Land rights in limbo, by Tim Dick - 27th January 2007
(Credit: The Sydney Morning Herald)

The native title system has caused conflict without achieving much for Aborigines in NSW, writes Tim Dick.

There were tears on the courthouse steps that day, 10 years ago, when a judge told the Dunghutti people that a little patch of Crescent Head was theirs. A little more than 12 hectares of their traditional country was recognised by Australian law as their own, and Aborigines across NSW celebrated.

The tears have long since stopped, replaced by frustration that it is taking so long to resolve any of the other claims made in NSW.

Their win was the first on mainland Australia, five years after the High Court told Eddie Mabo's people they had exclusive possession over their Torres Strait island, and inspired others to make claims - people such Des Dyer, secretary of the Darug Tribal Aboriginal Corporation, which claimed parts of Sydney in 1997.

"We actually thought, 'Well, everyone else is getting theirs, ours will be next', but it just seems to be stagnant," he says.

Nearly a decade on, Dyer says he and other Darug claimants - including the corporation's chairman, Gordon Workman - are "disheartened" at the progress of their claim for recognition as traditional owners of land in western Sydney.

So are many others. Nearly 15 years since Mabo excited part of the nation and worried the rest, it is hard to find much in the southern states to justify either reaction.

Hundreds of claims languish unresolved in the purgatory of the native title system. Many more are non-starters, for almost all of the state is now beyond reach.

There is no native title over freehold land, while in a single decision, the High Court put 40 per cent of NSW - leasehold land in the west - permanently off-limits.

Compare that with northern Australia, where native title has legs: 28,300 square kilometres is recognised in Queensland, and some form of native title covers a quarter of Western Australia, or 589,000 square kilometres.

In the south, Tasmania and the ACT have no native title, Victoria has about 400 square kilometres and the single recognised area in NSW covers about 0.000012 per cent of the state.

The imminent Githabul agreement, about patches of Crown land near the Queensland border, means the NSW count will soon number two.

But after millions of dollars in legal fees, many thousands of hours' toil, and the hopes of Aboriginal people being first raised, then dashed, it is fair to ask: what happened?

Perhaps southern traditional owners are not quite Aboriginal enough for the courts to recognise their native title. The Queensland Aboriginal leader Noel Pearson said as much after the High Court rejected the Yorta Yorta claim over land along the Murray River in 2002. The claimants failed to prove that they had maintained a "substantially uninterrupted" connection to their lands by exercising traditional customs and practices which originated before 1788, when the Crown assumed sovereignty.

The ruling raised the evidentiary bar for all other claims, which led Pearson to attack the courts' record on native title.

"The whitefellas do not only get to keep all that they have accumulated, but the blacks only get a fraction of what is left over," he said. "[They] only get to share a co-existing and subservient title where they are able to surmount the most unreasonable and unyielding barriers of proof, and indeed, only where they prove that they meet white Australia's cultural and legal prejudices about what constitutes 'real Aborigines'.

"To the Australian courts … the Yorta Yorta peoples were not sufficiently Aboriginal to get one square metre of what was left over after the whites had taken all that they wanted."

Pearson is not alone in holding this view.

The barrister John Basten, QC, spoke on the same theme shortly before he became a Supreme Court judge.

"There is also a view that the greater the adoption of modern technology and life-styles (including education, welfare and health services), the greater the chance that a court will find that traditional laws and customs have been abandoned, and that native title has been lost," he said.

This is the obvious paradox of native title as the deliverance of justice for the dispossessed: where Aboriginal dispossession was most extensive, it is least likely to exist.

Rather, it is most likely to exist in areas ignored by European settlement.

Even when the rights are recognised, they are rarely economically productive, says the Aboriginal Social Justice Commissioner, Tom Calma, because they are limited to ancient traditions. If their rights are not entirely frozen, they are at least on 200-year-old ice.

"The right to fish under traditional laws has not translated into commercial fishing rights; the native title right to take flora and fauna is not able to be used to sell bush foods or native wildlife as of right. The traditional use of minerals has not become a native title right to exploit minerals such as through mining enterprises," he says in his Native Title Report. "Native title rights are limited in law to anachronistic, domestic, non-commercial rights."

Despite that, Calma argues native title should not be considered a failure. But in NSW, it is hard to find evidence to the contrary.

Geoff Scott is the acting chief executive of the NSW Aboriginal Land Council, established in 1983 under state land rights legislation designed to return vacant Crown land to Aboriginal ownership.

After 23 years only about 1 per cent of NSW - more than 80,000 hectares - has been returned, while an invested pool of land tax revenue, diverted to fund its operations, has grown to more that $600 million.

