Australian First Nations group the Gomeroi people are preparing to file their native title appeal against the Santos Narrabri Gas Project, a multi-billion-dollar project aiming to build up to 850 gas wells in the state of New South Wales. The National Native Title Tribunal ruled in December that the public benefit of the project outweighed any environmental concerns and disregarded the objections of the Gomeroi people. Gomeroi woman Sue-Ellen Tighe says the appeal sheds new hope for the Gomeroi people, telling the ABC: ‘I have more faith in the Federal Court system than I have in the National Native Title Tribunal.’
However, the Gomeroi’s claim may face even more challenges in the Australian Federal Court system. As noted by Dr Glen Anderson: ‘Indigenous people have in many instances become participants on a highly legalistic journey which, at times, twists and turns without any forewarning or regard for substantive justice.’
Looking at the last three decades of native title claims, and interpretations of the Native Title Act 1993 (Cth), it is clear that the standard of proof continues to rise. Since the landmark Mabo v Queensland (no 2) (1992) victory for native title, there have been under a dozen more High Court rulings to various degrees of success. But it’s the failed 2022 Yorta Members of the Yorta Yorta Aboriginal Community v Victoria case that depicts a native title landscape that’s frozen in time.
The Gomeroi claim also comes amid a This reflects poorly on the landscape of land rights in the Australian state, prompting critics to label it ‘judicial racism.’ The Australian government suggests that the land rights and interests of Indigenous people are recognized in over 50% of Australia’s landmass—combining national native title and state-by-state land claims. However, the degree and certainty of those stated rights and interests are open to discussion. It is also a complicated mix of freehold, pastoral leases, crown leases, public land, native title and land held by Aboriginal trusts.
Meanwhile, Australia is one of the only Commonwealth countries without a legally-binding treaty with its first peoples, particularly one decreeing over land rights and native title. A turning point however can be found in the Uluru Statement from the Heart, the largest consensus by First Nations people for a proposal for substantive recognition in Australian history. Part of the statement is the creation of a treaty between the government and First Nations people. With political momentum behind implementing the statement in full, the question becomes: what impact would an over-arching treaty have on native title in Australia?
In an attempt to paint a fuller picture of the past, present and future, it’s important to look at the problems with native title in Australia currently, our international obligations to enact a treaty and the possibilities for reform in the future. The answers may then unlock of a roadmap to help native title in Australia.
Frozen in time – Yorta Yorta and the extinguishment of hope
The judicial hurdles of native title have become more and more apparent through recent High Court interpretations of the Native Title Act 1993. One case that brings home the inevitable challenges of native title is Yorta Yorta. The failed 2002 claim sits at a precarious time for native title in Australia, where the legal concepts of extinguishment, burden of proof, tradition and continuity are tested against the legislative interpretation of the High Court of Australia. In these definitions, the scope of the powers of the Native Title Act 1993 (Cth) is defined and reflect the battle between the skeleton of Australian property laws and the acknowledgement of Indigenous human rights.
Yorta Yorta creates what could be defined as a post-Mabo (2) era, which overturned the legal fiction of terra nullius, or ‘no man’s land’, used as justification to ‘settle’ Australia in the late 1700s. The material facts of Mabo (2) hinged on the Meriam people being the original occupants of the land. During their time of occupancy, since time immemorial, they were part of an organised society, with ‘complex and intricate collections of interrelated groupings’ with a ‘strong’ and ‘enduring’ connection to the land and sea. As a decision that stretched the role of the judiciary in Australian social policy, it was considered a landmark common law decision because of the integration of international common law into Australian common law, the protection of human rights, the fact that it was a cautious correction of the common law (rather than a judicial usurpation) and because it attributed to an active role in Australia’s democracy.
In the wake of Mabo (2), the Native Title Act 1993 (Cth) was enacted. Although the judgment in Mabo (2) was a watershed moment for Indigenous land rights, the incorporation of extinguishment limited any broad-reaching effects. Native title is held to survive sovereignty, but will be extinguished under six circumstances, including the ‘cessation of the community’s connection with the land’ and ‘clear and plain legislation on the part of the crown.’ Extinguishment was incorporated into the Native Title Act, subsequently placing the burden of proof on Indigenous people, whereby a dispossessed people who have suffered violence and grave human rights abuses must in turn adhere to the dominant legal system’s approach to proving a connection to land.
