rights in limbo, by Tim Dick - 27th January 2007
The Sydney Morning Herald)
The native title system has caused conflict without
achieving much for Aborigines in NSW, writes Tim Dick.
There were tears on the courthouse steps that day,
10 years ago, when a judge told the Dunghutti people
that a little patch of Crescent Head was theirs. A
little more than 12 hectares of their traditional
country was recognised by Australian law as their
own, and Aborigines across NSW celebrated.
tears have long since stopped, replaced by frustration
that it is taking so long to resolve any of the other
claims made in NSW.
win was the first on mainland Australia, five years
after the High Court told Eddie Mabo's people they
had exclusive possession over their Torres Strait
island, and inspired others to make claims - people
such Des Dyer, secretary of the Darug Tribal Aboriginal
Corporation, which claimed parts of Sydney in 1997.
actually thought, 'Well, everyone else is getting
theirs, ours will be next', but it just seems to be
stagnant," he says.
a decade on, Dyer says he and other Darug claimants
- including the corporation's chairman, Gordon Workman
- are "disheartened" at the progress of
their claim for recognition as traditional owners
of land in western Sydney.
are many others. Nearly 15 years since Mabo excited
part of the nation and worried the rest, it is hard
to find much in the southern states to justify either
of claims languish unresolved in the purgatory of
the native title system. Many more are non-starters,
for almost all of the state is now beyond reach.
is no native title over freehold land, while in a
single decision, the High Court put 40 per cent of
NSW - leasehold land in the west - permanently off-limits.
that with northern Australia, where native title has
legs: 28,300 square kilometres is recognised in Queensland,
and some form of native title covers a quarter of
Western Australia, or 589,000 square kilometres.
the south, Tasmania and the ACT have no native title,
Victoria has about 400 square kilometres and the single
recognised area in NSW covers about 0.000012 per cent
of the state.
imminent Githabul agreement, about patches of Crown
land near the Queensland border, means the NSW count
will soon number two.
after millions of dollars in legal fees, many thousands
of hours' toil, and the hopes of Aboriginal people
being first raised, then dashed, it is fair to ask:
southern traditional owners are not quite Aboriginal
enough for the courts to recognise their native title.
The Queensland Aboriginal leader Noel Pearson said
as much after the High Court rejected the Yorta Yorta
claim over land along the Murray River in 2002. The
claimants failed to prove that they had maintained
a "substantially uninterrupted" connection
to their lands by exercising traditional customs and
practices which originated before 1788, when the Crown
ruling raised the evidentiary bar for all other claims,
which led Pearson to attack the courts' record on
whitefellas do not only get to keep all that they
have accumulated, but the blacks only get a fraction
of what is left over," he said. "[They]
only get to share a co-existing and subservient title
where they are able to surmount the most unreasonable
and unyielding barriers of proof, and indeed, only
where they prove that they meet white Australia's
cultural and legal prejudices about what constitutes
the Australian courts
the Yorta Yorta peoples
were not sufficiently Aboriginal to get one square
metre of what was left over after the whites had taken
all that they wanted."
is not alone in holding this view.
barrister John Basten, QC, spoke on the same theme
shortly before he became a Supreme Court judge.
is also a view that the greater the adoption of modern
technology and life-styles (including education, welfare
and health services), the greater the chance that
a court will find that traditional laws and customs
have been abandoned, and that native title has been
lost," he said.
is the obvious paradox of native title as the deliverance
of justice for the dispossessed: where Aboriginal
dispossession was most extensive, it is least likely
it is most likely to exist in areas ignored by European
when the rights are recognised, they are rarely economically
productive, says the Aboriginal Social Justice Commissioner,
Tom Calma, because they are limited to ancient traditions.
If their rights are not entirely frozen, they are
at least on 200-year-old ice.
right to fish under traditional laws has not translated
into commercial fishing rights; the native title right
to take flora and fauna is not able to be used to
sell bush foods or native wildlife as of right. The
traditional use of minerals has not become a native
title right to exploit minerals such as through mining
enterprises," he says in his Native Title Report.
"Native title rights are limited in law to anachronistic,
domestic, non-commercial rights."
that, Calma argues native title should not be considered
a failure. But in NSW, it is hard to find evidence
to the contrary.
Scott is the acting chief executive of the NSW Aboriginal
Land Council, established in 1983 under state land
rights legislation designed to return vacant Crown
land to Aboriginal ownership.
