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Native title reform could go closer to fulfilling Mabo's legacy

Author: Mick Gooda is the Aboriginal and Torres Strait Islander Social Justice Commissioner.

Publication: Sydney Morning Herald, Page 9 (Mon 4 Jun 2012)

I was working in the Torres Strait in the late 1980s and I remember the buzz that went around Thursday Island when Koiki (Eddie Mabo) was back in town.

I was also on Thursday Island when a famous Queensland boat, the Melbidir, took those involved in the final hearings of the Mabo case around the Straits and finally to Murray Island. When it returned to Thursday Island, I remember my friend Lloydy Maza, a Murray Island man, entertaining lawyers, court reporters and boat crew, regaling them about the part they were playing in what would be one of the most important decisions made in the history of this country.

There is no doubt about it - the Mabo decision and the recognition that terra nullius was a myth was a defining moment for Aboriginal and Torres Strait Islander people.

It was also a moment that divided the Australian community.

It is no secret that the mining industry and some state governments were particularly strident in their opposition, fuelled in no small part by headlines peddling ill-founded fears that the humble backyard would soon be swallowed up by Aboriginal and Torres Strait land claims.

But Eddie Mabo's victory represented so much more than an argument about land rights.

As Professor Mick Dodson, the inaugural Social Justice Commissioner, observed in 1994, the "recognition of native title was more than a recognition of indigenous property interests, it is also about the recognition of our human rights".

Native title was - and is - a promise to recognise Aboriginal and Torres Strait Islander people's traditional connection to, and rights and interests in, their lands, territories and resources.

Twenty years on from the Mabo decision, we owe it to ourselves to ask what this promise has delivered for Aboriginal and Torres Strait Islander peoples?

The Native Title Act, as it was drafted in 1993, tried to balance the realities of the past with a fair way to deal with land in the future, based on contemporary notions of justice.

But one of the fundamental flaws of the native title system as we know it is that the concept of native title was based on the unfair principle that the Crown had the power to extinguish traditional indigenous ownership of land.

Although the government had the chance to redress some of the failings of the Native Title Act following the High Court's Wik decision, which laid the ground rules for co-existence and reconciliation of shared interests in the land, the opposite happened.

What occurred instead was a significant weakening of Aboriginal and Torres Strait Islander people's position and amendments which ensured that the Native Title Act could override one of Australia's most important laws designed to protect human rights, the Racial Discrimination Act.

The process of recognising native title itself has also been frustrating from the start for Aboriginal and Torres Strait Islander peoples. While on the one hand, it brings hope and expectation of the return of country, on the other hand it can also be a process fraught with difficulties that opens up tensions and wounds around connections to country, family histories and community relationships.

These instances of "lateral violence" fragment our communities as we navigate the native title system and sadly diminish the unique opportunity native title can and should deliver to overcome disadvantage.

Despite all this, I am optimistic that the original promise of the Mabo decision can still be realised.
In February, Senator Rachel Siewert introduced into Parliament the Native Title Amendment (Reform) Bill. The bill is based in part on the recommendations of many stakeholders over the years, including my predecessor, Dr Tom Calma.

But it has also been introduced within the context of Australian government support for the United Nations Declaration on the Rights of Indigenous Peoples, which provides that states are to establish and implement "a fair, independent, impartial, open and transparent process ... to recognise and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources".

It's time we addressed the most significant problems faced by Aboriginal and Torres Strait Islander people in their efforts to realise their rights to lands, territories and resources.

Senator Siewert's reform bill addresses the onerous burden of proving native title and goes some way towards addressing the injustices of extinguishment. However, we need to go much further still to ensure that the Native Title Act is consistent with the declaration in upholding the human rights of Aboriginal and Torres Strait Islander people.

Many of us who are familiar with the intricacies of the native title system have been calling for years for the onus of proving native title to be reversed. This would mean that native title claimants would be presumed to have a continuous connection to their traditional country unless there is evidence that this connection has been significantly disrupted.

Currently, native title claimants have to provide all the information that's required to demonstrate their continuous connection to country.

As these reforms sit before the federal Parliament, I find myself wondering what Eddie Mabo would think now?

I'd like to think he'd still hold out hope that the promise Mabo represented really will be fulfilled.