Native Title 20 Years on: Time for Reform

By Bryan Keon-Cohen
© Screen Australia

This article is part of our June theme, which focuses on Indigenous People and their human rights. Read our Editorial for more on this theme.

When the High Court delivered its judgment in Mabo (No 2) on 3 June 1992, twenty years ago today, I appeared in Canberra for the two remaining plaintiffs, Dave Passi and James Rice. Of the five original plaintiffs who commenced the proceedings in 1982, three had died – Eddie Mabo, Celuia Mapo Salee, and Sam Passi. At various points over the decade, the entire action had almost died with them. These crises included Queensland enacting legislation to kill-off the case – legislation declared racially discriminatory and unconstitutional by the narrowest margin (4/3) in the High Court in 1988; two plaintiffs discontinuing then returning to the case; a hotly contested trial where the evidence of Murray Island witnesses, especially that of Eddie Mabo, was vigorously cross-examined; fragile findings of fact by the trial judge which attracted an argument from Queensland before the High Court that the case could not proceed; numerous legal-aid financial crises rescued repeatedly only by Ron Castan’s legendary generosity; and illness suffered during the trial by the presiding Judge, Justice Martin Moynihan, and by me. These propositions, and others, are further explored in my book Mabo in the Courts: Islander Tradition to Native Title: A Memoir.

After all this effort, the High Court in Mabo (No 2) introduced the new principle that the common law of Australia, in appropriate circumstances, recognised as legally enforceable rights the traditional rights and interests of Indigenous people to their country. After the Court adjourned, I returned to the sixth floor of the building and rang Murray Island on the community’s only available phone – a public phone booth located outside the Council Chambers – to break the news. A lady answered, screamed with delight, and headed off down the beach-side road yelling “We won! We won!” leaving the receiver – and me – dangling in the tropical breezes. I’m told the Murray Islanders partied long and hard that night.

Research Trip To Mer, 1989

Bryan Keon-Cohen, Eddie Mabo and Greg McIntyre Research Trip to Mer (1989) © Bryan Keon-Cohen

That was 3 June 1992. Twenty years on, where are we at? What is the state of play concerning native title processes across the nation? What, if anything, has the past 20 years revealed about the ability of Australia’s social, political and legal systems to accommodate change, especially the notion that our Indigenous citizens enjoy traditional property rights, not by the largesse of governments and parliaments, but by the more profound nature of common law?

The short answer is: a very mixed bag. There have been significant gains, but many losses along the way. On the positive side, a national legislative scheme – primarily the Native Title Act 1993 (Cth) (“NTA”) – commenced operation in January 1994 after sometimes vitriolic community debate.  The NTA basically seeks to recognise and protect native title; provide an efficient and just system whereby communities may claim title through the Federal Court; and provide “rights to negotiate” to native title claimants and owners entitling them to discuss and negotiate terms and conditions whereby local governments, miners, assorted developers, sporting clubs, and commercial fishermen may enter claimed land and pursue their various activities.

However, in 1998 that legislation – introduced into parliament by the then Prime Minister, Paul Keating – was significantly amended, in ways adverse to Indigenous claimants. In that year, the Howard government, following the High Court’s Wik decision, introduced amendments known as the “Ten Point Plan”. The NTA has been amended, in minor ways, since then; Victoria has brokered an entirely new settlement scheme by-passing the NTA altogether; and more amendments are proposed. These are discussed below.

Even when a claim succeeds, the lengthy drawn out process means some or many of the claiming elders have passed away – like Eddie Mabo – prior to seeing final success.

During these 20 years, still on the positive side, much activity in the native title jurisdiction has occurred. As at 30 June 2011, 443 claims for a determination of native title have been filed under the NTA and were continuing, with 154 resolved. Of these, 119 succeeded, in whole or in part, while the remainder failed. Of the 154 completed claims, 105 were determined by consent, i.e. after successful negotiations, thus avoiding a contested trial. In addition, eight claims for compensation were filed. Here, communities claim that native title originally enjoyed by their ancestors to their traditional country was extinguished or impaired by acts of the crown – e.g. granting out a fee simple title (that is, full ownership, which completely extinguishes native title) – over that relevant area. The NTA provides a complex scheme that, theoretically, allows for compensation payments to traditional owners for such extinguishment. To 30 June 2011, eight compensation claims had been filed, but as of May 2012, none have succeeded. An example of one such failure and the most substantial judicial discussion to date of this complex area is Jango v Northern Territory.

