The problems with the Indigenous Response
1. Disputes and conflicting, overlapping claims: the inability to control greed and power struggles, and the lack of strategic leadership by Representative Bodies
The way in which claims were organised, lodged and prosecuted by indigenous groups and their advisors following the enactment of the 1993 legislation could not have been more harmful to indigenous interests. We failed to control greed and the power struggles within and between claimants groups, not the least between conflicting parts of families. The Representative Bodies largely failed to provide any strategic leadership to address the emerging problems – though this was of course very hard after 1993 when freelance lawyers roamed the countryside picking off clients and setting them off against rivals, including the Representative Bodies themselves. The 1998 amendments helped to put more rigour into the process, but many of the claims that are registered were prepared with about as much planning, strategy, forethought and consultation as went into the European dismemberment of colonial Africa.
The legacy of this madness and the problems that they represent for the future conduct of these claims still remains an outstanding responsibility for the Representative Bodies and the claimants. There is no use just hoping that litigation will provide resolution instead of subjecting all claims to proper research and intra-indigenous consideration and mediation.
I was recently struck by some comments made by the late Professor Bill Stanner in a note on Aboriginal law and its possible recognition where he concluded as follows:
“The social situation of many Aborigines will change with rapidity over the next decade. Many will die wealthy, in possession of money or other assets for which their traditional law provides no disposal-procedure. There will be conflicts of interest between Aborigines which may be insoluble unless their own doctrine of what I have termed rights, duties, liabilities and immunities can be developed. The ‘Aboriginal problem’ thus goes beyond the ‘retention of their traditional lifestyle’: there is a problem of development as well as one of preservation.”
We have so far failed to develop our own doctrines to deal with our lands and resources as commercial property, which can be accumulated and developed. Greed and conflict will continue to plague our people as long as we fail to confront Professor Stanner’s prescient advice.
2. The failure of indigenous leaders and organisations to resist the development of a second-rate native title legal and consultancy industry
I will not go on at length about the problem being that the native title legal and consulting industry that sprung up in the wake of the NTA is at best, second-rate. It is a generalisation that does not do full justice to everyone; but it must be our predominant conclusion. My main point is not just that the quality of the professionals who have been involved on the indigenous side has been poor – often they are not – but it is the failure of indigenous leaders and organisations to control their actions and activities. Having protected native title through the legislative battles, the indigenous leadership then delegated to the lawyers and the consultants the whole responsibility for prosecuting native title. And we allowed an unaccountable, undirected, often wasteful, industry to develop around native title claims – and failed to insist on strategic leadership. That we have ended up in a hole is in considerable part the consequence of poor strategic, intellectual and political organisation on our part.
3. The failure to develop a high standard legal discourse on the common law meaning of native title
This point is related to the previous point. The Australian legal and intellectual discourse on the common law meaning of native title in my view is embarrassing compared with the Canadian discussion. Most of the discourse and publications since 1993 have centred on procedural issues arising from the legislative framework. There has been comparatively little quality discussion of the common law. We have no equivalents to Kent McNeil and Brian Slattery of Canada. In fact Kent McNeil’s few commentaries on the Australian law represent the best that there is. And the Australian academic and intellectual discussion of native title has had no impact on the judiciary, in the way that the Canadian commentators have had on the decisions of their Supreme Court.
Of course the publications and commentaries produced by the onetime research division of the National Native Title Tribunal and the Centre for Aboriginal Economic Policy Research did not answer the need for a high quality discourse on the meaning of native title at common law. There are still today so many crucial conceptual issues that remain unresolved and unarticulated in native title. These issues are just left dangling – we hope that the courts will give meaning and clarity in the absence of any serious consideration from advocates for native title.
Let me now close with one final point.
The Yorta Yorta had proved their case
Contrary to the High Court’s dismissal of the Yorta Yorta appeal, the Yorta Yorta People had proved their case. The trial judge, Justice Olney, made three crucial findings of fact that, in my view, mean that the Yorta Yorta proved their case.
Firstly, Justice Olney found that Aboriginal people were in occupation of the claimed land at the time of sovereignty.
Secondly, Justice Olney found that two of the ancestral figures – Edward Walker and Kitty Atkinson/Cooper – were descended from those who occupied the land at the time of sovereignty.
Thirdly, Justice Olney accepted that many of the contemporary Yorta Yorta claimants were descendants of these two ancestral figures.
This is what Justice Olney concluded at para 104:
“From the foregoing I conclude that only the descendants of Edward Walker and those of Kitty Atkinson/Cooper, have been shown to be descended from persons who were in 1788 indigenous inhabitants of part of the claim area. Without going into detail, it is fair to say however, that a significant number of the claimant group, including some who specifically identify themselves as Bangerang, are descended from either Edward Walker or Kitty Atkinson/Cooper. There are however some claimants whose line of descent does not include either of these ancestors.”
So the Yorta Yorta had proved that a native title burdened the radical title of the Crown at the time of sovereignty: Native title came into existence at this time. They had proved that these occupants included two ancestors of the claimants: Edward Walker and Kitty Atkinson/Cooper. They had also proved their descent from these two ancestors. They had therefore proved their case.
So how is it that Justice Olney and the High Court could then presume to cast the Yorta Yorta into an identity wilderness – a people who didn’t exist as a people anymore? This represents misapplication of the common law – and we cannot accept this.