Inside Story

Native title: the missing link

Books | A diverse new collection of essays lays out part of the roadmap for realising the potential of native title, writes Michael Dillon. But the political system isn’t keeping up with the courts

Michael Dillon 28 July 2015 2689 words

Reinforcing the momentum: detail from photographer Edward Tran’s cover image for Native Title from Mabo to Akiba, taken at Mangkuna (Corkbark) on Karajarri country in the Kimberley, Western Australia, in November 2014. © Kimberley Land Council

Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment?
Edited by Sean Brennan, Megan Davis, Brendan Edgeworth and Leon Terrill | The Federation Press | $84.95

This collection of essays is greater than the sum of its parts, offering much to interested bystanders as well as to participants in the native title system. It not only presents an overarching analysis of native title, but also allows contributors to focus on different elements of the landscape and air disagreements on some key issues. As a result, its seventeen chapters resonate with ideas and analysis, and display both the vibrant state of native title today and its dizzying complexity.

Apart from the informative introductory essay by the editors, all of whom are academic lawyers based at the UNSW Law School, the collection is bookended by two forthright and in some ways contradictory essays.

At the front, Bret Walker SC argues that Australian native title law is fundamentally flawed. He contends that the law unfairly imposes an evidentiary burden that other property holders do not confront, is under-conceptualised by judges, and is too quick and arbitrary in requiring the extinguishment of native title interests. Walker argues that the Native Title Act’s attempts to encourage mediation build in an inertia that leads to the compromise of what should be recognised as cut and dried rights.

At the back end, Glen Kelly and Stuart Bradfield outline the case for the Noongar people’s strategy of moving beyond native title, and negotiating what comes close to being a comprehensive settlement with the Western Australian government. This agreement, when concluded, will benefit almost half of the Western Australian Aboriginal population, and avert the cost and uncertainty of a native title claim process. In return for total benefits exceeding a billion dollars – including $600 million in a trust for land acquisition and management, and freehold title to up to 320,000 hectares of land across an area larger than Victoria – the Noongar native title claimants will give up any future claim to native title over that area.

The essays between these two bookends address the panoply of legal and political issues that native title claimants and holders must come to terms with. To their credit, in addition to legal analysis, the editors have gone out of their way to include and engage with broader political issues affecting native title in Australia.

Jon Altman and Francis Markham, in an extremely illuminating chapter, introduce a geospatial analysis of the expanding footprint of the Indigenous estate, including both statutory land rights title and common law–based native title across the continent. A number of maps and tables outline the extent and location of Indigenous land tenure, including in relation to other factors such as vegetation, threatened species and national reserves. They provide a much-needed context for the legal and policy issues permeating native title. For example, while statutory land rights tenures cover some 10 per cent of the Australian continental landmass, determined native title tenures cover a further 23 per cent, and current registered claims (yet to be determined) cover a further 33 per cent of the continent. Yet Indigenous residents of the existing Indigenous estate number only around 75,000, and in the yet-to-be-determined “claimed” estate, only some 225,000. It is little wonder that Indigenous interests’ potential for policy and political influence on native title issues is virtually non-existent.

One hugely important theme of current and increasing significance is the alienability of native title land. In an insightful and masterful analysis, David Yarrow argues that the High Court under-conceptualised the issue of alienability, and that there is no fundamental reason why the current definitional imperative that native title is inalienable should not be revised by the courts or the legislature. In essence, he is arguing that Indigenous self-determination requires the capacity to alienate (or sell) the land. Conservative or pro-market theorists have advocated this idea for many years, so the fact that an advocate of Indigenous self-determination is making the same case might signal that its time has come.

Andrew Chalk and Sean Brennan point out, in an essay on the NSW Land Rights Act, that Aboriginal title under that statute is alienable but requires an 80 per cent vote of the communal owners to authorise sale. This is in contrast to most of the land rights legislation in Australia. In his usefully complementary chapter, Leon Terrill provides an accessible and insightful synthesis of Hernando de Soto’s influential views on the importance of liberating the “dead capital” imprisoned in informal (and thus inalienable) land tenure, along with an assessment of the arguments of de Soto’s critics. Terrill sets up the case that native title is sui generis, and de Soto’s arguments in favour of alienable title don’t necessarily apply to native title tenures.

