Australian Native Peoples Reconciliation
Some Mabo Myths Produced by ... The Indigenous Law Center, Faculty of Law, University of New South Wales.
Web Publication by Mountain Man Graphics, Australia

Mabo Myth 1

That native title is about grants of land
to Aborigines and Torress Strait Islanders.

WRONG. Native title represents the recognition by Australian law of the prior property rights of those Indigenous Australians who still retain their traditional spiritual and cultural ties to land.

That the recognition of native title
put non-Indigenous titles (backyards, etc) at risk.

WRONG. The High Court, in the Mabo decision in 1992, said that native title would be extinguished by government acts, including grants of land, which are clearly inconsistent with the exercise of native title rights and interests. But the effect of lhe Racial Discrimination Act 1975 (Cth) placed a question mark over the validity of titles granted by govemments after 1995. That was the major reason for the enactment of the Native Title Act 1993 (Cth) (the NTA). The NTA validated "past acts" between 1975 - 1993; it established processes for identifying which parts of Australia are still subject to native title; and it laid down a non-discriminatory regime for "future acts" by governments. Generally, governments may only do, in respect of native title land, what they may do in respect of land under freehold title. In addition, for acts related to mining, or some compulsory acquisitions, native title holders may have a time-limited "right to negotiate"; failing agreement, a tribunal may decide whether mining should go ahead, and a Minister even has a last resort power to overide a tribunal determination.

That the NTA has proved to be "unworkable"

WRONG. The major problem in obtaining determinations of native title has been that most governments have taken a hard line position on legal points that have not yet been resolved by the courts, and have resisted negotiated agreements. As a result, applications have to be decided by the Federal Court.

There have been some delays in relation to a few mining proposals, but most have gone through smoothly.

That the Wik decision presented unmanageable problems.

WRONG. There was a legal question whether a pastoralist would need the consent of any native title holders before he or she could excavate a dam, etc. Indigenous peoples organisations offered to support an amendment which would confirm the right of pastoralists to do such things.

There was also the practical issue of how to manage the co-existence of native title and the pastoral lease. Indigenous peoples' organisations proposed that this could best be handled through regional and local agreements. The Wik decision made it clear that, in the event of a conflict of interests, the rights of the pastoralist would prevail.

The major problem was that some governments (eg, Queensland) had chosen to ignore the possibility that native title might co-exist with pastoral leases, and had chosen not to go through the NTA processes in granting mining and other interests. Once again, there was concern that those interests should be validated.

That the Native Title Amendment Bill 1997 will produce "certainty"

WRONG. What is certain is that it will be subject to Constitutional challenge, that it will be socially divisive, that it will set back Reconciliation for another generation, that it will attract international criticism and that there will be a huge compensation bill to be borne by taxpayers.

The above article was one brochure distributed as part of a community information package during the meeting A Night of Reconciliation, held on the evening of Thursday March 5, 1998 at the Manly Warringah Rubgy League Club. The authorship and copyright of the above is to be attributed to The Indigenous Law Center, Faculty of Law, University of New South Wales.

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