Perhaps the most successful aspect of the scheme is the NTA’s focus on agreement making as an alternative to litigation as a means of processing native title claims and accessing and using land by third parties. As to claims, amendments to the NTA in 2009 require the Federal Court to refer all claims to mediation, conducted by a major institution in this jurisdiction, the National Native Title Tribunal. This Tribunal, amongst many administrative roles, conducts such mediations on behalf of the Court and reports back to it on progress. These mediations can last several years, be exhausting, and cause significant disputes both within the claimant community, and between it and its traditional neighbours. These can include issues concerning the precise location of boundaries (a level of precision demanded, not by traditional owners, but by respondents); who should claim what country; and who enjoys what traditional rights and interests in what areas.

Another realm of agreement making where much has been achieved across the nation lies in the “future act regime” and the abovementioned “rights to negotiate.” Under the NTA, once a claim is filed with the Court, and an onerous “registration test” is passed and applied by the Tribunal, the claimant group is accorded “rights to negotiate” about the future use of the claimed land. Thus, to 30 June 2011, over 500 such agreements – called Indigenous Land Use Agreements or ILUAs – have been finalised and registered with the Tribunal. These cover about 1.2 million km2, or 16% of the continent.

Such mediated “consent” determinations about the existence of native title (often accompanied by side-agreements concerning a host of non-native title matters) and signing of ILUAs, with negotiated benefits flowing to the relevant community can be seen as a win-win in an otherwise fraught area. For example, this can result in better relationships promoting co-habitation on the land and avoidance of costly, protracted, and exhausting litigation.

A lady answered, screamed with delight, and headed off down the beach-side road yelling “We won! We won!” leaving the receiver – and me – dangling in the tropical breezes. I’m told the Murray Islanders partied long and hard that night.

Bryan Keon-Cohen with Mabo Case plaintiffs, 1989

L-R: David Passi, Edward Koiki Mabo, Bonita Mabo, Bryan Keon-Cohen, James Rice, Eddie Mabo Jr. and Henry Kobere, Supreme Court of Queensland (June 1989) © Mabo Family Collection

But amongst all these achievements is a serious down side. Almost without exception all stakeholders – governments, third-party users, judges of the High Court and Federal Court, and most importantly, Indigenous applicants – are, for various reasons, critical, disappointed, and frustrated with the legislative scheme and their experience under it. All of these players, for some years, have urged the federal government to amend the NTA to overcome numerous log-jams in the system. So far, save for tinkering around the edges, no government since the Howard amendments of 1998 has done so. As is well known, those amendments and their accompanying “Ten Point Plan” promised, and achieved, “Bucket-loads of Extinguishment” in the infamous words of the then Deputy Prime Minister, Tim Fisher. That same politician, in a burst of gross irresponsibility, proceeded to insult the High Court judges who delivered the Wik decision (holding that in Queensland, native title could co-exist with pastoral leases) a “bunch of pissants.” Fisher was subsequently forced to apologise to the Chief Justice. In its 2010 Native Title Report, the Australian Human Rights Commission complained:

“The Australian government has introduced some welcome reforms to the native title system in recent years … However, [it] has failed to address the most significant obstacles … to the full realisation of [Indigenous] rights. These … include the onerous burden of proving native title; the injustices of extinguishment, and other impediments to negotiating just and equitable outcomes.”

Thus, since 1998, the NTA’s objectives – to recognise and protect native title and to provide an efficient and fair system of processing claims – have been progressively abandoned and distorted into a system notable mainly for its ability to frustrate, rather than facilitate, claimants. How has this national failure come about?

Several factors are at play. First, governments of all colours and persuasions, at state and federal levels, despite their high-sounding rhetoric, have continued to oppose native title claims, contesting them at every point. Technical objections, requests for more and more “connection” evidence as a pre-requisite to entering mediation, refusal to accept traditional evidence save after vigorous cross-examination, are all proper tactics by lawyers in litigation. But in the case of governments, especially the Commonwealth, these methods are usually violently inconsistent with their clients’ – i.e. the responsible Ministers – publicly stated policies. These cynical practices are exacerbated tenfold by various bureaucracies also apparently deaf to political rhetoric doubtless devised by themselves. These practices have contributed significantly to the current quagmire, where the whole system has degenerated into complexity and grid-lock. Claims typically last 5 – 10 years; many claimant groups feel yet again oppressed by colonisers, their hopes dashed; many claims have been denied for technical legal reasons – including the claim of the community upon whose land Uluru stands; and even when a claim succeeds, the lengthy drawn out process means some or many of the claiming elders have passed away – like Eddie Mabo – prior to seeing final success. All of this makes a mockery of the stated objectives of the NTA – to facilitate, not frustrate, the lawful recognition of native title for Indigenous owners. The current federal Labor Government has shown little interest in rectifying this continuing scandal.

