THE NATIVE Title Act has failed to deliver on its promise to provide recognition and protection of native title, according to a new report from the Human Rights and Equal Opportunity Commission.
Dedicated to the memory of Eddie Mabo, the Native Title Report 2007 is a painstaking examination of the “slow or non-existent” progress made towards equal rights and equal opportunities for Aboriginal peoples and Torres Strait Islanders since the landmark Mabo case in 1981. The report was launched by Aboriginal and Torres Strait Islander Social Justice Commissioner Tom Calma in Sydney on Monday 31 March.
Twenty-five recommendations arise from the report, with particular emphasis on recommendation 1.1 which deals with “unscrambling the existing legislative gridlock in native title”, and recommendation 1.2 which proposes a national summit on the native title system.
The sobering report outlines in detail the ways in which the native title system has failed to recognise and protect native title and further advance reconciliation between Australia’s past and present, and between Indigenous and non-Indigenous Australians.
“I believe that Australia failed its Indigenous peoples and the rest of its citizens, by not keeping its promises that were implicit in the 1967 referendum. The Native Title Act tends to humiliate the people it should serve,” Calma wrote in the preamble to the report.
“Indeed I fear in [Israeli philosopher Avishai] Margalit’s words that its ‘justice may lack compassion and might even express vindictiveness’. It has failed to deliver [Queen’s counsel Julian] Burnside’s self-respect.”
The 25 recommendations include changes to the claims resolution process, respondent funding, and the definition of prescribed bodies corporate. Broader changes to the law of native title are also discussed, arising from the report of the Native Title Tribunal.
Among the criticisms of the broader system and the application of law include the transfer and subsequent control of Indigenous knowledge to non-Indigenous “experts”, that Indigenous people are forced to prove what they already know, the insurmountably high legal barriers to obtaining recognition of native title and the conflict that claims cause between Indigenous and non-Indigenous people.
Commissioner Calma observed that there has been much activity and little progress made since he began the task of compiling the report. During the reporting period: significant amendments were made to the Native Title Act as a result of the High Court’s decision in the Wik case in 1998; the Corporations (Aboriginal and Torres Strait Islander) Act was passed, establishing a new regime for Aboriginal corporations; and a number of significant Federal Court decisions were handed down, reinforcing the difficulties in obtaining recognition and compensation under the Native Title Act.
In the meantime, there have only been 68 determinations of entries on the Native Title Register where native title has been found to exist.
The signing of the United Nations Declaration on the Rights of Indigenous Peoples has focused international eyes on Australia’s progress, providing a benchmark for domestic policy.
Australia has agreed to adhere to international standards for the protection of “human rights and fundamental freedoms” set out in the Universal Declaration of Human Rights, and ratified and agreed to be bound by other instruments of international law including the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights.
The tabling of the Native Title Report coincides with a new government, significantly one that made a pre-election committed to improving the nation’s treatment of Indigenous people. Prime Minister Kevin Rudd made a public apology to Aboriginal Australians as one of the first acts of his government. The report could become another landmark event, compelling the government to move past symbolism and into action.
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