Dialogue about land justice : papers from the national Native Title Conference

359 Pages·2010·4.838 MB·English

by  Lisa Strelein

Edited by Lisa Strelein
First published in 2010
by Aboriginal Studies Press
© Lisa Strelein in the collection, 2010
© in individual chapters is held by the contributors 2010
All rights reserved. No part of this book may be reproduced or
transmitted in any form or by any means, electronic or mechanical,
including photocopying, recording or by any information storage
and retrieval system, without prior permission in writing from
the publisher. The Australian Copyright Act 1968 (the Act) allows a
maximum of one chapter or 10 per cent of this book, whichever
is the greater, to be photocopied by any educational institution for
its education purposes provided that the educational institution
(or body that administers it) has given a remuneration notice to
Copyright Agency Limited (CAL) under the Act.
Aboriginal Studies Press
is the publishing arm of the
Australian Institute of Aboriginal
and Torres Strait Islander Studies.
GPO Box 553, Canberra, ACT 2601
Phone: [phone]
Fax: [phone]
Email: [email protected]
Web: www.aiatsis.gov.au/asp/about.html
National Library of Australia Cataloguing-In-Publication data:
Title: Dialogue about land justice : papers from the National
Native Title conference / editor, Lisa Strelein.
ISBN: 9780855757144 (pbk.)
ISBN: 978 0 85575 746 5 (ebook PDF)
ISBN: 978 0 85575 747 2 (epub)
Notes: Bibliography.
Subjects: Native title (Australia) Aboriginal Australians —
Land tenure. Aboriginal Australians — Government relations.
Aboriginal Australians — Politics and government. Aboriginal
Australians — Legal status, laws, etc. Land tenure — Law and
legislation — Australia — History. Australia — Colonization —
History.
Other Authors/Contributors:
Strelein, Lisa.
Dewey Number: 323.119915
Printed in Australia by Ligare Pty Ltd
Cover art: Arrernte coolamon presented to the Indigenous
Women’s Talking Circle by Lhere Artepe representatives, Karen
Liddle and Barb Satour, at the Native Title Conference 2007, Yidinji
Country (Cairns, Qld).
The book has been printed on paper certified by the Programme for
the Endorsement of Forest Certification (PEFC). PEFC is committed
to sustainable forest management through third party forest certification
of responsibly managed forests.
Foreword
In the years since Eddie’s passing, I have attended quite a few of the
Native Title Conferences around the country. Over the past ten years,
AIATSIS has built on Eddie’s work, bringing together more people
every year to discuss progress, challenges and new ideas in native title.
We come to the conference and see old friends, new allies, and
sometimes it feels like catching up with family. To stand back and see
just how many people move in a field of work that Eddie started is
sometimes overwhelming: the Traditional Owners, people from native
title representative bodies, government and business.
My family and I are proud that so many respected leaders have spoken
with such passion and insight over the past ten years at the annual national
Native Title Conference. These men and women do justice to the legacy
of Eddie’s fight for title to his land, the land of the Mer people.
I am pleased to see the insights and dreams from leaders in all walks
of life brought together in this historic book about native title. I think
Eddie would be proud to see these contributors continue his fight. I
hope it will be a valuable tool to inspire all those who come after us.
Mrs Bonita Mabo
iii

