Eddie Koiki Mabo Lecture

Thank you Russell for your kind words of introduction.

Aunty Clara Ogleby, I begin by acknowledging and paying my respects to the Kuku Yalanji people, Traditional Owners of the place upon which we sit and talk today. I honour your Elders that have come before you, those that are here today and I wait in optimistic anticipation for those Elders who are yet to emerge.

My people are the Gangulu from the Dawson Valley in Central Queensland.

I stand here proud to bring a message from my Elders. First, they ask me to pass on their greetings and their thanks for allowing me on your lands. They then said to tell you they are aware of your continued fight for your culture and your country and salute you for your ongoing struggle.

Can I also acknowledge all you here today who have come together to work out how we can access our land, seas and waters easier and quicker, but who have also come to talk to each other about how we can make better use of our estates to make life a little better for the rest of our mob out there.

I also acknowledge the Minister for Indigenous Affairs, Nigel Scullion who is here today and my colleague Tim Wilson, our Australian Human Rights Commissioner. I also acknowledge Meriam PBC Chair Mr Doug Passi.

I'd also like to thank AIATSIS for the invitation to speak today and in doing that can I congratulate you Russell on receiving your recent Member of the Order of Australia award. Typical of such awards, the citations are generally understated and this is particularly so in your case.

The citation reads:

‘For significant service to the community as a cultural leader and public sector executive in the field of Indigenous affairs.’

Can I be indulgent and add a couple of others. Husband, father, grandfather, mate, advocate, achiever, Principal and mentor.

Please join with me in acknowledging the life long accomplishments of Russell Taylor.

Legacy of Eddie Mabo

I have been honoured in the last six weeks by being asked to deliver both the Eddie Koiki Mabo Lecture here today and the Rob Riley Memorial Lecture on Friday the 8^th of May in Perth.

When I looked over the lives of these two great Australians I was struck by the similarities of their struggles and the qualities they each share. Rob was at the forefront of the fight for land in Western Australia, particularly at Nookanbah and when the WA Government led the resistance to national land rights legislation.

In my tribute to Rob, I mentioned how losing that fight for national land rights lit the fires for what was to become the fight for native title led by Eddie, with Rob being part of the leadership that negotiated the Native Title Act through the national parliament to give legislative effect to the High Court decision championed by Eddie.

They both endured early hard lives that steeled them for the struggles that would eventually come their way. Tenacity, fearlessness, fearsome, tireless are some of the words that come to mind when the names Rob Riley and Eddie Mabo are mentioned.

Another similarity is something that sometimes we do not acknowledge enough. And that is the cost to both men and their families. Birthdays, anniversaries, sports events and special schools days were missed. Family gatherings were foregone. And these were the costs borne by the whole family.

Gail, to your Mum Bonita, to Eddie Junior, Wannee, Bethal, Celuia, Ezra, Mario, Malita, Malcolm, Jessie and to you Gail, can I pay special tribute to for the generosity of you all in giving your husband and Dad to us. Australia owes you a great debt.

So today it is indeed an honour for both my people and myself to be presenting this year's Edward Koiki Mabo Lecture.

The theme of this year’s conference is Leadership, Legacy and Opportunity.

Today I want to talk about how Aboriginal and Torres Strait Islander peoples can be the leaders to grasp new opportunities that will leave a legacy for generations to come.

We all know about the legacy of native title left by Meriam and Murray Islanders Edward Koiki Mabo, David Passi and James Rice. Their hard fought battle against the Queensland government finally consigned the lie of terra nullius to the historical dustbin and recognised the unique rights that we hold as Aboriginal and Torres Strait Islander peoples to our traditional land and waters.

Without this foundation, there would be no opportunity for us to access these rights through this unique form of land tenure. Even though these rights have been watered down over the years, they have enabled us to reach a point where we now own nearly a third of the entire Australian continent and I am told approximately 54% of places like the Northern Territory. But without warriors such as Eddie, David and James, Rob and countless others, we would not be in the position regarding Indigenous land tenure that we are in today.

Despite the fact that the challenge of gaining native title is still a fight that many of us share, there has been a shift in focus now and we have started to see a gradual change in terms of ownership. That nearly a third of our land mass is Indigenous owned is testament to this.^[1] And that shift is the move to the next emerging challenge; how do we maximise these rights to their full potential, now that we have our native title recognized?

I have heard many stories from Aboriginal and Torres Strait Islander communities and Traditional Owners about the many barriers they face in reaching their potential benefits under land rights and native title. These things range from various legal and administrative barriers that are placed on us once a native title determination has been made and includes various tax and regulatory standards placed on Aboriginal and Torres Strait Islander communities in the post determination phase, conflicts between individual and communal property interests and issues arising from the conversion of title. These barriers all prevent us from using our land to enter into the economy from which we can see ourselves and our communities thrive.

