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INTERVIEW - Australia's Aboriginal people heading into the next "wicked" land battle

by Paola Totaro | @p_totaro | Thomson Reuters Foundation
Tuesday, 13 September 2016 04:00 GMT

Aboriginal rights protesters demonstrate against federal government intervention in Aboriginal affairs in the Northern Territory outside old Parliament House in Canberra February 12, 2008. REUTERS/Mick Tsikas

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To claim native lands, Aboriginal Australians must wrestle with laws that are more complex than running a multi-million dollar corporation, says top lawyer

By Paola Totaro

LONDON, Sept 13 (Thomson Reuters Foundation) - Nearly a quarter of a century after Australia's Aboriginal people won the legal right to make claims on their 'country', they are fighting a new battle - a complex network of red tape required to manage the lands, a leading lawyer has warned.

Australia's National Native Title Tribunal President, Raelene Webb, said there is still an "alarming level of ignorance" about how indigenous land claims are determined.

Webb, a Queen's Council and expert on Aboriginal land matters, said this, combined with a lack of support for traditional owners once a decision on land is made, risks failing indigenous communities.

She predicts a new wave of litigation and compensation claims to vary or protect land rights granted to Aboriginal communities using the 1993 Native Title Act to ensure claims to land they have occupied for up to 50,000 years are recognised.

"Unless some progress is made in this space, there will be a lot more litigation ... from conflict [which has] at its root cause, management of native title," she told the Thomson Reuters Foundation in a telephone interview.

"The post-determination wave of litigation is threatening to be the next wicked problem in native title."

FACTBOX - At a glance: Australia's native title law

In a lengthy interview, Webb - one of Australia's leading experts in land rights laws - stressed that problems in the system fueled insecurity for not just Aboriginal people but also for businesses and government as well.

She said one of the most concerning misconceptions about native title is that it is an anachronism that locks up land, stops development and will eventually be extinguished once land is handed over for "more productive purposes".

"This is a deeply ingrained western view of property that for land to have any value, it must be productive," said Webb who took up her five-year appointment heading the Tribunal in 2013.

"This is the view that allowed the early settlers to take up the 'waste lands' of Australia and dispossess its indigenous inhabitants who could not properly be regarded as owners of the land over which they roamed," she said.

Webb said the right to negotiate aspects of the Native Title Act has given many indigenous groups their first opportunity to take control of protecting their culture and to be involved in economic activity on their land.

"The fact is that indigenous people need land in order to participate in economic development," she said.


Aboriginal people comprise about three percent of Australia's population, or about 700,000 citizens, and are affected by vast social, educational and health disparities, including lower life expectancies, higher incidence of chronic diseases, and disproportionately high incarceration rates.

Since the Native Title Act was passed in 1993, just over 300 native title determinations have been made of which 277 were made by consent, or agreement, and about 26 through litigation, Webb said.

Today, over 31 percent of the continent's land mass is covered by native title. Of this total, 11 percent is subject to exclusive native title determinations while the other 20 percent is deemed 'non-exclusive', meaning that land rights co-exist with other interests, for example with pastoral leases.

Under the law, however, after traditional owners are given title, they must establish corporations, known as Prescribed Bodies Corporate (PBCs), to manage their affairs. So far, 158 such bodies have been created.

But Webb said the long list of land management and cultural heritage obligations required of the PBCs can often be more "complex than governance of a multi-million dollar company beholden only to its shareholders".

Webb believes a lack of training, meager resources and lack of expert support forces PBCs to rely on volunteer labour and pro-bono legal advice to "see them from one AGM to the next".

On the positive side, Webb said she could sense a shift away from the hardline early views in Australia that the indigenous relationship to land is of no economic consequence and that land can only be 'developed' along non-indigenous lines.

But she stressed it was now imperative that Australia builds a more supportive and collaborative approach between PBCs, native title representative bodies, government agencies and businesses involved with native title.

"(Otherwise) Aboriginal and Torres Strait Islanders will continue to be perceived - and know they are perceived - as an alien and resented minority, a problem to be managed with a seemingly endless stream of tax-payer funded programs but never solved," she said.

(Reporting by Paola Totaro, Editing by Belinda Goldsmith; Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers humanitarian news, women's rights, trafficking, property rights and climate change. Visit news.trust.org)

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