Late in his term on the High Court, Justice McHugh, one of the majority in the Mabo decision and one of the dissentients in Wik, had cause to look back over the history of native title litigation:
The dispossession of the Aboriginal peoples from their lands was a great wrong ... But it is becoming increasingly clear to me that redress cannot be achieved by a system that depends on evaluating the competing legal rights of landholders and native-title holders. The deck is stacked against the native-title holders whose fragile rights must give way to the superior rights of the landholders whenever the two classes of rights conflict. And it is a system that is costly and time-consuming.
At present, the chief beneficiaries of the system are the legal representatives of the parties. It may be that the time has come to think of abandoning the present system, a system that simply seeks to declare and enforce the legal rights of the parties, irrespective of their merits. A better system may be an arbitral system that declares what the rights of the parties ought to be according to the justice and circumstances of the individual case.
The issue now is not the legitimacy of land rights but determining the cut-off point for recognising native title rights when other parties also have rights over the same land, and matching the remaining native title rights with the real, rather than imagined, Aboriginal and Torres Strait Islander aspirations.
Noel Pearson, says that “native title is all about what is left over. And land rights have never been about the dispossession of the colonisers and their descendents. Whether it be statutory land rights or common law land rights - these land rights have always been focused on remnant lands.”
Sixteen per cent of the Australian continent is now owned or controlled by Aboriginal and Torres Strait Islander people. And yet Graeme Neate, the president of the Native Title Tribunal, says too great a weight of expectation has been put on native title “to deliver what it was not capable of delivering”. He says there are areas of Australia where native title will deliver little or nothing.
A country's system of land law and governance is undoubtedly more complex once Indigenous land rights are recognised. The cost of this complexity is high when a country like Australia has long delayed the recognition. The benefits to Indigenous people are less and patchy when many of the dispossessed have had no option except to live away from their lands for generations. The complexity and patchiness provide no warrant for returning to the terra nullius mindset.
While Australia's Indigenous leaders are seeking a way forward for their people in the short and long terms, the academic historians have been at war interpreting and re-interpreting the conflict and meeting between Aborigines and the colonisers.
Following the publication of Keith Windschuttle's The Fabrication of Aboriginal History, Stuart McIntyre published The History Wars and has now edited a collection entitled The Historian's Conscience: Australian Historians on the Ethics of History.
Greg Dening writes an essay in the latest collection entitled “Living with and in deep time”. He recalls the celebration at the National Library in Canberra when two items of Australian heritage were placed on the Memory of the World Register. Those items, joining documents from other countries such as the Magna Carta and the US Declaration of Independence, were not the Australian Constitution or even the batting records of Donald Bradman, but rather Captain James Cook's journal from the Endeavour voyage of 1768-1771 culminating in his hoisting the flag on Possession Island, and the papers relating to Eddie Mabo's case in the High Court.
Dening describes the reverence with which he donned the cotton gloves to peruse these documents in the Manuscript Reading Room of the library. He takes up Eddie Mabo's drawings of his land and his people. This file “needs a slow, slow read”. Dening says this file is Mabo's “expression of how deep time has left its mark on the present.” Here is Dening's evocative description of his reading of these papers:
He (Eddie Mabo) taps a truth the way we all tap truths from living, but in ways which need to be tolerated by those whose notion of law and evidence is blinkered by legal tradition and constitution and who need to find some entry into Eddie Mabo's otherness. The other papers in the Mabo Papers - of judges, lawyers, anthropologists, historians, witnesses of first people telling their stories - belong to the Memory of the World because the whole world faces the issue of how it lives with the Deep Time of all its first peoples, overrun and dispossessed as they are. It belongs to World Memory because the papers [reflect] the Australian people struggling to do justice and to live with the Deep Time all around us.
We Australians have belatedly come to the right starting point on an endless search for justice between Indigenous and non-Indigenous citizens. Land rights and self-determination are necessary but insufficient antidotes for Indigenous minorities wanting to belong in post-colonial societies coming to terms with their history.
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