While Yarrow’s and de Soto’s views have intrinsic merit, the policy benefits of shifting “broad acre” native title from inalienable to alienable tenure are not overwhelming. As a number of the authors point out, capacity and governance, as well as adequate regulation and oversight would be prerequisites of such a shift. In their absence, the risk of extensive tracts of land being irrevocably lost to the Indigenous estate is considerable. On the other hand, where native title exists in townships and settlements, there may well be a stronger case for greater alienability. Whatever one’s views in balancing these competing considerations, through the inclusion of various alternative analyses the editors have shone a light on the complexity of the choices facing the nation in just one corner of the native title policy landscape.

A second theme that emerges from the collection relates to the institutional framework in place to facilitate the exercise of native title rights once determined. A number of the legal chapters refer to the incentives built into the Native Title Act towards “balkanisation” of claims and native title determinations. David Trigger’s chapter on the micro-politics of social inclusion in claims, and to a lesser extent Danielle Campbell and Janet Hunt’s chapter on the community allocation of payments under the Northern Territory land rights legislation point to how internal dynamics within Aboriginal social structures can similarly lead towards group fragmentation.

In separate chapters, Marcia Langton and Tim Rowse assess the utility of the corporate structures required by the Native Title Act, and their effect on the capacity of native title holders to use the rights that they have had recognised. Rowse’s essay is conceptually sophisticated, but leaves the policy implications opaque. Langton proposes (albeit “provisionally”) changes to native title legislation to facilitate more regional approaches to the composition of native title holding bodies. Her argument is both persuasive and attractive. She is almost alone among the contributing authors in breaking free of academic “neutrality” or caution and proposing specific public policy change. Her proposal requires further analysis by others to map out a pathway to legislative reform. Interestingly, the Victorian and forthcoming Noongar native title settlement agreements appear to be conscious attempts by native title holders themselves to address the advantages of regionally based solutions to managing traditional land holdings.

A third theme, indeed the centre of gravity of the book, is the courts’ detailed exploration and exposition of native title law, in particular the competing judicial interpretations of the components and conceptualisation of native title since the Mabo case. The courts have progressively articulated a more organic view of native title, which incorporates an inherent capacity to reflect change and transformation. This is the journey from Mabo to Akiba referred to in the book’s title, Akiba being a High Court 2013 judgement confirming the recognition of a native title right to take fish for commercial purposes in the Torres Strait.

While acknowledging the considerable strengths of the book, it is nevertheless valuable to consider its shortcomings.

The structure is perhaps too conventional. In their introductory essay the editors articulate four modes that facilitate engagement between Indigenous peoples and settler states: legislation, litigation, policy and administration, and negotiation. The book then divides into two parts: part one, “Legal Dynamics in the Development of Native Title,” and part two, “Native Title as a Vehicle for Indigenous Empowerment.”

This is a particularly passive framework, which says nothing about the capacity for political and policy influence of Indigenous peoples and their organisations, and which ignores the role of business organisations as a potential component of political and policy advocacy in Indigenous contexts. An alternative framework might have focused on the context (both historical and policy) of native title, current issues (both legal and political), and finally the structural underpinning and implications affecting or constraining policy change in the future.

Such a framework would have facilitated a more thematic structure, integrating legal analysis, policy and political analysis. This may have assisted in overcoming the comparative silence of the book on the nuts and bolts of native title public policy.

To take one example, the fact that primary policy responsibility for native title within the federal government has resided with the Attorney-General’s Department for the majority of the past twenty years has led to policy issues being framed in overly legalistic ways, to the detriment of the underlying policy objectives that the Native Title Act might support. Yet while a number of chapters comment on the federal government’s propensity to oppose native title claims in the courts, none make the link to where and why these decisions are being made.

A second weakness is the book’s under-emphasis on the structural issues surrounding use of native title payments and benefits by Prescribed Bodies Corporate (holding corporations established under the Native Title Act) and other Indigenous groups. While Campbell and Hunt’s chapter discusses the processes used by the Central Land Council to broaden the choices available to statutory payment recipients, the book provides no overall account of the size and significance of native title payments made over the past twenty years, or how those funds are being distributed by resource developers, and allocated by native title holders and claimants.

Yet it is arguable that these structural issues are the crucial determinants of whether native title rights will empower Indigenous people into the future. In very simple terms, decisions by native title holders to consume the financial proceeds arising from negotiated agreements to access their lands, rather than save or invest those funds, will effectively disempower Indigenous interests over the long term. Decisions to save and invest will empower them. Unfortunately, these issues receive only passing attention in the collection.