It was the concepts of tradition and connection to land that were tested while interpreting the Native Title Act 1993 (Cth) in Yorta Yorta. The majority held that the claim must have roots in a pre-sovereignty society and must be part of a continuous, normative society. Although the majority acknowledged that traditions adapt and change with time, the decision emphasised continuity of tradition. As argued by Goenpul woman, Professor Aileen Moreton-Robinson: ‘In the High Court’s majority decision, concepts such as ‘tradition’, ‘continuity’ and ‘connection’ became socio-legal constructs that took on a pseudo-objective form, which holds no meaning or place in the law of the Yorta Yorta.’ It is said that native title is now frozen in time, and cases such as the failed Yorta Yorta native title claim are only cementing one idea – that native title remains out of reach for the many traditional owners seeking reconnection with country and land.
There has been some recent success in a 2016 High Court case, Griffins v Northern Territory of Australia (No 3). Although Griffins resulted in $3.3 million in compensation, this is a rare precedent and does not cover the expansive loss resulting from the legal fiction of terra nullius and settlement.
As noted by the late Dr William Jonas, former Aboriginal and Torres Strait Islander Social Justice Commissioner and Worimi man, in a 2002 address: ‘What happened to the spirit of Mabo? What happened to the promise that Mabo held out for a new relationship between Indigenous and non-Indigenous people.’ Commenting on the Miriuwung Gajerrong native title decision, he concludes that a treaty is the only way to unlock a future for native title:
Negotiation based on consent and equality can transform what was a contradiction at the foundation of our nation between the conflicting claims of Indigenous and non-Indigenous people to the jurisdiction of traditional lands, into an agreement as to the basis of our coexisting sovereignty over that same land.
The United Nations Declaration on the Rights of Indigenous People stipulates in article 37 that ‘Indigenous peoples have the right to the recognition, observance and enforcement of Treaties, Agreements and Other Constructive Arrangements concluded with States or their successors and to have States honour and respect such Treaties, Agreements and other Constructive Arrangements.’
However, although Australia is a signatory to the declaration, there is an ongoing debate about whether the strict interpretation ties Australia to a treaty-making process.
Experienced constitutional and human rights lawyer, and Associate Professor at the University of Technology Sydney, Dr Harry Hobbs, says as sovereignty was never ceded Australians have a moral and ethical obligation to adhere to article 37: ‘What is the legal basis on British acquisition of sovereignty over Australia? The High Court has said it was settlement, but it clearly wasn’t, ultimately the basis was overriding force. That’s not really a legitimate reason under international law.’
University of Newcastle Associate Lecturer and PhD candidate Bethany Butchers prefers to use the Yolngu term Makarrata intentionally, rather than treaty—as it entails a reconciliation process, meaning ‘the coming together after a struggle.’
They state a Makarrata is also essential for Australia to meet other international aspirations:
[Indigenous] ways of living harmoniously and sustainably can generate powerful impacts on international matters (for instance in climate change, conflict, or human rights issues). Specialised, local-place-based knowledges and practices can respond to the threats and effects of climate change and First Nations Peoples in Australia need to have the political authority, a seat at the table, to influence these discussions and actions. The lack of any treaty/agreement/Makarrata in Australia perpetuates the damage inflicted within the country. Internationally, legally, morally – Australia has an obligation to rectify this.
Voice, treaty and beyond
The Uluru Statement from the Heart provides a roadmap for reconciliation that relies on the proposed Indigenous Voice to Parliament first, then the creation of the Makarrata Commission for the purpose of treaty-making and truth-telling. As a national referendum on the Voice to Parliament looms, there is currently debate surrounding whether a treaty should have been signed first, and the exact wording to be included in the Australian Constitution. Djabwurrung Gunnai Gunditjmara woman and Independent Senator Lidia Thorpe left the Greens party on February 6 over her stance on a treaty, saying ‘this was the message delivered on the streets on January 26. This is the movement I was raised in – my Elders marched for Treaty. This is who I am.’ Senator Thorpe also said the Voice must be clear that sovereignty was never ceded. ‘We are the sickest, poorest, dying every day — nothing is going to change by an advisory body,’ Senator Thorpe said January 30 on ABC’s QandA.