Contents
Foreword iii
Preface vii
Contributors ix
Introduction: The legacy of Mabo’s case 1
1. Mabo Lecture: Asserting our sovereignty 13
Mick Dodson
2. Confessions of a native judge: Reflections on the role of 19
transitional justice in the transformation of indigeneity
Joe Williams
3. Mabo Lecture: Where we’ve come from and where we’re at 33
with the opportunity that is Koiki Mabo’s legacy to Australia
Noel Pearson
4. Native title is property 52
Greg McIntyre
5. A curious history of the Mabo litigation 69
John Basten
6. The role of the High Court and the recognition of native 78
title: Address in honour of Ron Castan QC AM
Robert French
7. Hypothesising social native title 115
David Ritter
8. Symbolism and function: From native title to Indigenous 127
self-government
Lisa Strelein
9. Societies, communities and native title 139
Kingsley Palmer
10. Self-determination and Indigenous nations in the United 159
States: International human rights, federal policy and
Indigenous nationhood
Christine Zuni Cruz
11. Legal personality and native title corporations: The problem 170
of perpetual succession
Marcia Langton and Angus Frith
12. Native title, agreements and the future of Kimberley 183
Aboriginal people
Wayne Bergmann
13. Achieving real outcomes from native title claims: Meeting 198
the challenges head on
Graeme Neate
14. Who’s driving the agenda? 253
Tom Calma
15. Mabo Lecture: A long journey to climb the mountain 267
Les Malezer
16. Mabo Lecture: Addressing the economic exclusion of 287
Indigenous Australians through native title
Aden Ridgeway
Notes 302
Index 336
PreFaCe
Since its inception in 1999, the annual national Native Title Conference
has established itself as the leading Indigenous policy conference in
Australia and as a flagship event for the Native Title Research Unit
(NTRU) and the Australian Institute of Aboriginal and Torres Strait
Islander Studies (AIATSIS). The conference combines key note addresses
and multiple streamed sessions, cultural events, stalls and exhibitions.
A range of speakers is invited each year, representing the fields of law,
anthropology and public policy, both domestically and internationally.
The public program attracts a wide range of native title delegates.
Each year a different native title representative body co-convenes
the Native Title Conference with the NTRU in consultation with the
Traditional Owners of the town or city where the conference is held.
The first day of the program is reserved for native title claimants, native
title holders and their representatives. This closed day and Indigenous
Talking Circles held throughout the program are an important part
of the conference program. These sessions provide an opportunity for
Indigenous delegates to talk among themselves about the impact of the
native title process on their communities and to discuss strategies to
reach their goals for land justice and self-determination.
Three protocols shape the Native Title Conference:
1. recognising Traditional Owners;
2. working with native title representative bodies/native title service
delivery agencies; and
3. maximising the participation of Aboriginal and Torres Strait Islander
people.
These protocols give the Native Title Conference standing as a legitimate
and accessible forum for Indigenous people to have a voice in and lead
national debates, think through ideas and share experiences from across
the country. The high participation rate of native title representative
bodies — and the many native title claimants and holders who have given
vii
presentations and engaged in discussion — provides a unique opportunity
for the discussion of common concerns and the development of valuable
networks. This also makes the event attractive to other stakeholders,
who gain insight and access to Indigenous native title networks through
their participation in the conference. All of the relevant state and
Commonwealth ministers have addressed the conference, alongside the
federal judiciary and industry leaders.
Following the inaugural meeting in Melbourne, the conference has
now been held in Townsville, Geraldton, Alice Springs, Adelaide, Coffs
Harbour, Darwin, Cairns and Perth, arriving back in Melbourne for the
tenth anniversary in 2009.
A significant feature of the conference program is the annual Mabo
Lecture. The lecture is a dedication to the late Koiki (Eddie) Mabo and
his historical legacy of the Mabo case that established native title under
Australian law. The lecture aims to provide a contemporary commentary
on native title issues in the context of Indigenous peoples’ struggle for
recognition and control over their country and their lives.
It is hoped that this volume goes some way to capturing the spirit of
dialogue and accumulated wisdom of the conference, and that it marks
its importance as a national forum to move native title forward in the
pursuit of Indigenous land justice.
Lisa Strelein
viii
Contributors
Wayne Bergmann has been Executive Director of the Kimberley Land
Council since 2001. Prior to this he worked in Chambers and private
practice in Perth. Wayne has Nykina, Nyul Nyul, Greek and Sri Lankan
ancestry, and grew up near Derby in the Kimberly region of Australia.
John Basten is a Judge of the Court of Appeal, Supreme Court of
New South Wales. Before his appointment to this position, he argued
many leading cases on land rights and the Native Title Act 1993. Justice
Basten advised the National Indigenous Working Group in 1997–98 and
participated in negotiations with the government over what became the
Native Title Amendment Act 1998.
Tom Calma held the positions of Aboriginal and Torres Strait Islander
Social Justice Commissioner between July 2004 and January 2010 and
Race Discrimination Commissioner between July 2004 and July 2009.
Tom is an Aboriginal elder from the Kungarakan tribal group and a
member of the Iwaidja tribal group. From 1995 to 2002 Tom worked
as a senior Australian diplomat in India and Vietnam. During his time in
India, he also oversaw the management of the Australian international
education offices in Pakistan, Nepal and Sri Lanka.
Mick Dodson is the Chair of the Australian Institute of Aboriginal
and Torres Strait Islander Studies, Director of the National Centre for
Indigenous Studies at the Australian National University, and 2009
Australian of the Year. Mick was Australia’s first Aboriginal and Torres
Strait Islander Social Justice Commissioner, serving between 1993 and
1998, and is presently a member of the United Nations Permanent
Forum on Indigenous Issues. Mick is a member of the Yawuru peoples,
the traditional Aboriginal owners of land and waters in the Broome area
of the southern Kimberley region of Western Australia.
ix