Almost without exception all stakeholders … are, for various reasons, critical, disappointed, and frustrated with the legislative scheme and their experience under it.

Second, in a series of decisions, the High Court has interpreted key provisions of the NTA in a manner never contemplated by the parliament, placing additional significant evidentiary and legal obstacles in the path of claimants. Thus, the evidential burden upon claimants – the onus of proof they must discharge in order to satisfy the tests set out in the NTA’s section 223 – is very high. Further, in a major decision – Yorta Yorta – the Court introduced a notion that the claimants’ ancestral community that enjoyed traditional connection to the claimed land at the arrival of British settlement (i.e. 1788 on the east coast) must have been a “normative society” governed by “normative rules” of custom and tradition, as must the current claimant community itself. Further, the current claimant community is required to demonstrate “continuing connection”, founded on its customs and traditions, to the claimed land, being a connection that has not been “substantially interrupted” since settlement. The result is that in closely settled regions – e.g. the eastern seaboard – where dispossession and cultural destruction since 1788 has been greatest, those very same communities have suffered most and have the least chance of succeeding in “proving” their native title to the satisfaction of the courts or governments. This remains a glaring problem productive of much despair and injustice.

Third, the Howard government Wik amendments of 1998 damaged the interests of claimants and benefited those who oppose the very notion of native title – and there remain many still lurking, alive and vocal, in the Australian community-trash-can. An example is the continuing anti-land rights campaign conducted by the magazine Quadrant. These amendments (amongst other reforms), coupled with state complimentary legislation, “validated” additional extinguishment of native title by virtue of tenures issued by governments. The amendments also 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” in the first place. None of this has been wound back by subsequent governments. All of it was unnecessary, fueled by exaggerated fears of “uncertainty”, and was contrary to the spirit of the original NTA.

In recent years, many players have called for substantial reforms, including the Australian Human Rights Commission, Aboriginal leaders, former Prime Minister Paul Keating, the current Chief Justice of the High Court, Robert French, and the Greens. Perhaps the most important suggestion is the Chief Justice’s call to, in effect, reverse the onus of proof now required by the NTA and thus imposed by the Federal Court. Under these proposals, essentially, a rebuttable presumption that native title to the claimed area had continued to exist since 1788 would apply. To rebut that presumption, respondents (e.g. governments) would bear the onus of proving, by evidence, significant disruption to that continuity.

Governments (and those that elect them), need not worry about such reforms: they are skilled and very experienced at discharging this onus. Land Departments hold all land-tenure information recording tens of thousands of extinguishing grants made by the Crown to colonisers since 1788 (e.g. a commercial lease); governments have successfully amended the NTA to enable reliance on such grants to achieve extinguishment; and, as the last 20 years amply demonstrates, they happily use this material with devastating effect for claimants.

Since 1998, the Native Title Act’s objectives – to recognise and protect native title and to provide an efficient and fair system of processing claims – have been progressively abandoned and distorted into a system notable mainly for its ability to frustrate, rather than facilitate, claimants.

To their credit, in 2011 the Greens introduced a Bill into the Senate proposing such reforms, and others: e.g. 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. On 12 May 2011, the Bill was referred to the Senate Legal and Constitutional Affairs Committee. It reported in November 2011 recommending, for a variety of reasons largely  related to concerns about substantial “architectural” changes to the NTA with inadequate compensation, that “it was not persuaded that the Bill would achieve its stated objectives,” (para 3.82) and that the Senate “not pass the Bill” (para 3.92.) Back to square one.

Such amendments, if introduced, would align the Australian scheme with that now operating in New Zealand. There, the relevant Maori community’s land rights, following the Treaty of Waitangi (1840), are assumed. The only question for the Waitangi Tribunal is: what historical acts of the Crown have extinguished or impaired that title, and how much compensation should be paid to Maori traditional owners? Australia clearly has much to learn from its cousins across the ditch.

Dr Bryan Keon-Cohen AM QC is a member of the Victorian Bar. He appeared as junior counsel in Mabo (No 1) & (No 2) from 1982-92. In 2011 his two-volume Mabo in the Courts: Islander Tradition to Native Title: A Memoir (ASP) was published. A second edition is being prepared with new publishers and order forms may be obtained from the author at: bkcchambers@optusnet.com.au


Edward Koiki Mabo

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