Opportunities offered to Aboriginal and Torres Strait Islander people under Indigenous Land Use Agreements often come at too high a cost, WA Senator Pat Dodson has warned.
Senator Dodson said agreements — where native title holders and other parties can agree on the use of native title land for mutual benefit and economic development — is too often linked to the extinguishment of native title.
“Far too often, the price of that opportunity has been too high, in my view, leading to the extinguishment of native title, forever and a day, leaving a lingering burden on the shoulders of the native title holders,” he said.
Senator Dodson, Labor’s Assistant Minister for Indigenous Affairs and Aboriginal and Torres Strait Islanders, was delivering a speech at the Australian National University this month in honour of land rights pioneer Eddie Mabo.
He said amendments to the Native Title Act introduced by former Liberal Prime Minister John Howard’s government — which opened the way for the agreements — were intended to return Australia to the idea of ‘terra nullius’, or nobody’s land.
“The Howard Ten Point Plan led to the 1996 amendments to the Native Title Act, and in the words of his Deputy Tim Fischer, delivered ‘bucket-loads of extinguishment’,” Senator Dodson said.
“They opened the opportunity for agreement-making, which unfortunately is too often structurally tied to extinguishment.”
Senator Dodson said the Native Title Act had become increasingly complex and Mr Mabo would probably have difficulty today understanding how his vision had “become brutalised by Parliament”.
He said native title rights should not be subject to the whim of governments. Amendments to legislation should only be made with the informed consent of native title holders, he said.
In the recent case of amendments that came before the Federal Parliament following the historic McGlade decision of the Federal Court, Senator Dodson said the agreement could now go back to the process of registration for settlement.
“At every step, the Labor Party has pushed for consultation on these Bills, through a Senate Committee, through submissions and through consultations with representatives of the Native Title Representative bodies,” he said.
Senator Dodson said the Native Title Act needed to be reworked to better align itself with Mr Mabo’s original vision.
He said lawmakers needed to rethink the idea that an agreement for alternative uses of native title land required extinguishment of native title rights.
The onus of proof for native title should also be moved from the native title applicants to the Crown and compensation should be available to Aboriginal and Torres Strait Islander people for loss of enjoyment, access and use of native title lands.
Senator Dodson said Aboriginal and Torres Strait Island people were the owners and governors of their own countries before colonists began to occupy their territories and rule over them.
“Today those native title holders under the Native Title Act are evidence of their descent from their ancestors and are the living testimony of their prior occupation of their lands and waters,” he said.
“They and their people proclaim continuing occupation.
“This land was not, and is not, terra nullius.
“The only thing that threatens this is the application of extinguishment written into the Native Title Act. It is more sinister than its existence as a legal mechanism, because in most cases it requires the consent of the very people that hold the native title.
“This is neither honourable, nor generous.
“This is treachery and brings shame to the Mabo name. It belittles the vision and motives of Mr Mabo and the other families who fought and won a seminal victory in the High Court.”
Meanwhile, Senator Dodson said the report of the Referendum Council — which follows the historic Uluru Statement from the Heart and is due at the end of the month — would need weighty consideration.
“If the Referendum Council’s recommendations do not get broad parliamentary support, it will fail and there will be no referendum,” he said.
“If there is broad support, then it requires careful consideration of a Bill and Explanatory Memorandum that can pass through this challenging and complicated Parliament.”
The ‘Uluru Statement’ called for a First Nations Voice in the Constitution and a Makarrata Commission to umpire agreement-making between governments and First Nations people.
“It is time we acknowledged that Indigenous people were not included in the Constitutional Conventions that were held all over Australia in the lead up to Federation,” Senator Dodson said.
“The Australian Constitution was written by people who thought Indigenous people were lesser beings; a dying race with no sense of land use and development.”