However Assistant Minister for Indigenous Australians, Malarndirri McCarthy, reiterated that sovereignty will not be ceded in the Voice to Parliament. ‘I’m a Yanyuwa Garrwa woman from the Gulf of Carpentaria. We’ve never ceded [sovereignty]. Do you think I would stand by and let that happen? So, please, it is a misnomer’, she told QandA.
However the question lies, can a treaty save native title claims in Australia, and if so, what form would it take?
There are three identifiable ways in which we can enact change for native title in 2023. The first, and most simple, is reforming the Native Title Act. This could remove the emphasis on traditional connection to land, as defined as pre-dating ‘settlement.’ Therefore a dispossessed people would not have the burden of proof placed upon them to show a now-broken connection to land.
The second is the ability of communities to enact their own agreements. Victoria passed the Traditional Owners Settlement Act 2010 (Vic) to get around the limitations of the Native Title Act – where ‘in return for entering into a settlement, traditional owners must agree to withdraw any native title claim, pursuant to the Native Title Act 1993 (Cth) and not to make any future native title claims.’ This inability to link to the Native Title Act poses ongoing complications, and of course this is limited by jurisdiction to claims within Victoria. Victoria also continued to lead the way with the creation of their state treaty beginning in 2016. Between 2016 and 2019 community consultations were held, a Victorian Treaty Advancement Commission was created, and the Advancing the Treaty Process with Aboriginal Victorians Act 2018 (Vic) was passed.
In the state-by-state approach, Western Australia has the Noongar settlement, affecting an estimated 30,000 Noongar People and encompassing approximately 200,000 square kilometres in the South West. It’s been described as ‘Australia’s first treaty’ and consists of a bundle of rights, including 3,200 square kilometres of development and cultural land to be held by the Noongar Boodja Trust. The trust, a perpetual trust, receives yearly instalments of $50 million for 12 years and was enacted by Western Australia’s Parliament through the Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Act 2016. While the success of the Noongar settlement is palatable, it is a mere fraction of the 7.5 million square kilometres of land in Australia.
There’s also momentum on a state basis in South Australia and the Northern Territory.
Enactment – a minimum standard to be met
Dr Harry Hobbs recognises the minimum standard for a treaty is the right to self-determination. In referring to extinguishment in Mabo (2) he states:
The High Court is saying we can only go so far, and the rest of it is onto Parliament. And that’s what treaty processes are about. Treaties are political agreements between governments and aboriginal communities. Treaties do not need to follow any existing Australian laws, but they do need to be consistent with the Australian constitution, but through the treaty process laws could change. So a treaty process could end up reforming or amending the Native Title Act.
Dr Hobbs also notes the importance of state and federal governments working together to enact change, ‘to make sure the full range of possibilities are on the table.’
In noting this, some 250 language groups, and even more clans, need to interact with the treaty process. Bethany Butchers states:
Several agreements will need to be made so they can attend to the nuances of distinct First Nations groups. First Nations-led organisations and organisations created by the native title system and by land rights movements can be of use in implementing this. Giving more resources and autonomy to land councils and PBCs in their operations can help consolidate the desires of First Nations Groups in order for action to be taken in accordance with these desires.
Dr Raymond Kelly, Deputy Head of The Wollotuka Institute for Indigenous Engagement and Advancement at the University of Newcastle, said self-determinisation comes in many forms:
but it begins with reconciling on the history, where people were robbed of generations of wealth. In any community there will be a number of families done really well, but the majority of people are still living below the poverty line, I’d like to see a means of correcting that. It’s about health and healing. Also empowering young people to be involved in managing affairs… Until we begin to deal with the issues ourselves, those challenges won’t change. That gap won’t diminish much at all.
Australia has a long history of calls for treaty, dating back to 1835 when Governor Bourke declared a paper document treaty invalid, and amalgamating in the current Uluru Statement from the Heart. It displays a long timeline of resistance, strength and power, from a movement cemented in truth-telling and the seeking of cultural justice. Traditionally, every step forward has been met with a step backwards. However, hope may lie in the upcoming referendum and the subsequent creation of the Makarrata Commission. As the state-led treaty-making processes depict, there’s real leadership and momentum within Australian communities, where concepts of sovereignty and self-determination may propel forward a more valuable and holistic future for native title.
Brooke Forbes is a final year Juris Doctor candidate at Newcastle Law School, in Newcastle, New South Wales, Australia.