Author: Senator Patrick Dodson
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SENATOR PATRICK DODSON IS THE SHADOW ASSISTANT MINISTER FOR INDIGENOUS AFFAIRS AND ABORIGINAL AND TORRES STRAIT ISLANDERS, AND IS A SENATOR FOR WESTERN AUSTRALIA.
The following is Senator Dodson’s keynote speech to the National Native Title Conference.
The conference, which was on this week in Broome, was the largest Native Title Conference ever held in Australia.
Senator Dodson delivered his speech as both a law boss of Yawuru country, on which the conference was held, and as Shadow Assistant Minister for Aboriginal and Torres Strait Islanders.
It’s a timely speech, as it comes as the Government are proposing amendments to the National Native Title act, and the Joint Select Committee on Constitutional Recognition is having public hearings on what form a Voice would take, and how a Makarrata Commission could be enacted.
I welcome you to Yawuru country, my country, our country, our land.
I welcome all the countrymen that have come from all over Australia, especially those who have travelled the furthest.
Today I would like to talk about the need for us to rethink some of the underpinning to the Native Title Act and some of our thinking around it.
I listened to the Minister very carefully and I know and he knows that the detail in what he speaks is the thing that I get most interested in.
And I looked out to that sea, and as he spoke I wondered what was swimming in there, where the sharks here, where the other good fish is, and where the currents are running. Because it’s the detail of these good intentions that really have to be analysed and thought about when it comes to matters of Native Title.
I want to talk about what we might take for granted in terms of Native Title; what gives me concern about the current status of the Native Title regime; and some of the advantages Native Title offers to First Nations People, in Australia today.
One of the troubling issues for Native Title in today’s political and legal landscape is the issue of compensation.
We cannot deny the fact that First Nations Peoples in this continent had our lands taken from us without negotiation, without purchase, without consent; and without any treaty, unlike other Commonwealth nations.
This dispossession was cloaked in the insidious myth of terra nullius.
Ø No negotiations needed to take place when the land belonged to no one.
Ø No compensation flows when any prior ownership is denied.
Ø No rights or benefits flow when rights are not recognised in the first place.
First Nations people were denied the opportunity to enjoy what was to be ours before it was taken from us.
It was taken without regard for, or justice to, our unique human existence, cultures and the enjoyment of our land, waters and environments.
The Timber Creek native title compensation case has been one opportunity for the law to work through the issues of going beyond just physical redress in defining compensation.
Calculation of non-economic loss (or ‘solatium’) is now part of the consideration for Native Title compensation.
This issue has been advanced in the case of Northern Territory of Australia v Griffiths.
At this point I wish to pay tribute to one of the great Kimberley First Nations leaders, the late Mr. Griffiths whose unexpected loss was really a shock, as so many of these old people that I have known passed on, not only do we lose much, but we also lose their day to day guidance of how to navigate through tricky and difficult situations.
It was through the legal work related to his country at Timber Creek, that the legal notion of compensation has been extended to include the concept of solatium.
The Courts are still working through this issue no doubt.
A separate and distinct element of the compensation related to the non-economic loss of cultural, spiritual and ceremonial attachment to the land which all parties accepted should be accounted for as “solatium”.
Above my desk in the Senate is one of Mr Griffith’s paintings.
It shows his Ord River country and the Camels, cattle and horses being pushed across his lands.
It is a painting of his land as a map and as a history.
I respect the painting and the history that it shows. It reminds me, in Canberra, of land and our attachments to it.
I also respect the man who has passed, and his contribution to our long struggle to restore our rights to land and culture.
It was a pleasing act of respect that the Parliament House art team were sensitive to his passing, and offered to remove the painting.
I chose to remove the label with his name on it, and keep the painting instead.
Native title rights, as we know, are the recognition in Australian common law, of the customary law and practice of the First Nations people of Australia.
Those rights have been subsequently recognised and reframed through Australian legislation and the interpretations of the Courts. And that goes to this very complicated question of the co-existence of our legal systems and our political systems.
It was an act of honour when the High Court, in the Mabo decision, restored a partial sense of equality in the common law by respecting and recognising our common law Native Title rights.
It follows that Native Title laws cannot be changed, be extinguished, or be limited at the whim of Governments, or as part of any day to day political agenda.
They did not give us the native title, so it is not their right to do what they wish to it from time to time.
There is no honour in that approach.
As both a native title holder and a Parliamentarian, this is the view I take.
This is where I stand.
I also understand that this might not be the accepted stance of most lawyers and politicians.
Common law rights in native title do not exist as a gift of the Parliament, nor as an act of largesse by the Government of the day.
They are held exclusively by First Nations peoples.
However, I recognise that Parliament has the authority to do, more or less, what it wants through the legal process.
At present the Parliament (as in the party with the numbers forming the Government) can do so without bothering to even consult or seek the advice of First Nations peoples.
