Last week on the 30th Anniversary of the Mabo decision, I attended a panel discussion hosted by the Piddington Society on the history of native title.
Opened by the current chief justice Peter Quinlan, the event was mostly full of lawyers discussing the complexities of native title.
The Piddington Society is an extremely impressive, progressive group of lawyers who do a lot of work to try and not only discuss but actively address the many inequities when it comes to the Aboriginal people in the Western Australian justice system.
This panel on native title was no different.
Mention should be made of the opening speech of the chief justice, who recognised every single group of Traditional custodians across Western Australia before noting he could not have done so were it not for native title.
The simplicity of the Chief Justice’s statement underscored the power of what he had to say in the moment.
As the evening progressed the conversation on the panel turned to how much progress has been made as part of native title.
Though true to an extent, I cannot look at native title as progress – but rather a reflection of a system which is complex and at times is a delaying mechanism for Indigenous people to have their laws and customs rightfully recognised on their own land.
Native title in practice is something which few without a law degree truly understand and appreciate.
Compelled not by government policy but by a decision of the High Court, it has become a political pressure-release valve which can be pointed to as a means to sometimes recognise and sometimes compensate for land which has been always occupied by the Indigenous population.
Whilst it may be celebrated by some, the truth is that native title does not empower the traditional custodians of the land but rather it envelopes them in a framework and legal process that can take decades to prove a traditional connection.
Taken to an extreme view, native title is yet another law designed to constrain Indigenous people and continue to regulate the use and custom of Indigenous lands.
After swathes of amendments and court rulings over time, we’ve seen the practical impact of native title be reduced to a point where it has weakened the rights of Aboriginal people to be compensated for land which was taken from them by force.
The fact that some resource companies went from hating the legislation, to embracing it, should tell you all you need to know about this issue.
As the issue of Treaty or Constitutional recognition continues to arise, Native Title legislation is often pointed to as a suitable mechanism which deals with the dispossession of Indigenous land.
In truth, native title is a weak legislative response to a very fundamental issue of land rights which was valiantly fought for by Eddie Mabo and a multitude of others.
We should not hold native title up as some exceptional government response to recognise the enduring right of Indigenous people on their own land.
It is not. It is the least worst option available to First Nations people but it should by no means be seen as the last word on this issue.
In some aspects it may have slowed progress to Treaty, but it must not be allowed to stop the important steps that need to be taken towards the final incorporation and recognition of Indigenous people.
- Zak Kirkup is of Yamatji heritage and is the former leader of the Liberal Party in Western Australia