Native Title and the seven-year itch

Native Title is a dodgy conveyance. If it was a car, it would be a late 80s family sedan, belching black smoke, and struggling to exceed speeds of 50kph going down hill. The recalcitrant wreck would refuse to start on cold winter mornings, and spend more time in the mechanics shop than on the road. People would look at it and say “that car is cactus” and things even more vulgar.

It would be stating the bleeding obvious to observe that the machine was moribund.

But native title isn't a car. It's an impossibly tortuous set of court cases, pieces of legislation, courts, bureaucracies, lawyers, anthropologists and assorted other hangers-on.

Sometimes the Indigenous claimants themselves even get a look-in.

Now the legislators are at it again, tinkering with the carburettor on a car whose engine has given up the ghost.

Recently the federal Attorney General, “smiling” Phillip Ruddock released the Federal Government's response to the Hiley report, or more properly the Native Title Claims Resolution Review (pdf 468KB) (government committees of enquiry are not permitted to have titles of less than five words).

Conventional wisdom is that native title operates to get Indigenous groups “a seat at the table”. That is, an entrée to negotiations.

This reduces the expectations of all concerned and creates a scenario where a minimum of progress is all that anyone really expects. With the application of enough spin it can even be made to look good.

The 1992 Mabo decision unleashed a stallion, albeit hobbled by the subsequent Native Title Act. However, the current evocation looks more like a Shetland pony.

It's a gentle animal with little power, plodding around a well-worn track and causing no offence to anyone. But in this circus, it's the lawyers who take the taxpayers for a ride.

The mob with the unfortunate job of having to manage the native title bureaucracy is the National Native Title Tribunal. They have to umpire a game using rules that are not of their writing. It's a tough gig.

Over time, I've had a bit to do with the tribunal. The people that I deal with there are invariably friendly, knowledgeable and efficient. But the scoreboard looms over the whole industry like a tombstone.

Over the past nine years the Commonwealth alone has spent more than $900 million on native title. Only 81 determinations have been made. Don't grab for the calculator, I'll save you the trouble. Each determination has cost over $11 million, even before the money that state governments pour into the native title cash sink has been counted.

But far be it for me to lob bombs from high in the NIT ramparts, without adding anything constructive to the discussion.

You might know of the “three-second rule” which says that kids who drop tasty treats on the ground can probably put them back in their mouths if the whole thing happens instantaneously. Mug golfers will be familiar with the “30-second rule” which allows badly duffed tee-shots to be retaken without penalty, if the ball can be recovered within half a minute.

Both of these laws are sanctified by “custom and practice” and operate to save a lot of drama, and keep things moving along. In the spirit of these traditions I propose a purgative for native title.

What we need is a single, simple amendment stating that any claimant application not resolved within seven years of lodgement shall be deemed to be proven.

This would put the dingo in the chook-pen, big time.

You will see Attorneys' General galvanised as never before. Mediation will proceed with the purpose and determination of a real estate agent seeking to have land rezoned.

Anthropologists will catch on fire, so quickly will they be moved in their endeavours to complete connection reports.

Native Title representative bodies will be properly resourced, and formerly impassable technical minefields will be swept clean overnight.

State governments will stop chattering about “negotiation rather than litigation” and actually get cracking.

Yes, it's possible that a few claimants might drag the chain in an attempt to win their case by nursing it across the seven-year finish line.

It's hard to think of a richer irony.

But all the resources of the state, brought to bear in a considered and co-ordinated fashion, should be able to sort things out within this generous time-frame. So let's scratch the seven year itch.

Addendum: On Tuesday, September 19, in the Federal Court, Judge Murray Wilcox found that the Nyoongar people of Perth had demonstrated a connection to their traditional country. This finding allows for the possibility that native title has survived in some pockets of land in the Perth metropolitan area. The Western Australian government is likely to appeal against the decision.