ABORIGINAL AFFAIRS: by Richard EganNews Weekly
Mabo decision - ten years of frustration
, July 13, 2002
On June 3, 1992, the High Court of Australia declared that "the common law of this country recognises a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands."
This finding by the High Court was given statutory effect when the Native Title Act 1993
commenced operation on 1 January 1994. This Act was significantly amended in September 1998.
Both the High Court's original Mabo
decision and the Native Title Act 1993
as amended left many key questions about the nature of native title and its relationship to other forms of interest in land unanswered. Some of the questions have been resolved by litigation while others are still awaiting clarification.
In December 1996 in the Wik
case, the High Court determined that the grant of pastoral lease does not of itself extinguish native title. Rather particular elements of native title (e.g., the right to hunt; the right to traverse the land) may be able to coincide with the rights conferred on the grantee of the pastoral lease.
The High Court is yet to deliver its judgement in the case of Ward v Western Australia
which it heard in March 2001.
On 11 May 2000 the Full Court recognised only part of the native title claim advanced by the Miriuwong-Gajerrong people in the Kununurra-Ord River region. Applying Wik
and the amended Native Title Act 1993 the Court found that enclosed pastoral leases, the issuing of mining leases and the resumption of land for the Ord River Project all extinguished native title in the land affected. The similar New South Wales case of Anderson v Wilson & Or,
heard by the High Court in September 2001 is also awaiting judgement.
It does at least seem clear that freehold extinguishes native title, as the High Court decided in September 1998 in the case of Fejo v Northern Territory.
This case involved a claim by the Larrakia people to land once held as freehold near Darwin. This has not stopped Geoff Clark of ATSIC calling on Aboriginal groups to "lay claim to the Southern cities". There are two competing claims over the entire Perth metropolitan area.
On 30 May 2002 in the case of Commonwealth v Yarmirr
the High Court denied the existence of native title over seas in the Northern Territory. It seems that English and Australian legal history of national sovereignty over the surrounding seas means that the common law - on which the recognition of native title depends - has never applied in the same way to the seas as to the land.
The previous week the High Court had heard the appeal from the Yorta Yorta people in their claim for recognition of native title over 2,000 square kilometres in northern Victoria and southern New South Wales. The Full Court had previously upheld Justice Olney's 1998 judgement that "the tide of history" had washed away any real acknowledgement by the Yorta Yorta people of their traditional laws and any observance of their traditional customs.
In the ten years since Mabo,
a mere 30 determinations that native title continues to exist have been made. Of these, 14 are in the Torres Strait; four in Queensland; two in new South Wales; three in the Northern Territory (plus one overlapping with WA) and seven in Western Australia.
In formalising the negotiated settlement recognising the native title claim of the Spinifex people to 54,315 square kilometres in the central desert region of Western Australia, a Justice of the Federal Court expressed his excitement at "the possibility that Spinifex stories related to the rise of the waters across the edge of the Nullarbor at the end of the last ice age".
There are a further 589 active native title applications pending of which about half are currently in mediation. All of these applicants have "the right to negotiate" any proposed new development or use of the claimed land before any final determination of native title is made.
Additionally claimants may object whenever the State invokes the "expedited procedure" provisions when granting a mining exploration permit on land where native title may exist. The "expedited procedure" provisions were introduced in the 1998 amendments to fast-track mining exploration and other land use activities that have minimal impact on native title. There have been a total of 587 objections to "expedited procedures" - 479 in Western Australia and 108 in the Northern Territory.
It is now generally conceded, even by the most enthusiastic supporters of native title, that the $100 million expended by the Commonwealth on native title, including about $50 million channelled through ATSIC to establish and fund Native Title Representative Bodies required under the 1998 amendments, has failed to deliver any real improvement in the economic well-being of the Aboriginal people.
Some, like Geoff Clark, believe that further concessions to Aboriginal claims through a treaty recognising Aboriginal sovereignty is the way ahead. Others, like Noel Pearson, have more realistically emphasised the pressing need to deal with the two major problems adversely affecting Aboriginal well-being - exclusion from the real economy through entrenched welfare dependence and the epidemic of substance abuse.