Native Title is NOT Land Rights
The way in which a Koori person identifies with our culture, Country and history is complex. Each of us are the sum of over 65,000 years of unbroken history, family bonds and cultural practices, centred firmly in the traditional lands to which we belong. These are deep, incalculably rich connections and considerations which have ensured that Koori people have not only survived invasion, colonisation and the brutalisation of our people, but have also thrived, despite the numerous, significant and ongoing challenges placed before us, including that of Native Title.
Most Australians have some basic awareness of Native Title, but very few have any real understanding of what Native Title actually is. To many it’s a buzz phrase which first appeared in 1993 and thanks to the mainstream media became the boogieman of the day and fodder for the political lunatic fringe. The idea that “blacks” were going to take their homes, farms or livelihoods from them, or from their children, became a genuine fear, irrespective of the available evidence for dispelling the notion. The Australian mainstream media, led by its right wing pundits, seized upon the confusion, planting a new seed of paranoia and by stoking the fires of hate. The media to a large degree was responsible for using the public’s fears for commercial gain, by capitalising upon latent or casual racism. This paired with conservative politicians echoing and enforcing what they had heard in the media, led to the legitimisation of racism as a political tool in this country.
Native Title was never the threat to European Australians it was presented as. It was and continues however to be an ongoing problem for Australia’s First Peoples.
Native Title was introduced into Australian legislation in 1993 as a response to the need by the federal government to address the fallout from the 1992 Mabo v Queensland court case. This was a test case in which Eddie Mabo, a Torres Straits Traditional Owner challenged the state of Queensland in the High Court of Australia, on the grounds that Terra Nullius – the concept of Australia having been uninhabited prior to British invasion, was a fiction, thus signalling that English law as applied to the continent of Australia was illegal and that the Meriam people were the rightful owners of the Mer Islands.
The High Court of Australia found in Mabo’s favour, showing that the established British rules of reception, relating to the manner in which British law interacts with international law, treaties and precedents, had been applied incorrectly. The high court found that the rules of reception had been applied based on the notion that Australia was uninhabited, rather than pre-existing rules and precedents which relate specifically to the invasion or interaction with populated lands.
On the back of Eddie Mabo’s historic win, the federal government realised it would have a significant fight on its hands. Aboriginal and Torres Strait Islander people had been struggling for land rights for over 200 years, first through open and guerrilla warfare and later via organised political action, led by the likes of Windradyne in the 1820’s and Simon Wonga in the 1860’s. The Mabo decision had the potential to herald the beginning of a genuine dialogue between the First Peoples of Australia and the Commonwealth. This however was not to be.
Instead of a genuine and equitable attempt to deliver Land Rights and reconciliation, the government chose to introduce Native Title. This is a system which provides for First Peoples an ability to access part of their traditional lands and waters, for cultural practices, where those are managed as crown or public lands. This is achieved by the Commonwealth without any recognition of its own impropriety, or acceptance of Aboriginal or Torres Strait Islander sovereignty.
Native Title means that an Aboriginal or Torres Strait Islander person, or group can apply for and receive access to crown (public) lands that fall within their traditional Country and its boundaries. This is possible under the provision that they are able to demonstrate to the Commonwealth that their connections to said Country have been maintained via cultural practices, regular access and traditions.
Whilst land and water access are critical to both the maintenance and furthering of culture, importantly it can also provide for the creation of revenue streams, via employment in the management of parks and cultural tours, thus empowering communities in their ability to develop capacity, providing for positive outcomes.
Access to lands by Traditional Owners however can become complicated by any other parties who may also wish to use those lands. For example, if a mining company was to seek access to lands subject to native title, they would be required to negotiate with the Traditional Owner group holding native title over those lands. However, if the mining interests should be unable to come to an agreement with the Traditional Owners, they can then apply to the National Native Title Tribunal for a ruling. This however is a process that has seen Traditional Owners intimidated by mining companies outside of the tribunal, and portrayed in the media as greedy, or ungrateful for the relatively small investments made by mining interests into their communities. It’s a system which Tony McAvoy, Australia’s first Aboriginal Queen’s Counsel has said “embeds racism” in the way it places Traditional Owners under duress to approve mining developments, or potentially risk losing their land without compensation. 
Additionally, it’s a system which is stacked against First Peoples, where it can be extremely difficult for communities to prove their connection to Country, as demonstrated in the Members of the Yorta Yorta Aboriginal Community v Victoria  high court decision. In the decision, Native Title was said to have been “washed away by the tide of history”, where the onus was placed on the community to prove that their named apical ancestors had been born in the claim area, and belonged to the Yorta Yorta people. The ruling was destined to fail, in that it relied upon the Yorta Yorta being able to provide a paper trail, proving their ancestors connections, despite belonging to a culture which at the time of first contact and in the first decades of invasion was one based purely in oral tradition. Oral evidence was devalued and European designed documentary evidence was misinterpreted as significant detail was left by the wayside.
The establishment of Native Title has also contributed to an exponential rise in in-fighting and inter-Clan/Nation land disputes. These are the by-product of the failures of the Australian legal system, as demonstrated in the aforementioned case. Where grey areas, or a lack of knowledge exists in regard to Clan boundaries, these discrepancies have set individuals and groups who hold different views towards significant, emotional, spiritual and financial conflict.
Native Title holds value for First Peoples communities, however, as a phrase first raised with celebrated Aboriginal Land Rights and human rights activist, Professor Gary Foley “Native Title is NOT Land Rights.” Where we once marched in the streets in great numbers, we now fight on other fronts, to protest other significant areas of government failure. Land Rights are no longer fought for, because unfortunately many of us believe we already have them.
- 2018 ‘Native title system ‘embeds racism’ Australia’s first Indigenous silk says’, The Guardian – Australian edition, 19 July 2018, https://www.theguardian.com/australia-news/2018/jul/19/native-title-system-embeds-racism-australias-first-indigenous-silk-says
- 2001 ‘Members of the Yorta Yorta Aboriginal Community v State of Victoria & Ors M128/2001  HCATrans 251’ (23 May 2002), http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans/2002/251.html