If I were Attorney-General I would repeal of the Native Title Act 1993 (NTA) and establish a new, non-adversarial, non-court-based system to recognise Aboriginal land rights. The present system is not working. It takes too long and is too onerous to determine native title claims through the court process.
In the 14 years since the NTA was enacted, approximately 117 native title claims have been determined by court judgment, but of these only 22 were judgments after a contested hearing (the rest were by consent or unopposed). There remain approximately 497 claims to be determined. The Native Title Tribunal has estimated that, on current trends, it will take about 30 years to try the remaining claims. (See ‘Native title claims: Overcoming obstacles to achieve real outcomes’, paper for Native Title Development Conference, Brisbane, 27 October 2008, pp 6-7.)
The results have been less than satisfactory for all parties concerned. A fundamental difficulty is the high threshold that must be reached to establish native title. Under the NTA, claimants have to show that they have native title under traditional laws and customs which has its roots in a society that preceded the date on which the Crown asserted sovereignty, and that they have maintained a substantially continuous connection with the area under those traditional laws and customs.
The problem with setting such a high threshold is that many claims may well end in failure because the necessary proofs cannot be assembled. In this way, the purpose of the NTA – recognising and protecting native title – is not being achieved. Indeed, failure of a land claim, after a lengthy process of preparing for a court hearing and giving evidence in court, is likely to create great disappointment because expectations have been raised. As Aboriginal Social Justice Commissioner Tom Calma was reported recently as saying, the native title system is a ‘tough and often cruel system in need of urgent reform’ (The Age, 2 January 2009).
There is also a fundamental unfairness in the way the NTA currently stands in light of the so-called ‘Wik’ amendments; that is, the amendments introduced by the Native Title Amendment Act 1998. The NTA, as introduced in 1993, represented an historic compromise by the Aboriginal community of the time. Following the High Court’s Mabo decision, it appeared likely that many past acts of governments were invalid because they qualified or removed native title rights contrary to the provisions of the Racial Discrimination Act 1975. The Aboriginal community (through its political leaders) in effect accepted the validation of past invalid acts in exchange for a system that protected and recognised native title claims. However, the raft of amendments to the NTA introduced in 1998 made establishing native title that much more difficult and unfairly departed from the political compromise that had been reached in 1993.
Finally, the current system is very expensive to administer. In a 2005 report, it was stated that the Commonwealth, State and Territory governments had invested over $1 billion in the native title claims system and that the Commonwealth continued to invest over $100 million a year on the system. (See Richard Potok, ‘A report into the professional development needs of Native Title Representative Body lawyers’, 7 April 2005, p 1.)
Reforms to the current system have recently been announced. In October 2008, the Commonwealth Attorney-General announced that the Federal Court would assume control of native title claims from start to end. In July 2008, Native Title Ministers meeting in Perth endorsed an alternative pathway to settle native title claims which had been initiated by Victoria.
However, rather than merely looking at ways to improve the functionality of the current system, it is worth standing back and asking whether the whole model needs to be changed. With the best will in the world, negotiations to settle native title claims will inevitably take place against the backdrop of the legal rules contained in the NTA and in cases interpreting that statute. And whether mediations take place under the auspices of the Tribunal or the Federal Court, there is of course no power to direct a settlement.
The problem, or challenge, posed by Aboriginal land claims is arguably more about the relationship between present-day Indigenous and non-Indigenous Australians, and the way in which the current Australian community deals with past dispossession and other injustices, than about property law and proving continuous traditional ownership. In other words, Aboriginal land claims raise political issues that may best be dealt with by a political rather than legal process.
An alternative approach, for example, would be to establish a board of eminent persons who would assess Aboriginal land claims (the name ‘native’ title seems inappropriate) on behalf of Commonwealth and State Governments and recognise such rights as it considers appropriate according to specified criteria. The criteria would be set to promote a generous and practical resolution of claims, without requiring proof of continuous connection with the area under traditional laws and customs. The board would have the power to direct that compensation be paid in appropriate cases where recognition of land rights was not possible. Compensation would also be able to be awarded to non-Indigenous landowners affected by land claims. The money saved on fighting legal battles would probably cover much of the compensation that needed to be paid. And in any event, the money would be going to the people affected rather than lawyers.
The success of the process at the political level would depend on the reputation and impartiality of those comprising the board, the guidelines upon which the board would act, and the outcomes achieved by this process.
Building on the Prime Minister’s historic apology to the stolen generations, the government should see the resolution of Aboriginal land claims as an opportunity to make amends for past injustices. We should devise a system that resolves land claims with a generosity of spirit in keeping with the Mabo decision and the apology. The way in which we deal with Aboriginal land claims now will set the tone for relations between Indigenous and non-Indigenous Australians well into the future.
Mark Moshinsky SC is a barrister at the Victorian Bar specialising in constitutional and administrative law. He was Secretary of Liberty Victoria from 1998 to 2004.