23 years only about 1 per cent of NSW - more than
80,000 hectares - has been returned, while an invested
pool of land tax revenue, diverted to fund its operations,
has grown to more that $600 million.
questions the worth of native title, saying it delivers
far more certainty for non-indigenous interests than
really an issue of how much money do you spend for
minimal results," he says. "The potential
for native title in the southern states is very, very
poor. If we could've had the cash straight up, I think
the outcomes would have been far greater."
also makes his job more difficult because, to use
land granted under the land rights scheme, native
title must be extinguished. That means it is often
left to the land councils to seek a court determination
that no native title exists.
can cause conflict, Scott says, as traditional owners
for native title purposes may not have membership
of a land council, for which any resident Aborigine
NSW, most people don't live on the land they are traditionally
associated with," Scott says. "There is
a significant population from outside NSW itself,
and many people have moved because of government dislocation,
or just to get work. And native title works against
that kind of structure."
Mundine, the national Labor Party president, is chief
executive of NSW Native Title Services, which represents
seeing a clash between the land councils and traditional
owners in NSW," Mundine says. "In fact,
when I go and sit down with other native title rep
bodies outside of NSW, they find it quite bizarre
that we have this conflict."
NSW has only one determination that native title exists,
it has 23 that it does not exist, most sought as a
result of the land council system.
says legislative reform - "a good clean-up"
- would reduce the conflict, which extends further
than interests in land.
speaks for country? Do the land councils speak for
the protection of cultural heritage or do the traditional
owners?" he asks. "The dilemma for traditional
owners is they don't have the funding system that
the land councils do, the massive amounts of money.
They don't have a structure to operate from, while
the land councils do."
believe conflicts between the systems are more often
symptoms of friction that would exist anyway.
says the land rights scheme is a genuine effort by
the NSW Government to redress dispossession. He believes
there is a place for native title, despite the slow
start. "When everyone looks at Aboriginal affairs,
they always tend to look north," he says, meaning
north Queensland, the Northern Territory, Western
Australia, and the north-west of South Australia.
"These are the areas of the 'true Aboriginals'
and their culture and how they operate. What's happening
with native title [in the south], we're dispelling
two determinations in NSW? He says more are to come
and, he hopes, more quickly, now that the legal revolution
has settled down.
Byron Bay, there'll be a big announcement by the Premier
about that, and also there'll be the final finishing
of Dunghutti," he says of part two of that Crescent
Head victory of a decade ago. "Those announcements
are coming up and there'll be a few flowing closely
further success comes outside the system. Some agreements
are not counted in the statistics because, while sparked
by native title claims, they end without legal recognition.
gives the Eastern Gas Pipeline agreement as an example.
After years of litigation, about $4 million will be
distributed to traditional owners in Gippsland and
southern NSW. It came after native title claims were
lodged, although it did not result in a determination
that it existed.
Neate, president of the National Native Title Tribunal,
points to other agreements, on different terms, in
Byron Bay, Dubbo and Coonabarabran.
the native title claims got people talking and eventually
led to Aboriginal people being given interests in
pockets of land, like a burial ground in Dubbo or
a role in managing a new national park at Cape Byron.
for many groups a successful native title claim will
not win many benefits except access to land.
says that is not the sole objective: "I think
it's been worth it - the self-esteem, the pride, the
recognition of people and how they define themselves.
It has been 100 per cent better than what it previously
those who have much, the significance of a determination
of native title can be elusive without money or exclusive
possession of land. But to many Aboriginal people,
a mere declaration by Australian law that particular
land is part of their traditional country provides
some salve from the long denigration of their culture.
is legislation now before Parliament designed to encourage
speedier negotiation in good faith and agreement.
introducing the changes, the federal Attorney-General,
Philip Ruddock, said the system was "too costly
and time-consuming". (The former Democrats senator
Aden Ridgeway calculated that the cost to the Federal
Government had passed $600 million. That was three
the news broke this month that NSW's second determination
was looming, the shadow attorney-general, Kelvin Thomson,
said Ruddock should "hang his head in shame"
about native title delays.
93 claims are finalised, but there are more than 600
slammed the average six-year delay, and said organisations
representing claimants had never had enough money
to do their job. Ruddock accused him of not being
constructive and blamed, in part, a shortage of the
anthropologists needed to prove native title.
the cause, the delays have real bite for claimants,
considering how much earlier Aborigines die than everyone
else - 17 years earlier, says the latest edition of
the Australian Bureau of Statistics' yearbook.
a named representative dies, the claim must begin
again, although the Government is considering changing
Darugs' claim will pass 10 years in May, and there
is no guarantee of success.
the record in NSW, they may have to rely on the State
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