Act closed wounds but not the gap (2009)

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Act closed wounds but not the gap

Author: By Tom Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner.

Publication: Sydney Morning Herald, Page 11 (07 January 2009)

In 1994, phone numbers had seven digits, we listened to Crowded House, and it was legal to own a semi-automatic rifle. Mother And Son and A Country Practice disappeared from television screens, and The Adventures Of Priscilla, Queen Of The Desert and Muriel's Wedding showed off our magnificent country and sense of humour while touching on tough issues such as marginalisation, sexuality and racism.

At the same time, the then prime minister, Paul Keating, was also facing a difficult subject - introducing into Federal Parliament what would become the Native Title Act. The High Court's Mabo decision, which finally recognised that Australia was not terra nullius when the British arrived, had forced the country to face up to a history of policies that had devastated the indigenous population.

In response to Mabo, after months of negotiations and the longest parliamentary debate in Australia's history, the legislation was finally passed and entered into force on January 1, 1994.

Newspaper headlines either acknowledged the past and the need to make reparation for lost rights, or trumpeted doomsday warnings that suburban backyards were under threat, Hills hoist and all. Some said the new act would scare off investment, cripple rural development and bring economic gloom for the nation.

None of it eventuated. Native title has disproven many of the doubts and fears raised 15 years ago. Rather, there are any number of stories of farmers, mining companies and governments using the system to formalise positive relationships with local indigenous communities. For instance, the Minerals Council of Australia - which represents Australia's exploration, mining and minerals-processing industry - and its vocal support and respect for indigenous Australians' rights and their special connection to land and waters.

The act was limited in which rights it could recognise. It was intended to be supported by a land fund and a social justice package, but the social justice package did not eventuate. Then in 1998 it was significantly amended to limit its operation even further. The Howard government's 10-point plan extinguished "bucketloads" of native title rights, took away significant procedural rights, and made it harder for indigenous people to prove their title.

We now have a system where, for many indigenous people, having their native title recognised is not achievable. Alternative forms of land and social justice are not accessible for many, or are dependent on state or territory policy.

On average it takes more than six years to finalise a contested claim, no compensation claim has ever been successful, and there are cases where the courts have denied recognising native title in the same breath as acknowledging that the peoples before them are the same peoples who owned that land at the time of colonisation.

But 15 years on, things are changing. Australia is a film and Geoffrey Gurrumul Yunupingu is winning ARIAs next to the Presets. The Federal Government promises a new relationship of partnership and respect for indigenous peoples. We have had the Prime Minister's national apology to the stolen generations, and he has committed to closing the gap between indigenous and non-indigenous Australia.

Now might be the moment native title has been waiting for. It is on the agenda for the Council of Australian Governments' Close the Gap meeting in March, and the Attorney-General, Robert McClelland, wants to make native title work better, and ensure all parties are focused on open and flexible negotiations, avoid litigation, and achieve better and enduring results.

But I don't think the system can simply morph into one that provides multiple and broad benefits for indigenous Australia without fundamental changes.

The evidence required to prove native title should be reduced. Only parties with legitimate interests in the land or the outcome should be permitted to be involved in the process. And, finally, native title determinations should allow for broader outcomes, including commercial rights, and ensuring indigenous people can actively participate in climate-change mitigation and adaptation, and water and environmental management in which indigenous people have special knowledge and interest.

We cannot afford to wait another 15 years to get the best out of our native title system. It can, and should, help to close the gap and ensure more government promises are not broken.