Native Title Recent Events Raise Questions of Effectiveness

Thursday 19 February 2015 @ 10.37 a.m. | Legal Research

Recently, it has been reported that Human Rights Commissioner Tim Wilson speaking at the National Press Club (on 18 February 2015), to mark a year in that role, has indicated that there is cause to ask - whether Indigenous Australians should get more from native title? A report in The Conversation cites Commissioner Wilson as indicating that in his view:

"Aboriginal Australians are being denied the freedom to exercise their property rights under native title, . . . It’s not enough for Aboriginal Australians to simply have property rights – they must also have the freedom to exercise them, . . . ”

Commissioner Wilson's address follows on the recent Federal Court of Australia decision in Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15 (27 January 2015) (the Brisbane Claim Case) which considered a native title claim in relation to "any land or waters of Brisbane and surrounding areas". It also interestingly precedes the soon to be released (in March 2015) Australian Law Reform (ALRC) final report tasked with reviewing the Native Title Act 1993 (Cth) (the Act) commissioned by the former Labor Government in August 2013.

The Issues in the Brisbane Claim Case

The Court looked at whether a normative system of traditional laws and customs existed in the claim area at sovereignty and the extent of society defined by laws then acknowledged and customs then observed. It considered the relevance of lingual divisions. It looked at the tribes and claims within broader society, the content of laws and customs with respect to rights and interests in land and waters and whether the laws were acknowledged and customs observed without substantial interruption since sovereignty. The court also considered whether members of the claimant groups were descended from the original peoples who possessed relevant rights and interests in relation to the land and waters.

The Result in the Brisbane Claim Case

The Federal Court determined that native title had been extinguished over a large tract of the greater Brisbane region and rejected the native title claims made by the two native title claim groups, namely the Yugara/Yagarapul People and the Turrbal People of that claim area. At a  broader level, the Federal Court determined that native title "does not exist over this highly urbanised region".

The key reason for rejection of the two claims was based on a "lack of connection and continuity". The need to establish "a normative system of laws and customs in the context of rights and interests in relation to land and waters stemming from the date of sovereignty" was crucial in the case and ultimately turned out to be why the two claims failed. Members of the two claim groups were not able to prove the required continued and substantially uninterrupted acknowledgment and observance of traditional laws such as would sustain the claimed rights.

Following from the Brisbane Claim Case

The case is reported as being relevant to the resource industry and local government bodies because it provides clarity for such bodies by determining that native title rights do not exist over the claimed Brisbane area, meaning that developments and works in Brisbane and the bordering regions are not required to comply with the processes under the Act, although obligations with respect to cultural heritage legislation still apply.

The Brisbane Case and the Terms of Reference

The ALRC review of the Act was based in 2013 on the fact that the Act had operated for 20 years and was in need of a review.

One of the key terms of references in the ALRC review was:

  • connection requirements relating to the recognition and scope of native title rights and interests, including but not limited to whether there should be:
    • a presumption of continuity of acknowledgement and observance of traditional laws and customs and connection
    • clarification of the meaning of ‘traditional’ to allow for the evolution and adaptation of culture and recognition of ‘native title
    • rights and interests’
    • clarification that ‘native title rights and interests’ can include rights and interests of a commercial nature
    • confirmation that ‘connection with the land and waters’ does not require physical occupation or continued or recent use, and
    • empowerment of courts to disregard substantial interruption or change in continuity of acknowledgement and observance of traditional laws and customs where it is in the interests of justice to do so.

The elements of the above reference are all matters which were relevant to the Brisbane Claim Case and indeed the failure of the claimants in that case illustrates the difficulties of establishing continuity and what the term "traditional" actually means.

Commissioner Wilson's Effectiveness Points

Another relevant ALRC term of reference in its review was for the ALRC to consider:

  • the capacity of native title to support Indigenous economic development and generate sustainable long-term benefits for Indigenous Australians.

A reference which, if Commissioner Wilson's views are correct, requires much effort in the review process to produce better outcomes.

Commissioner Wilson is reported as pointing out that present legal restrictions stop native title land being used, for example, "as equity to raise the capital for entrepreneurial activities". Additionally, he argues that excessive regulations, undermine self-determination and entrenches poverty, pointing out:

“This is neither fair, nor just,  . . . We can’t complain about the cost of welfare programs for Australia’s first citizens when we concurrently deny them the freedom to use the primary asset they own to escape dependency.”

In this respect, the types of reform Commissioner Wilson says are required are reported as:

  • flexible legal instruments so communities can use their title as they see fit, including with different ownership structures;
  • new business models so communities could build economic opportunities; and
  • mechanisms to raise finance for the development of housing and ownership.

Thus, in the light of the recent reports on the progress of "Closing the Gap" process, the fact that Governments of both colour have failed to make the large steps to more equity for Indigenous Australians required, and with the latest Parliamentary Speech rating progress as "poor" - it may be that Commissioner Wilson may have a some ideas that will work in a better, more grass roots way, to produce results for Indigenous Australians that are better than "poor".

In any event there will also be the need to adhere to another point of Commissioner Wilson's, namely that:

“Reform must respect native title’s unique role as a sacred bond between Aboriginal Australians and their homelands, . . .”

An entirely correct observation as it must be understood that for Indigenous Australians, the land has values far beyond its economic exploitation - values that will always be a priority.

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