It is clear that we have seen a change in momentum as far as this space is concerned. The ‘next generation’ of native title issues are due to hit us shortly through processes such as litigation regarding ILUAs, variations to determinations and compensation proceedings.^[2]

However, most importantly of all, we are now faced with the challenge of how to make the most of our rights to land and native title once we have them, for our prosperity and sustainability.

As Noel Pearson has recently said in relation to this issue:

“We’re moving from a land rights claim phase to a land rights use phase where people are ­grappling with how we make our land contribute to our ­development.”^[3]

It is this issue of development that I will explore later in greater detail.

Broome Roundtable

You may have heard that Tim Wilson, Human Rights Commissioner and I recently co-convened a roundtable on Yawuru country on the issue of Indigenous property rights. The Roundtable included a diverse range of Aboriginal and Torres Strait Islander people, with nearly 50 people in total from as far and wide as the Torres Straits, the Gulf of Carpentaria, Cape York, Sydney, the Kimberley and Darwin.

The Roundtable was held after there was significant interest on this issue when Commissioner Wilson and I undertook some consultations around the country last year.

Overwhelmingly, what participants told us at the Roundtable was that whilst there had been an expansion of the Indigenous estate since the commencement of the Native Title Act that it largely has not delivered sustainable outcomes for Aboriginal and Torres Strait Islander peoples. And in some cases native title had become a millstone, almost drowning people in a sea of regulation, red tape and process without any semblance of necessary support.

Participants in Broome identified there was a real need to have a new conversation with Government around Indigenous land and property rights and how this might translate into sustainable economic development.

A number of key challenges that face Aboriginal and Torres Strait Islander people were explored, particularly when it comes to the full realization of our rights under land rights and native title. I am sure that these issues will resonate with many of you here today.

The key themes were identified as:

1. Fungibility and native title

Fungibility and native title. That is, how do we build on the underlying communal title to create options for our economic development?

This issue of transfer, usability and conversion of title threw up many challenges around how to retain underlying customary title but make it usable in the modern sense. This often presents internal issues for traditional owner groups about how decisions are made and how benefits will be shared and responsibilities exercised. However, it also raised equally relevant issues around the many state and local government land taxes and rates that apply once conversion has taken place. These often hamper the development and economic aspirations of the communities involved right from the start.

2. Financing economic development within the Indigenous estate

The second key theme that was raised at the roundtable was the issue of financing economic development within the Indigenous estate. It was suggested that we, as Aboriginal and Torres Strait Islander peoples, needed to think outside of the box when it comes to this issue. Participants identified that we need to start considering the role of the financial services industry, as well as agencies such as Indigenous Business Australia and the Indigenous Land Corporation in the context of our economic development. These organisations could assist in under-writing costs, insurance and risk as well as helping explore options for Indigenous specific loan products.

In going down this track we have to understand and have to get these institutions to understand that there is a fair dinkum business case for doing this because we have had enough of welfare and charity.

3. Business development support and succession planning

Another key challenge that came out of the roundtable was the need to improve the capacity of our mobs to have the necessary advocacy; governance and risk management skills to successful engage in business and manage our estates in order to secure the best possible outcomes for our communities.

The lack of planning and support for native titleholders to economically develop their land was identified as one of the major failings of the native title system. In particular, Roundtable participants lamented the lack of governance skills amongst Aboriginal and Torres Strait Islander landholders to successfully engage in business development and to manage their estates.

Governance has always been at the core of our Aboriginal and Torres Strait Islander cultures and our community life. In some ways our systems of governance is a defining feature of the oldest living culture on this planet.

However, contemporary Indigenous governance needs recognises that we must now adjust our customary ways of governing to meet the expectations and regulations of non-indigenous laws and institutions. These adjustments are key if we are to translate our inherent legal rights under native title into sustainable opportunities for our people.

We need to work alongside government to equip ourselves with the knowledge and skills to turn the economic and commercial aspirations into reality. These skills will enable us to make better and informed decisions for maximum benefit and I look forward, as I am sure you do, to the release of IBA’s investment principles, which they are currently developing in partnership with Aboriginal and Torres Strait Islander peoples and organisations across the country.

I must say though, that beyond economic development, effective governance is critical to ensuring that our organisations are transparent and accountable to our communities and this is one challenge to which we must rise.

4. Compensation

The issue of compensation for unfinished business was another key theme of the Roundtable. In particular, this was raised as a way that Aboriginal and Torres Strait Islander communities might be able to leverage finances in order to support economic development opportunities and to improve the capacity of our mobs to best manage these prospects in the future. Importantly, the Roundtable highlighted that despite previous promises around compensation for historical dispossession, this has not yet materialized.

