Land rights and native title aren’t the same — and the two systems could spark Indigenous conflict
It’s a proud achievement.
But it’s a legal system that didn’t see Mabo coming.
Native title, which was introduced to Australian law in 1994 after the historic 1992 Mabo decision, created a different mechanism for recognising Indigenous right to country.
That right is based on the idea of pre-existing Indigenous connection to land — a ‘forever’ connection to place.
It carries significant power.
It’s powerful to be recognised as being from a place since time immemorial.
It’s also powerful that, despite how limited native title has been in NSW, there is still an incredible commitment from Indigenous communities to going through the courts, through incredibly detailed processes; to having their connection to country recognised by the state.
Native title affords people so much authority in relation to their lives and their country.
The problem is, native title is a different claim to land from the land rights that already existed in NSW.
Land rights vs native title
Land rights are different from native title in that they aren’t about a previous connection to county.
Land rights, and the Land Council network that the ALRA created, are premised on principles of democratic participation based on your indigeneity and where you live.
In only a few instances, such as the co-management of National Parks, do they draw on traditional connections and knowledge.
The ALRA marked a point of departure from a prevailing policy of assimilation to provide a form of self-determination.
It was constructed as a social justice package — sidestepping questions about sovereignty and dispossession.
In NSW, native title is a set of rights offered over land that might be already held by Aboriginal people under the Land Rights Act.
This means there are two laws over the land that recognise Aboriginal rights and interest in the land.
Land rights and native title: What’s the difference?
And the different laws place limits on decisions land councils can make about their land.
For example, for a land council to do anything with its land — even something as simple as building a shed in the backyard of the land council for the mob to come around and have a BBQ — requires that land council to seek to clarify that native title doesn’t exist on that land.
If it does exist, the land council has to get an order extinguishing native title.
The process is lengthy, and it’s expensive. It gridlocks how land councils can deal with their land.
The two laws also mean there are two competing authorities about who speaks for country, how your interests are represented, how you advocate your interests.
Native title groups are based on traditional law and customs — Aboriginal ways of knowing and being.
Whereas land councils are modern, representative structures that speak much more easily back to the state.
Land rights are about social justice and recognition that life has been irrevocably disrupted by colonisation, the violence enacted upon Aboriginal people by the state.
Native title, in effect, says that Aboriginal people have retained connections, lores and customs related to place.
Both have the potential to hugely — and positively — impact the lives of Aboriginal people.
But the laws move in two different directions.
In doing so, they can potentially pit Aboriginal groups against each other.
NSW land justice ‘miniscule’
In terms of land rights, NSW has some of the most innovative laws in the country.
This is especially true when you compare it to Tasmania, where just 12 parcels of land have been handed to an Aboriginal land council, or Victoria, where a mere .2 per cent of the state is recognised as having land rights.
Where NSW falls down, however, is with its lack of political will to process these land claims.
Since 1983 there have been approximately 44,300 land rights claims made over available Crown Land under the ALRA.
Of these, a staggering 32,261 (as at the end of 2017) are yet to be determined by the NSW Government.
Similarly, native title claims have been negligent in NSW; they have proceeded at a glacial pace.
There are cases that have been before the courts for 20 years.
The Commonwealth assumed that native title would be of limited application in the south eastern states.
That assumption has been a depressing reality.
By dint of violent and disruptive colonisation, the ability to prove ongoing connection to place — the basis of native title — was seriously damaged.
In south-eastern Australia the Indigenous people who have been most dispossessed of land are also those who have repossessed it the least.
Across northern Australia up to 50 per cent of land has been repossessed, whereas the amount of land recovered in the south-east is miniscule.
Tasmania records zero cases of native title recognition. Victoria has four cases and in NSW there have been just 12 determinations that native title exists.
Many more native title claims, covering half of the state, await registration and determination in NSW.
Things are speeding up — along with the risk of conflict
A combination of public and legal pressure has seen a rapid increase in NSW native title claims being heard.
Half of all successful NSW native title claims have been approved in the last three years.
As the number of claims continues to rise, the two mechanisms — land rights and native title — will increasingly interface.
That means the potential for intra-community conflict is increasing too — and it needs urgent attention.
The political response to this?
There hasn’t been one.
Successive governments in NSW have failed to deal seriously with native title and overlooked suggestions to better align the two and potentially conflicting set of rights.
But this needs to be addressed — now.
That formerly pitifully slow to be processed native title claims are now, finally, being handled more swiftly means the areas of overlapping entitlements in the state is increasing.
Fixing this problem has become urgent.
A solution is not impossible — but it requires the State Government to lift its game.
We need a rethink of how these two interests in land can return the best possible benefit to Aboriginal people.
There could be a simple procedure introduced that makes it possible for land councils to deal with land affected by native title, or land councils’ membership could change to include a representative of native title groups.
With political will and well thought out Aboriginal community strategy, there is a real possibility of achieving land justice in NSW.