New Visions for Native Title and Reconciliation

A new vision for native title is needed to deliver on the hopes and expectations of Indigenous and non-Indigenous Australians following the High Court’s decisions in Mabo and Wik. That is the message emerging from the latest edition of the ALRC’s Reform journal, to be launched today in Sydney by the Attorney-General of Australia, the Hon Robert McClelland—the Minister responsible for Native Title—Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr Tom Calma, and ALRC President, Professor David Weisbrot.

Professor Weisbrot said that “There now appears to be a real mood for change in the Australian Parliament, with the recent announcement by the Attorney-General of proposed significant amendments to the Native Title Act, so it is very timely to hear the voices of a range of leading experts in this field.

“While it is theoretically possible for native title disputes to be settled quickly and cooperatively, the experience has been otherwise. The combination of procedural and evidential complexity, high stakes, multiple parties, uncertainty of outcome, and a winner-takes-all approach means that most cases are heavily litigated, go on for years, cost a fortune in legal and other costs—and often result in crushing disappointment, since claimants bear the onus of proof in difficult circumstances.

“This edition of Reform contains 17 articles by a remarkable collection of eminent authors. Tom Calma has written the introductory article, describing the ‘failing framework’ of the native title system. Unfortunately, few would now seriously argue with that characterisation. We are also privileged to include an article by the Chief Justice of Australia, the Hon Robert French—formerly a part-time Commissioner of the ALRC—which offers some ideas for ‘lifting the burden’ of native title.

“Indigenous Affairs Minister Jenny Macklin sets out her vision for better utilising native title agreements and royalty payments to help close the gap between Indigenous and non-Indigenous Australians,” Prof Weisbrot said.

Other contributors include: Megan Davis, Director of the Indigenous Law Centre, UNSW, on the implications of the UN Declaration on the Rights of Indigenous Peoples for Australian law; Monica Morgan, a Yorta Yorta woman, who makes a powerful statement about the personal impact that an adverse native title determination can have on Indigenous claimants; Tony McAvoy, one of eight Indigenous barristers currently practising in Australia, offers a blueprint for protecting the ‘rights and interests of Indigenous people, while streamlining the convoluted processes’ of the native title system; and Steven Ross and Neil Ward, who argue for a new paradigm of Indigenous involvement in land and water management, based on respect for Indigenous people’s contemporary relationships with their country.

The ALRC also launches its inaugural Reconciliation Action Plan (RAP) today, aimed at ensuring that Indigenous people are effectively engaged in the work of the ALRC and the processes of law reform, so that Australia’s laws have proper regard to Indigenous interests, protect and promote Indigenous culture and improve social and economic outcomes for Indigenous people.

Professor Weisbrot said, “In common with many institutions, our legal system has failed historically to guarantee better social and economic outcomes for Indigenous peoples. As the national law reform body, the ALRC has the opportunity to contribute to social justice, equity and inclusion in Australia. Through this RAP, we have committed ourselves to practical initiatives to begin this process, starting with the establishment of an Indigenous Advisory Committee and an Indigenous student internship program.”