a grateful nation was entirely new settlement scheme that in substance by-passes REFERENCES richly deserved. Bonita, now 70, lives near Townsville. the NTA,7 and more amendments were proposed by the 1. Andrew Fraser, 'Bonita's battle as vital as former federal Attorney General, Nicola Roxon, in June Despite her age and failing eyesight, she is still an Eddie's', The Weekend Australian 2012.These are discussed below. (Sydney), 26-7 January 2013, 19. Bonita 'extremely vocal advocate for South Sea Islanders' from Mabo's family was black-birded’ from whom she is descended.1 Sadly, such admirable Still on the positive gong side, the native title islands around Vanuatu to work in jurisdiction has been busy since the NTA became Queensland cane fields. She was born in advocacy remains necessary in many areas, including the Halifax, near Ingham, Queensland. search for Indigenous land justice. operative in 1994.As at 3 June 2012, 475 unresolved 2. Mabo v Queensland (No 2) (1992) 175 claims for a determination of native title under the CLR I. See also, Bryan A Keon-Cohen. Today the nation's native tide regime -triggered by NTA had been filed and 185 had been determined. 2 Mabo in the Courts: Islander Tradition Mabo (No 2), and introduced through the heavily Of these, 141 succeeded in whole or in part to Native Title: A Memoir (ASP, 2011) negotiated Native Title Act 1993 (Cth) ('NTA') plus (out of print and revised edition (covering about 16 per cent of the continent) while forthcoming, A Mabo Memoir: lslan a plethora of state and territory complimentary 44 had failed. Significantly, of the 141 successful Kustom to Native Title (2013), legislation,3 and with its potential further restricted by claims, 70 per cent were determined by consent (the available for order
mediations can last several years, be exhausting, and facilitate, claimants. So, how has this national failure cause significant disputes both within the claimant come about? community, and between it and its traditional Several factors are at play. First, governments of all neighbors. These can concern the precise location of persuasions, at state and federal levels, have in the traditional boundaries (a level of precision demanded main continued to oppose native title claims, contesting not by traditional owners, but by respondents), who them at every point despite their supportive political should claim what country, and who enjoys what rhetoric. Tactics such as technical objections, requests 12 traditional rights and interests in what areas. for more and more 'connection' evidence as a pre Another realm of agreement-making where much requisite to mediation, refusal to accept traditional has been achieved lies in the 'future acts' and 'right to evidence save after vigorous cross-examination, are negotiate' provisions. Under the NTA, once a claim often deployed in commercial litigation. But when such is filed with the Court, and after it passes an onerous tactics are utilised by governments in native title claims, 'Registration test' applied by the Tribunal, the claimant they are usually violently inconsistent with the spirit of group is accorded 'rights to negotiate' concerning the NTA, let alone the responsible Ministers' publicly the future use of the claimed land. Thus, to 30 June stated policies. These cynical practices at the coal- face 2011, over 500 such agreements -called Indigenous (to seasoned observers, merely normal political Land Use Agreements ('ILUAs')-had been finalised hypocrisy), are exacerbated by various bureaucracies and registered with the Tribunal. 13 These too are true in lock-step, who contribute significantly to the current gongs and, especially in mining regions, can be made of quagmire. The whole system has on this view gone ga ga, that is to say, degenerated into complexity and grid lock. 12. Dubbed "lateral violence" by solid gold. Claims typically last five to ten years and many claimant Commissioner Mick Gooda in his Australia Mediated 'consent' determinations about the existence Human Rights Commission. Native Title groups feel yet again oppressed by colonisers, their hopes Report 2011. 74-115 of native title (often accompanied by side-agreements dashed. Many claims have been denied for technical legal 13. These cover about 1.2 million square concerning a host of non-native title matters), and reasons (including, for example, to the community upon km. or 16 per cent of the continent. See 16 the signing of ILUAs, with negotiated benefits flowing whose land Uluru stands and even when a) claim National Native Tide Tribunal. Annual to the relevant community, are often seen as a win- succeeds, the lengthy drawn-out process means some Report 2010-2011, 23·4. win in an otherwise fraught area. Mediated consent (or many) of the community's elders 14. That same politician, in a burst of gross irresponsibility, proceeded to insult the determinations can facilitate better relationships have passed away (like Eddie Mabo) prior to seeing High Court judges who delivered the Wik promoting co-habitation on the land, and avoid costly, final success. All of this makes a mockery of the stated Decision (holding that native tide could protracted, uncertain and exhausting litigation. objectives of the NTA-to facilitate, not frustrate, the co-exist with pastoral leases) referring to them as a "bunch of pissants.' Fischer was lawful recognition of native title for indigenous owners. But among all these achievements-whether they subsequently forced to apologise to the The current federal Labor government has shown little are labelled gongs or mere glitches-is a serious Chief Justice. interest in rectifying this continuing scandal. Perhaps downside. Representatives of all stakeholders 15. Aboriginal and Torres Strait Islander the new federal Attorney-General, Mark Dreyfus Social justice Commissioner, 2010 Native -governments, third-party users, judges of the High QC, might be more pro-active and reformist than his Title Report (Australian Human Rights and Federal Courts, and most importantly, Indigenous Commission. 