Native Title – where to now?

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 Northern Territory.

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 native title.

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.