Re-evaluating our resources - natural and human - is the future for Australia

Pragmatically, Aboriginal people are increasing as a proportion of rural and remote populations. Their birthrate is higher than the national average and more people are identifying as Indigenous. They also are a critical part of some regional economies and they are gaining increasing political influence.

Morally, Australia's Indigenous people have not been treated equitably. They have been dispossessed of their land and remain the most disadvantaged group in our society.

In my experience, the overwhelming priorities for Aboriginal and Torres Strait Islander peoples are to achieve greater economic independence and protect their culture and identity. The two go together. It's hard to maintain your own culture when you are dependent on a dominant culture's welfare.

There were great expectations that these priorities could be advanced after the High Court's Mabo decision in 1992 and the passage of the commonwealth Native Title Act in 1993. Importantly, the legislation reflected a political compromise in a process begun by the High Court. There were high hopes that the basis of a national settlement with Australia's first peoples had been achieved.

However, a lot of Aboriginal people now believe that the 1993 compromise has turned out to be unjust. The Native Title Act has been amended significantly since then and the High Court, with new membership, has identified additional constraints on native title.

Native title now is confined basically to land where no one else has a permanent interest - where the traditional owners have never been forced to leave their country - and where they can prove that they have practiced their laws and customs on a continuous basis since settlement.

Torres Strait Islanders have won native title claims because they have been able to remain on their traditional land and waters. However, there have been few determinations of native title on the mainland. The capacity for native title to assist Aboriginal economic development has been restricted largely to isolated areas and negotiations with the mining, oil, gas and electricity industries.

The Native Title Act has not served its primary purpose of providing for the recognition and protection of native title.

As well, the transaction costs are enormous, the cost of individual court cases sometimes exceeding state expenditure on Aboriginal programs. The annual cost of the National Native Title Tribunal and native title representative bodies is over $50 million.

There has to be a better way - that has been acknowledged by the High Court. In his judgement in The State of Western Australia v Ben Ward (Miriuwung Gajerrong), Justice McHugh noted:

"The deck is stacked against the native title holders whose fragile rights must give way to the superior rights of the landholder wherever 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 rights of the parties, irrespective of their merits."

Many Aboriginal people are totally frustrated and discontented with the extent to which native title has been able to advance their goals. I believe they would be prepared to consider alternatives and the timing is right for such a discussion. Some new form of national settlement might be possible - the 1993 exercise clearly has failed.