2010) 13. predecessor. One can only hope so. applicants -are, for various reasons, convinced 16. Jango v Northern Territory (2006) 152 that central features of the scheme have gone ga-ga. Secondly, in several decisions since 1992, the High CLR 150. These critics are disappointed and frustrated with the Court has interpreted key provisions of the NTA in a 17. Yorta Yorto Aboriginal Community v Victoria (2002) 214 CLR 422. legislative scheme and their experience under it. For some manner never contemplated by Parliament, thus years, they have urged the federal government to amend raising significant new evidentiary and legal obstacles in the path of claimants. The evidential burden upon the NTA to overcome numerous log-jams. So far, save for claimants is now very onerous. The onus of proof to tinkering around the edges, no government since the be discharged in order to satisfy the tests set out in Howard amendments of 1998 has done so. As is well NTA s 223 is considerable. For example, in the Yorta known, those amendments and their accompanying 'Ten Point Plan' promised, and achieved, Yorto case, the Court introduced a requirement that the claimants' ancestral community must reach back 'Bucket loads of extinguishment' in the infamous words to the claimed land as at 1788, and must establish of the then Deputy Prime Minister Tim Fischer. 1 In its they have been a 'normative society' governed by 2010 Native Title Report, the Australian Human Rights 'normative rules' of custom and tradition in accord with Commission complained: the current claimant community. 17 In particular, the The Australian government has introduced some welcome current community must demonstrate a 'continuing reforms to the native title system in recent years.... connection', founded on its customs and traditions, However, [it] has failed to address the most significant to the claimed land, being a connection not obstacles ... to the full realization of [Indigenous] rights. 'substantially interrupted' since settlement. Thus, in These ... include the onerous burden of proving native title; closely settled regions (such as the entire eastern the injustices of extinguishment, and other impediments to negotiating just and equitable outcomes. 15 seaboard, where dispossession and cultural destruction since 1 788 has been greatest), today's Thus, since 1998, the NTA's objectives-to recognise surviving communities which have suffered most and protect native tide and to provide an efficient have least chance of succeeding in 'proving' their and fair system of processing claims -have been native title to the satisfaction of the courts. This progressively abandoned and distorted into a system remains a glaring problem productive of much despair notable mainly for its ability to frustrate, rather than and injustice. This truly is ga-ga-land going nowhere, and demands substantial reform. Al tlj Vol 38: I 201 3 3S r ,.. , ,, r
Third are the Howard government's 1998 NTA amendments, mentioned above. These damaged claimants' interests and benefited those opposing the very notion of native title, many of whom still lurk, alive and vocal, in Australia's community-trashcan.18 These 1998 amendments, coupled with state complementary legislation, 'validated' additional extinguishment of native title by reason of tenures issued by governments, watered-down the 'right to negotiate' provisions by allowing states to introduce exemptions, and introduced a tougher 'registration test' being the gateway for claimants to achieve 'rights to negotiate'. None of this has been corrected by subsequent governments. All of it was unnecessary, fuelled by exaggerated fears of 'uncertainty', and was contrary to the spirit of the original NTA. In recent years, many have called for substantial reforms, including the Australian Human Rights Commission, Indigenous leaders, former Prime Minister Paul Keating 18. See, eg, the continuing anti-land-rights who was responsible for the original NTA, the current campaign conducted by the magazine, Chief Justice of the High Court, Robert French, and the Quadrant. Greens. Perhaps the most important suggestion is the 1 9.See the private Senator’s Bill, Indtroduc by Senator Siewert on 21 March Chief Justice's call, in effect, to reverse the onus of proof 2011 l, Native Tide Amendment (Reform) now required by the NTA and imposed by the Federal Bill 2011 (Cth). Court. Under these reform proposals, essentially, a 20.Senate Constitutional and Legal Affairs rebuttable presumption that native title to the claimed Committee. Parliament of Australia, area had continued to exist since 1788 would apply. To Native Title Amendment (Reform) Bill Report (November 2011) [3.82] & [3.92]. rebut that presumption, respondents (for example, respectively. governments) would bear the onus of proving, by 21.Nicola Roxon. 'Echoes of Mabo' evidence, significant disruption to that continuity. (Paper presented at AITSIS Native Tide Conference, Townsville, 6 June 2012). Governments and those who elect them need not worry as 20 years of discharging this onus has left other serial respondents (such as governments and miners) both skilled and very experienced. Land Departments hold the relevant land-tenure information recording tens of thousands of grants made by the Crown to colonisers since 1788. Many of these grants (an example being a commercial lease) are now 'deemed' to extinguish native title by force of provisions of the original NTA and the 1998 amendments. As the last 20 years amply demonstrate, respondents, especially governments, happily use this information -the law allows them to do so-with devastating effect for claimants. To their credit, the Greens introduced a Bill into the Senate in 20 I 1 proposing worthy reforms (such as allowing prior extinguishment of native title rights to be ignored, strengthening the 'good faith' negotiation requirements, and clarifying that native title rights can include commercial rights).19 On 12 May 20 I I , the Bill was referred to the Senate Legal and Constitutional Affairs Committee. It reported in November 20 I I recommending, for a variety of reasons -largely about concerns with substantial 'architectural' changes to the NTA and Inadequate compensation -that 'it was not persuaded that the Bill would achieve its stated objectives' and that the Senate 'not pass the Bill'. 20 Back to square one. In New Zealand, following the Treaty of Waitangi (1840), a Maori community's land rights are assumed.
0 • A hll V(li 1A·I The only questions for the triggering the 'race card' and (doubtless focus-group Waitangi Tribunal are: what polling shows) there are no votes in it. Meanwhile, some historical acts of the Crown gongs continue have extinguished or to be awarded, glitches continue to aggravate, and vast impaired that title? And areas of the country remain ga-ga-land -that is, un- how much compensation claimable, inaccessible or excluded as a source of should be paid to today's compensation to current Indigenous owners due, Maori traditional owners? simply, to government policy and legislation. That regime has not caused Dr BRYAN KEON-COHEN AM QC practices law at New Zealand to disappear the Victorian Bar and was junior counsel in Mabo beneath the Pacific Ocean nor (No implode, economically or I ) & (No 2) 1982- 92; see otherwise. The basis of this