Public Forum – The Legacy of the Mabo Case: Indigenous land justice in Australia

By John Alizzi
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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.

On Tuesday, 12 June 2012, the Castan Centre for Human Rights Law hosted a panel of two experts on native title to reflect on the legacy of the Mabo case and “Indigenous land justice in Australia” at Monash University Law Chambers. The forum considered two distinct but complementary approaches to that 20 year legacy – one economic and the other legal.

The first speaker, Dr Bryan Keon-Cohen AM QC, was intimately involved with the Mabo case and the lead-up to it, representing several of the claimants. He continues to practice in native title, and in public law more generally.

Dr Keon-Cohen suggested that the Native Title Act 1993 – legislation passed by the Commonwealth Parliament in order to set out native title law after the concept was recognised in the Mabo case – should not be assumed to provide “optimal justice”. Indeed, it has been 14 years since the last major policy reform in relation to the Act.

In relation to the aims of the legislation, the pillar of social justice that is clearly set out in the Preamble to the Act can be seen to have been somewhat ignored. The Preamble, for example, refers to the “just and proper ascertainment of native title rights” and “compensation on just terms” in the event of “extinguishment” of native title; that is, in a situation where the Crown has granted ownership of land to another, native title is said to have been “extinguished”. However, despite 20 years of case law, it still remains unclear how the constitutional guarantee of the acquisition of property by the Government on “just terms” (section 51(xxxi)) relates to the extinguishment of native title by the Crown.

despite the optimism that surrounds the Mabo case and native title rights, we should not be complacent as to the need for legislative improvements.

Further, some may see the idea of transposing a spiritual connection into a dollar value as insulting. Behind both points lies a concern with the susceptibility of native title to “extinguishment”.

Beyond the substance of native title law, there are also issues of procedure. In particular, Government parties can effectively control the speed of the recognition of land rights by controlling the speed of litigation.

By highlighting these challenges, Dr Keon-Cohen emphasised that despite the optimism that surrounds the Mabo case and native title rights, we should not be complacent as to the need for legislative improvements.

The second speaker, Professor Marcia Langton AM, is the current Chair of Australian Indigenous Studies at the University of Melbourne. Over the past 20 years she has conducted fieldwork in Cape York Peninsula and the Northern Territory, exposing her to the native title system in varied practice.

Professor Langton emphasised the way in which native title has facilitated economic gains for Aboriginal people and Torres Strait Islanders. Specifically, native title has provided a right to negotiate with those who wish to develop traditional lands, which provides for potentially positive economic outcomes in the way of compensation. This has not always been so, and can be regarded as a positive gain derived from the Mabo decision. However, there are potential complications.

As for whether native title law has fulfilled the promise of Mabo, there is ample room for ambivalence – both satisfaction and unease.

While the law suggests negotiations must be in “good faith”, mining companies and governments, for example, sometimes use strategies that appear to be designed to make negotiations fail.

Nonetheless, many cases are positive. Jobs and contracting opportunities are common in the far north. In the Pilbara, for example, around 3000 mining jobs have been created for Aboriginal people, and more than 50 companies are Aboriginal-run. Thus, while Professor Langton emphasised that the right can be “fragile”, it can also be “powerful” – it can be converted into “meaningful” rights.

Overall, the presentations revealed a situation that would have been hard to envisage just after the High Court handed down its decision in Mabo 20 years ago: a legislative framework; the substance of which provides a fragile but meaningful right, subject to some uncertainty and an unfulfilled social justice aim, overdue for reform, but which also provides a feasible right to negotiate that can lead, and has led, to good economic outcomes.

As for whether native title law has fulfilled the promise of Mabo, there is ample room for ambivalence – both satisfaction and unease. Both speakers would agree there is no room for complacency into the next 20 years of Indigenous land justice in Australia if the promise of Mabo is to be further advanced.

For further reflections on the legal legacy of the Mabo case, see Dr Keon-Cohen’s recent article for Right Now here, and his recent interview with Right Now Radio here.

The theme of economic upshots of native title rights is explored in greater detail in a recently released book, edited by Professor Langton, Community Futures, Legal Architecture: Foundations for Indigenous Peoples in the Global Mining Boom.

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  • marcel dimoski

    It needs to be recognised and realised that all lands in Australia should follow a similar system as was agreed upon in the cobbold commission report which was implemented in North Borneo/Sabah Malaysia East since 1962 and was in effect for a long time before that. it protected the native laws and customs in Sabah and also Sarawak when Sabah was merged into malaysia from Britian. Why was the law in Sabah so different and fair there than Australia? Why was there a double standard? As you can see the Sabahans until today have a separate court called a native court and the Malaysian law cannot overrule it unless it involves serious crimes.

    My friend in Sabah did ask the Australian government to come over to look at what sabah law or system have for natives but when the government in Australia changes then they just forget it. I did also send the PM emails and the same thing happen. Sorry due to upcoming elections then please send your concerns to the next incoming government.

    I think the Aborigines of Australia can take out a class action for all the monies and land lost. lets face it every household in Australia got the properties from the government. The Aborigines should be the richest people in Australia as they own all of it and they should be compensated for all the land lost. Ok so its not feasible then give each aborigine $1 million dollars and a fund manager to help them invest the money and a free lot of government land anywhere in the suburbs where the council or government own it and give it to them and build a house for them, This is what is fair. This is the right thing to do.

    Someone should run in politics and have this platform to reform the laws and implement native law and court and resolve it once and for all. the parliment needs to have 33% compulsory natives running it.