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.
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.