The courts had previously found that the Nguraritja had non-exclusive native title over certain parcels of land, but not over those where native title had already been extinguished.

However the Federal Court found that the South Australian government were liable for an undisclosed amount to the Nguraritja people for parcels of land over which, but for the prior extinguishing acts of government, they would have held native title.

De Rose Hill is a landmark case because it represents a significant moment in time in the native title space. That is, after 20 years of operation, we finally saw the first time compensation had been awarded for the extinguishment of native title rights and interests under the Native Title Act.

Whilst the case did little to clarify the legal principles around calculating compensation, it is one example of the positive realization after many years, of the rights of Aboriginal and Torres Strait Islander peoples to land and waters within the native title system. This achievement certainly encourages me.

A clear theme from the Broome Roundtable revealed a common frustration among many Aboriginal and Torres Strait Islander people. And it was this; hardly any compensation has come our way despite all of the fear mongering over the years about the rivers of compensation that would flow from the realization of our rights under land rights and native title.

The issue of compensation goes to the core of the initial intent of addressing the historical dispossession of Aboriginal and Torres Strait Islander peoples from their lands and waters. There were three key components to this:

• The enactment of the Native Title Act;
• The commitment to a land fund; and importantly,
• The creation of a Social Justice Package

As you will know, the first two of these three components have been implemented, with varying degrees of success and impact on our communities over the years. However, the social justice package, which was meant to address compensation for the dispossession of land and the dispersal of the Indigenous population remains unfulfilled.^[4]

My predecessor Dr Tom Calma explained the impact of never implementing a social justice package in 2008:

‘this abyss is one of the underlying reasons why the native title system is under the strain it is under today’^[5]



As the Broome Roundtable highlighted, this remains one of the key unresolved issues facing Aboriginal and Torres Strait Islander peoples and their quest for ongoing economic development.

5. Promoting Indigenous peoples right to development

Finally, the remaining key theme of the meeting was the issue of our right as Indigenous peoples to development. I think much of the dialogue on this issue in Australia has revolved around how to protect Aboriginal and Torres Strait Islander peoples from development as opposed to how to realize our rights to development and the associated benefits that come with it.

A human rights based approach has been a key part of advocacy of all Social Justice Commissioners. I believe that it is this framework that has the power to elevate the aspirations that we have as Aboriginal and Torres Strait Islander peoples in relation to land.

The tools to guide us with a new conversation with Government around the full realization of our rights in relation to land and native title can be found in the UN Declarations on the Rights of Indigenous Peoples and the Right to Development.

I have previously spoken at length about the importance of the Declaration on the Rights of Indigenous Peoples, which contains 46 articles on the rights that Indigenous peoples all around the world hold. It does not create any new rights, but rather reaffirms the rights that exist in many other international treaties and conventions.

The Declaration incorporates four fundamental human rights principles that can be categorised as:

• self-determination
• participation in decision-making underpinned by the concept of free, prior and informed consent and good faith
• respect for and protection of culture
• non-discrimination and equality.

However, the UN Declaration on the Right to Development has been a lesser-known cousin to the Declaration on the Rights of Indigenous Peoples. This Declaration on the Right to Development was adopted by the General Assembly in 1986. It contains just 10 articles on what the instrument describes as an

‘inalienable right, by which every human person and all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised’.^[6]

Some key principles underpinning this right are:

• active, free and meaningful participation in development;
• equality and non-discrimination;
• fair distribution of benefits; and
• self-determination and full sovereignty over natural wealth and resources^[7]

This Declaration centralizes the role of both the individual and government in the development process, arguing for the State to create national policies to properly ensure the development of all individuals. For Indigenous peoples around the world, the Declaration has been a means by which they can free themselves from the shackles of colonialism and share equitably in the benefits of development.^[8]

In the context of Aboriginal and Torres Strait Islander peoples, Governments have committed themselves to the economic development of our communities. This push for economic independence has sought to move away from models of government dependency and have been premised largely on the use of our land as the basis to achieve this. This independence could be realized through greater roles for Indigenous landholders through business, land management and other opportunities. This could also be translated as greater Indigenous control over our lands and resources more generally, and a decrease in the burden placed on Indigenous landholders as I have mentioned earlier today by government and other industries.

However, whilst the right to development is about improvements in economic and material outcomes, it is also about our rights as Indigenous peoples to self-determination and our rights to control our natural wealth and resources. Importantly, development is also a process through which other human rights can be realized and our wellbeing alongside all other populations is maximised.