Without any legislative or constitutional voice, it is an open playing field.
The Parliament can legislate which aspects of common law native title rights you can enjoy.
It does not require consent from the First Nations peoples.
The courts can then interpret whether the Parliament has validly enacted that legislation into Australian law.
There may be some moral and political consequences for Governments that legislate without consideration of the views of native title holders.
When native title holders enter into negotiation processes as set down in the Native Title legislation they too often become enmeshed and complicit in the process of dispossession.
The Minister has mentioned, that twelve percent of the land is held as exclusive native title, under a regime where it is capable and required often to extinguish. So even that twelve percent is at risk, in some of these processes.
There should be now a moratorium to stop the further extinguishment of native title rights and interests.
In this way Parliaments assert and reassert their sovereignty over First Nations.
These rights must be understood as the common law rights of the First Nations peoples; not the rights of the common man in the British tradition.
They require more than a business as usual approach in the legislative process.
Amending any such legislation should always require, as Anthony Watson has said, the “free, prior and informed consent” of native title holders and First Nations peoples, who are entitled to enjoy and hold such rights.
These rights can be however changed or modified by Parliaments.
In Australia we have never had the protection of any Treaty or Constitutional entrenchment that could be called upon to safeguard the native title rights of First Nations peoples.
Last year The Australian Government released its Options Paper for Reforms to the Native Title Act 1993.
It was launched by Ministers Scullion and Brandis at the end of November 2017 and submissions were required at the end of January 2018.
This ridiculously short period was highly, in my view, disrespectful of those native title holders living across our lands here in Northern Australia.
In remote Northern Australia this period of time, at the peak of the Wet, is less than ideal for consultation with native title holders.
It is a particularly important time for ceremonial activities.
I was pleased though that, at least in part due to my urging, the consultation period was extended by a month. That month being the shortest month of the year.
Many of the issues raised in the Government Options paper went to significant issues of procedure, functioning and efficiency of the Native Title Act, with potential consequences known and unknown for native title holders.
None of it should be taken for granted.
We look forward to the report, and the detail of the legislation when it arrives.
We are now waiting for the Government to give us the information in relation to the consultations they have undertaken.
This will be the next instalment in the continuing cycle of amendments to the Native Title Act, (which I am told is one of the most amended pieces of Commonwealth legislation on the statute books).
Since the days in 1996 of Howard and Fischer’s “10-point plan and bucket loads of extinguishment”, respect for native title rights on the Australian legal landscape has steadily diminished.
Since the original passage of the Act, under the Keating Labor Government, the myth of terra nullius has been restored to life.
It now has dominance over the existence of native title.
The purpose of the Act, and I quote, is “to recognise and protect native title”, has been overtaken by a seeming new intent, “to eradicate the obstacles of native title”.
And those of you who have heard the Minister say he would be interested to have discussions with you about how to make funds available if you hold native title, which is running on a parallel plane to what he is doing in other parts of the country which is very important.
The fungibility question of native title and the preservation of your native title has to also be part of those discussions.
How you sustain it, while you leverage it.
I argue that it is now necessary to shift the point of balance of honour in the Native Title Act more towards the rights, interests, needs and enjoyment of the First Nations peoples.
Hopefully, to also better align the legislation to the vision of Eddie Koiki Mabo as it was recognised by the High Court of Australia.
One of the key concerns that we need to take special note of is this concept of Extinguishment, which underpins so many good intentions around agreement-making.
Extinguishment may be a simple western legal concept, but it is always and everywhere a deeply troubling issue for native title holders.
Ø It is a solemn and weighty burden, to make decisions where you have to extinguish native title.
It may be policies of Government’s that need to be better enlightened in relation to this.
Once native Title has been extinguished, it is gone forever under the western law.
If the title goes, where do the people go?
Terra nullius is reinstated.
Our unique native title rights are eliminated.
There has been agreements where some form of freehold is offered in exchange for native title.
There is of course the capacity in the act to suppress the native title. But if there is no policy of Government, then it’s not going to happen.
There should be no options for Government’s in relation to that matter if they are genuine about giving honour to First Nations peoples.
The land may have to be leveraged for the financial sustainability necessary to hold on to it and benefit from it; otherwise the land may be lost and we revert to requiring the largesse of Governments.
Unless of course, we can build up the capital basis of to such an extent that we no longer require Governments.
I have proposed that the legislation being drafted by the Australian Government should not neglect this problem.
So don’t be afraid to put these foundational, seminal principles back though to Government around the reforms that are required. Don’t just tinker around the edges of procedure or process.
If it does not do anything about extinguishment then the legislation may continue to entrench inequality and injustice and lead to the loss of more and more native title land.
And it’s already down to twelve percent as you heard from the Minister’s mouth!
In my view, any Indigenous Land Use Agreement, under the terms of the Native Title Act for the use of Native Title lands, should be made without necessitating the extinguishment of native title rights.
