Why it's (almost) not worth lodging a native title claim

First, even people who can prove:

• traditional rights to exclusive possession; of
• always-vacant Crown land or Aboriginal reserves (or repurchased pastoral leases); under
• 'legal systems' based in 'societies' which 'settlement' or Aboriginal policy has not interrupted;

could find government or an adjacent landowner interfering with or ignoring their title in a manner not permitted for other private land but permitted under the 1998 Native Title Act amendments.

Second, many native titles have been diminished or extinguished by grants of inconsistent titles to the same land. (Most recently, for example, the High Court ruled that native title was extinguished in the Western Division of NSW by perpetual lease grants (Wilson v Anderson).)

Third, many claimants will fail to prove that they are members of a 'society' which sustains the relic of a 'legal system' defining rights and obligations in relation to land. In the process, they may fall into irreconcilable disputes with family members and neighbours over intimate questions of shared identity. They may also spend a lot of public money which governments could choose to allow ATSIC or Attorney-generals' departments to spend on something else.

Finally, even the High Court judges who found 'in favour' of the Yorta Yorta are limited by earlier rulings (Mabo, Miriuwung-Gadjerrong) that Aboriginal legal systems are not to be recognised as legal systems. The courts deign only 'to recognise' the land rights and obligations which those legal systems define, and then only those which the claimants prove. Claimants who neglect to prove particular land traditions risk having them go 'unrecognised'. Even if they met the minority judges' standard of showing they were a self-identified community observing traditions of some longevity, the Yorta Yorta may have found that their 'recognition' was merely symbolic and did not generate meaningful land rights.

Next time someone tells you how unfortunate it is that native title has not lived up to expectations, you might want to tell them about its treatment by its 'foster' family.