A third shortcoming is the lack of any substantive discussion of post-1975 compensation issues. Native title is extremely vulnerable to extinguishment (a point made in a number of the legal chapters), but following the enactment of the Racial Discrimination Act in 1975, and reinforcement by provisions of the Native Title Act itself, extinguishment requires just terms compensation. The interaction between this legislative imperative for just terms compensation and the uncertainty over where native title continues to exist has set up a policy dynamic that favours the early settlement of native title claims. The Yawuru around Broome and the Noongar peoples in Western Australia’s southwest are beneficiaries of this dynamic. In short, state governments have an incentive to settle now, rather than possibly face enormous compensation claims in the future, particularly in locations where native title may have been extinguished by grants of title to facilitate high-value urban development.

Similarly, the vexed issue of Commonwealth assistance with the costs of potential state compensation obligations, offered by the Keating government after the passage of the Native Title Act, is an underlying and hidden driver of much of the federal–state interactions over native title policy.

The states have an incentive to negotiate settlement with native title claimants. But the financial contributions by states to these agreements are not technically compensation for extinguishment of native title, and so far the Commonwealth has resisted considerable pressure over many years to substantively contribute to such negotiated settlements. The Commonwealth’s reticence to underwrite settlements to which it is not a party is understandable, but its frugality may be inhibiting the negotiated settlement of both native title claims and claims for compensation, thus adding to future costs of litigation for all potential parties.

Litigation for compensation for extinguishment of native title is in its infancy, but is likely to emerge as a key element in the politics of native title over the next twenty years. The shape of these future judicial decisions will play a major role in determining whether Indigenous interests are benefited and potentially empowered. In the meantime, the states and the Commonwealth are warily circling each other over the issue of which level of government will eventually pay the major share of these future liabilities.

These compensation issues are virtually absent from the book, perhaps because so far they have been under-represented in the cases brought before the courts. Yet they underlie much of the positioning by key players and stakeholders in the native title policy domain, and will ultimately determine the extent to which native title can empower Indigenous interests.

While it is perhaps harsh to criticise a book for what is not included, fully assessing the complex issue of Indigenous empowerment demands a more policy-oriented focus than this collection brings to bear. The legal analyses in part one of the book are of a very high quality, but often fail to take the next step of assessing the public policy options and choices inherent in the issues being canvassed. The empowerment analyses in the second section are insightful and hugely informative about the complexities of on-the-ground management of native title issues. However, the link back to the legal issues driving policy outcomes is under-articulated. So, for example, nowhere does the book address the practical political challenges of getting sensible reforms onto the legislative agenda – reforms such as those released by the Australian Law Reform Commission in its April 2015 report Connection to Country, or those raised some years ago by Indigenous interests led by Marcia Langton, and the Minerals Council of Australia in relation to effective use of native title payments.

Notwithstanding its political profile and undoubted significance for Australian land law and ultimately for economic development, on the key substantive issues native title has become a public policy-making and legislative reform dead end. The nation’s native title ministers met in 2013 and 2014 after a hiatus of four years, but without any apparent outcomes. The courts have been left to do the heavy lifting. This should hardly be a surprise, as arguably the Mabo decision itself was engendered by the incapacity of the Australian polity to deliver land justice to Indigenous Australians via statutory land rights legislation.

To ensure that native title has a positive and enduring transformative impact, we need effective and pragmatic legislated reform that acknowledges the realities of past injustice; that reduces the onerous thickets of administration and regulation hindering effective use of the rights that have been recognised and “won”; and that builds political and policy coalitions within and beyond Indigenous interests to keep positive institutional and structural reform on the national agenda. Achieving this reform, rather than any dearth of ideas or analysis, is the real challenge for native title in Australia.

At present the nation is not in that space. The claims process established under the Native Title Act continues to spool out new native title determinations, but the political system is not meeting the challenges of ensuring those claims deliver benefits. Australians, both Indigenous and non-Indigenous, will need to continue looking to the courts to deliver the solutions.

This collection of analytically sophisticated and diverse essays is a considerable contribution to meeting those challenges. It will reinforce the momentum within the courts towards more sensible conceptualisation and articulation of native title rights. From Mabo to Akiba doesn’t lay out the complete roadmap for the journey, but it does explore and synthesise the issues that need to be addressed if native title is to fulfil its potential as a vehicle for achieving a just reconciliation between the nation and its original owners. •