Ø If the price of agreement is extinguishment, then that price is far too high.
Ø The moral authority and ancient roots of Native Title should be treated with honour and respect.
Our colonial history here in Western Australia was, more often than not bitter and violent, as it was in many other places.
The line of the frontier moved forward incrementally, superimposing the law of the Western crown, over and above the law of the First Nations people’s.
As families, lives, languages and land were taken, Native Title to that land was usually extinguished.
Under the next Labor government we’ll be working to ensure agreement-making and truth-telling acknowledges this kind of history and ensures that reconciliation can emerge from that history.
The “extinguishment as a first resort” mentality disrupts the process of agreement-making.
It becomes a challenge to align the needs and desires of powerful third parties, like miners, with the rightful position of First Nations peoples.
Agreements need to be made without the price tag of extinguishment of your native title:
Ø without signing off on the permanent and total loss of our cultural and spiritual entitlements;
Ø without denying our survival as a People; and
Ø our ongoing rights to our native title rights and lands.
First Nations peoples are not on equal terms with the Government and are not on equal terms with any Government until substantial changes be made.
Those that lobby against us and our unique identity, often have a far greater access than those of you who seek to influence things.
On the playing field of law making, the rules are set against us.
This denies our rights as First Nations Peoples and works against us maintaining our status as the world’s longest living surviving culture on this Earth.
Down on the Burrup peninsula, we can still see today the petroglyph carvings of the first face depicted in the history of human art.
Before that unknown artist set to work, no human had yet depicted a human face.
This globally significant heritage brings honour to us as a people, and should bring honour to our nation in the act of recognition and respecting our heritage.
Not to honour that heritage denies our rights as Indigenous People, as recognised by Australia under the United Nations Declaration on the Rights of Indigenous Peoples.
First Nations peoples’ interests in land come from our inherited connection to specific country, connection to family and community from the same country, traditions and cultural beliefs.
This is something all Australians should rejoice in rather than have Government seek to extinguish this essence.
Our native title doesn’t inherently have the character of fungibility. We can’t leverage it in a manner that preserves it in the western sense.
It is not tradable like other commodities.
Native title is collective and inalienable; it cannot be sold or transferred under state and territory conveyancing legislation.
Its existence seems to be an affront to western land tenure thinking – what has to happen is a change to the way western thinking and Australian law deals with this truth rather than seek to extinguish it.
In Australia, our sorry experience has been that the Crown has too often acted dishonourably in its dealings with First Nations Peoples.
In our history of native title in Australia, the Crown has rarely acted with honour.
Ø Just as our constitutional history does not honour the rights and obligations of First Nations people.
Ø Just as our criminal and justice systems do not respect and recognise the laws, customs and traditions of First Peoples.
Reforming the Native Title Act can address that point and return a semblance of honour to the Crown.
Reforming the Native Title Act to give enhanced recognition to the inherent and ongoing rights of First Nations peoples is a worthy endeavour for any Government.
Should this Government seek to go down this path, I will certainly lend my weight to the effort.
And any future Labor Government will work to do so.
I recall sitting through protracted court procedures in my own native title case here in Broome, and witnessing the cross examination of our people, most unfamiliar with courtroom tactics and proceedings and lawyers.
While they were constantly challenged by lawyers about their credibility:
Ø they adhered to their Laws and customs and their protocols;
Ø they established that they had withstood the processes of colonisation;
Ø they withstood the policies to try and get rid of us
Ø and survived the dominance of Government policies of assimilation and forced social and cultural change. And that we were here, prior to the assertion that the colony of Western Australia.
The Crown should be on trial for how it has tried to eradicate and destabilise us.
These are not simple matters, they are serious matters that we heard earlier about compensation claims, or people’s desire for compensation in relation to these matters.
The legacy of Native Title, maintained by our ancestors, fought for by the leaders who came before and now being cultivated by our present young leaders, has tangible results.
Before the Mabo decision, the Native Title Act and the Federal Court determination, our Yawuru people did not have a seat at the table where development decisions were made here in Broome.
Since those epochal changes, Yawuru people have been able to engage as partners in planning the future of our country.
There have been direct and indirect benefits that have flowed as a result to our people.
It is a significant fact that Yawuru people are now the largest private land holders in Broome.
It is a significant fact we are engaged with the Council and the Government on improving the services available to all the citizens of Broome.
It is a significant fact that our community organisations here in Broome are actively engaged in aged care, in social housing, in home ownership, in the future of this community.
Our native title rights here in this community are grounded in Bugarrigarra.
In our own Yawuru language of the country here in Broome, three key concepts guide the vision of the Yawuru people, and Native Title Holders Aboriginal Corporation.
They shape our ways of knowing and understanding, and our collective approach to native Title. They are:
Ø Mabu ngarrungu(nil): a strong community
Ø Mabu buru: a strong place, a good country.
Ø Mabu liyan: a healthy spirit, good feelings
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