Native title is enduring the death of a thousand cuts. There are more
benefits for miners, business, and governments than for native title
claimants in last week’s landmark High Court decisions. The Court has sent
a number of clear messages to the community and its politicians.
First, the wrong of Indigenous dispossession partially redeemed by Mabo
and Wik cannot be righted effectively through the courts. Justice
Michael Kirby criticised the "jungle" of native title law which
now means that "the benefits intended for Australia’s Indigenous
peoples … are being channelled into costs of administration and litigation
that leave everyone dissatisfied and many disappointed". Second,
Australia’s native title system is a poor deliverer of Indigenous land
rights and social justice. "The deck is stacked against the native
title holders," concluded Justice Michael McHugh, who urged a
comprehensive rethinking of the present system.
Third, coexistence is here to stay but native title’s possible
coexistence with mining and pastoral rights is nothing like equal joint
ownership. The Indigenous right to speak for country and to say and control
what happens to that country is severely curtailed by supervening and
superior leasehold rights. Fourth, native title is not as far-reaching as
many experts and Indigenous people hoped, in terms of both what it covers
and where it still survives.
Finally, the courts cannot provide a complete list of land titles
extinguishing native title or a general catalogue of coexisting native title
rights. So, native title advice will continue to be a necessary and
profitable source of work for lawyers, who Justice McHugh described as
"the chief beneficiaries of the system".
What is native title’s status after last week’s decisions? Native
title rights are not as extensive as first thought. Native title is
extinguished by perpetual leases over much of the Western Division of NSW.
This leaves Queensland, Western Australia, and the Northern Territory as the
main native title battlefields if the High Court finally rejects the Yorta
Yorta claim in Victoria. The rejection of native title rights to minerals
and petroleum in WA and the Northern Territory almost certainly means their
death-knell elsewhere too. Native title’s coexistence with mining and
pastoral leases is likely to be the norm, after successive High Court
decisions to that effect covering Queensland, Western Australia, and the
Native title does not protect Indigenous cultural knowledge in its own
right, beyond its relevance for controlling access to land. There is no
exclusive native title right to fish in tidal waters. Where governmental or
commercial landholding rights are inconsistent with native title, native
title gives way. Where they are not inconsistent, native title is not
extinguished but the other rights prevail. Some residual native title rights
can still coexist with some pastoral and mining leases. Native title can be
partially extinguished bit by bit.
What this really means is that mining and pastoral leases extinguish the
important native title right to control access to land, leaving only
residual native title rights largely over undeveloped and unused areas of a
lease. The promise of equal co-existence for Indigenous and non-Indigenous
people on leasehold land seems hollow in that light.
Successive federal governments and the High Court have each contributed
to a lumbering and unwieldy native title regulatory juggernaut which
increases costs and decreases certainty for the mining industry without much
corresponding improvement in Indigenous social justice. Yet, however flawed
in hindsight, Paul Keating’s original Native Title Act established a
necessary framework for native title. It also created important mechanisms
of Indigenous empowerment like native title compensation and the famous
right to negotiate with miners and governments.
Similarly, despite its other drawbacks for Indigenous people, the Howard
Government’s 10 Point Plan establishes a workable framework for negotiated
agreements about native title. While the High Court consistently fails to
provide the degree of certainty and practical guidance about native title
sought by business and its legal advisers, last week’s cases are the
culmination of 10 years of sufficient High Court native title principles to
guide ongoing native title negotiations and determinations.
What will happen from here? Advice on native title matters for Indigenous
and non-Indigenous parties alike remains a claim-by-claim, place-by-place,
and title-by-title exercise. The native title legal industry will survive.
Many miners are already negotiating with native title claimants. So it is
business as usual for them after last week’s cases, with the bonus of more
certainty for negotiation purposes about the content and extinguishment of
In both cases, the High Court issued short legal summaries. Almost all of
the media reports in the following 24 hours depended heavily on those
summaries rather than the hundreds of pages of judicial reasons. The High
Court should do this more often, given its public role at the apex of the
judicial arm of government.
Of course, this is not the end of native title litigation. Its next wave
is likely to include compensation for native title holders whose rights were
extinguished by governmental actions and grants of title between 1975 (when
the Racial Discrimination Act commenced) and 1996 (when Wik was
decided). That is a sleeper issue for governments.
The advance of native title generated by Mabo, fanned by Wik,
and then rolled back by John Howard’s 10 Point Plan has stalled, at least
in the courts. The answers lie more in negotiated solutions on the ground
than in judicial and parliamentary solutions.