Confessions of a land rights advocate

24 December 2006

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.'

16% 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

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Confessions of a land rights advocate

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