Scott questions the worth of native title, saying it delivers far more certainty for non-indigenous interests than for Aborigines.

"It's really an issue of how much money do you spend for minimal results," he says. "The potential for native title in the southern states is very, very poor. If we could've had the cash straight up, I think the outcomes would have been far greater."

It also makes his job more difficult because, to use land granted under the land rights scheme, native title must be extinguished. That means it is often left to the land councils to seek a court determination that no native title exists.

That can cause conflict, Scott says, as traditional owners for native title purposes may not have membership of a land council, for which any resident Aborigine qualifies.

"In NSW, most people don't live on the land they are traditionally associated with," Scott says. "There is a significant population from outside NSW itself, and many people have moved because of government dislocation, or just to get work. And native title works against that kind of structure."

Warren Mundine, the national Labor Party president, is chief executive of NSW Native Title Services, which represents claimants.

"You're seeing a clash between the land councils and traditional owners in NSW," Mundine says. "In fact, when I go and sit down with other native title rep bodies outside of NSW, they find it quite bizarre that we have this conflict."

While NSW has only one determination that native title exists, it has 23 that it does not exist, most sought as a result of the land council system.

He says legislative reform - "a good clean-up" - would reduce the conflict, which extends further than interests in land.

"Who speaks for country? Do the land councils speak for the protection of cultural heritage or do the traditional owners?" he asks. "The dilemma for traditional owners is they don't have the funding system that the land councils do, the massive amounts of money. They don't have a structure to operate from, while the land councils do."

Others believe conflicts between the systems are more often symptoms of friction that would exist anyway.

Mundine says the land rights scheme is a genuine effort by the NSW Government to redress dispossession. He believes there is a place for native title, despite the slow start. "When everyone looks at Aboriginal affairs, they always tend to look north," he says, meaning north Queensland, the Northern Territory, Western Australia, and the north-west of South Australia. "These are the areas of the 'true Aboriginals' and their culture and how they operate. What's happening with native title [in the south], we're dispelling that myth."

With two determinations in NSW? He says more are to come and, he hopes, more quickly, now that the legal revolution has settled down.

"In Byron Bay, there'll be a big announcement by the Premier about that, and also there'll be the final finishing of Dunghutti," he says of part two of that Crescent Head victory of a decade ago. "Those announcements are coming up and there'll be a few flowing closely after that."

Some further success comes outside the system. Some agreements are not counted in the statistics because, while sparked by native title claims, they end without legal recognition.

Mundine gives the Eastern Gas Pipeline agreement as an example. After years of litigation, about $4 million will be distributed to traditional owners in Gippsland and southern NSW. It came after native title claims were lodged, although it did not result in a determination that it existed.

Graeme Neate, president of the National Native Title Tribunal, points to other agreements, on different terms, in Byron Bay, Dubbo and Coonabarabran.

Again the native title claims got people talking and eventually led to Aboriginal people being given interests in pockets of land, like a burial ground in Dubbo or a role in managing a new national park at Cape Byron.

But for many groups a successful native title claim will not win many benefits except access to land.

Mundine says that is not the sole objective: "I think it's been worth it - the self-esteem, the pride, the recognition of people and how they define themselves. It has been 100 per cent better than what it previously was."

To those who have much, the significance of a determination of native title can be elusive without money or exclusive possession of land. But to many Aboriginal people, a mere declaration by Australian law that particular land is part of their traditional country provides some salve from the long denigration of their culture.

There is legislation now before Parliament designed to encourage speedier negotiation in good faith and agreement.

When introducing the changes, the federal Attorney-General, Philip Ruddock, said the system was "too costly and time-consuming". (The former Democrats senator Aden Ridgeway calculated that the cost to the Federal Government had passed $600 million. That was three years ago.)

After the news broke this month that NSW's second determination was looming, the shadow attorney-general, Kelvin Thomson, said Ruddock should "hang his head in shame" about native title delays.

Nationally, 93 claims are finalised, but there are more than 600 to resolve.

Thomson slammed the average six-year delay, and said organisations representing claimants had never had enough money to do their job. Ruddock accused him of not being constructive and blamed, in part, a shortage of the anthropologists needed to prove native title.

Whatever the cause, the delays have real bite for claimants, considering how much earlier Aborigines die than everyone else - 17 years earlier, says the latest edition of the Australian Bureau of Statistics' yearbook.

When a named representative dies, the claim must begin again, although the Government is considering changing that rule.

The Darugs' claim will pass 10 years in May, and there is no guarantee of success.

Given the record in NSW, they may have to rely on the State Government's goodwill.

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