Unfortunately, the right to development is not a concept often thought about in relation to Aboriginal and Torres Strait Islander peoples as members of a developed country.

In 2014, Australia ranked second after Norway, in the United Nations Human Development Index,^[9] a position that would seem to indicate that we all enjoy a quality of life superior to most others in the world. As a nation, this is an improvement from fourth position just over ten years ago in 2003.^[10]

But we know that these scales do not capture the social disadvantage experienced by Aboriginal and Torres Strait Islander peoples. You and I know all too well that we live shorter, poorer lives than our non-Aboriginal counterparts. This is yet another reason why a development approach is so urgently needed. We are currently not sharing in the developmental prosperity for which Australia is known. This needs to change.

Conclusion

Overwhelmingly, Aboriginal and Torres Strait Islander people have indicated that it is time for a new process of engagement to occur with the government on the topic of our rights after native title.

The new conversation that we need to be having around our rights to land and resources has been captured in the thematic areas I have just spoken about. It is clear that the current system has not delivered what had initially been intended to Aboriginal and Torres Strait Islander peoples. The preamble to the Native Title Act makes it clear that the objectives of the legislation are to:

rectify the consequences of past injustices by the special measures contained in the Act ... to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.^[11]

It goes on to mention the yet unfulfilled nature of redress through a social justice package that I alluded to earlier:

Aboriginal and Torres Strait Islander peoples have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.^[12]



Realising these aspirations, is key to our economic development and prosperity as Aboriginal and Torres Strait Islander peoples where our land is our ultimate asset.

I hope that you’ll share with me the need to move this conversation forward, in order to best realise our rights under native title and the benefits that should follow from that. In conversations with Commissioner Wilson and others, we are in the midst of developing what the next step in this process should look like and we will continue to engage with Aboriginal and Torres Strait Islander peoples such as yourselves in order to do this.

A while back I read a business management book by an American, Leon C. Megginson. In that book he argued, contrary to theories of Charles Darwin, that it was not the fittest or the strongest nor the smartest that survive but those who can manage change, that is it is the most adaptable who survive.

Friends we are the First Peoples of this country and we are the oldest living culture in the world because of our ability to adapt to ever changing environments and circumstances.

Twenty three years after the Mabo decision we are going through another adaption as we talk about how we can start to enjoy the benefits that come from land ownership in the same way that is open to all other Australians, without compromising our unique rights as Aboriginal and Torres Strait Islander people.

We will adapt, we will take advantage of these opportunities and we will leave a great legacy.

Thank you for listening.

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[1] J Altman., (2014) ‘Scullion Peddles pipedream reforms’, Journal of Indigenous Policy, At: http://www.austlii.edu.au/au/journals/JlIndigP/2014/33.pdf (viewed 5 June 2015)

[2] Australian Human Rights Commission, Paper on Indigenous Leader’s Roundtable, Property Rights, p4.

[3] N Pearson in The Australian, ‘Property rights will help economical development of Indigenous Australians’, 22 May 2015. At: http://www.theaustralian.com.au/news/features/property-rights-will-help-economic-development-of-indigenous-australians/story-e6frg6z6-1227365821530 (viewed 3 June 2015)

[4] T Calma, Native Title Report 2005, Australian Human Rights Commission, 2005, p82. At: https://www.humanrights.gov.au/sites/default/files/document/publication/social_justice_native_title_report_2013.pdf (viewed 5 June 2015)

^[5] T Calma, Native Title Report 2008, Australian Human Rights Commission (2009), p 46. At http://www.humanrights.gov.au/publications/native-title-report-2008 (viewed 5 June 2015)

[6] UN Declaration on the Right to Development, Article 1, para 1.

[7] OHCHR Website, ‘Essays in Commemoration of 25 years of the United Nations Declaration on the Right to Development’. At: http://www.ohchr.org/EN/Issues/Development/Pages/RealizingaVisionforTransformativeDevelopment.aspx (viewed 9 June 2015)

[8] N Collings, ‘Native title, economic development and the environment’, Australian Law Reform Commission Journal 15, 2009. At: http://www.austlii.edu.au/au/journals/ALRCRefJl/2009/15.html#FootnoteB6 (viewed 9 June 2015)

[9] UN Development Programme, ‘Human Development Index’, UN Human Development Report. At: http://hdr.undp.org/en/content/table-1-human-development-index-and-its-components#a (viewed 9 June 2015).

[10] UN Development Programme, ‘Human Development Index’, UN Human Development Report, p237. At http://hdr.undp.org/sites/default/files/reports/264/hdr_2003_en_complete.pdf (viewed 9 June 2015).

^[11] Native Title Act 1993 (Cth), preamble.

[12] Native Title Act 1993 (Cth), preamble.