This article first appeared in The Australian, 22 September 2006

Native Title: a Claimant's Perspective

Wesley Aird

The legal and social landscape changed forever when the High Court passed judgment in the Mabo case. In handing down the decision, Justice Gerard Brennan said that Australian law should not be frozen in an era of racial discrimination. But that was ages ago.

This week's Federal Court native title decision is also a significant win. But the real consequence, and perhaps what's really upsetting people, is that a group of Aboriginal people has demonstrated tradition and culture can survive in an urban setting. The decision is a long overdue win for the underdogs and shows federal legislation can help overcome the states' bullying of Aborigines. The Noongar people can rightly be proud of their place in modern Australian history, which of course is only a late chapter in their history.

Native title alone was never going to deliver indigenous Australians from the economic wilderness. Forget the myths and fear mongering that native title will steal people's backyards. This week Federal Court judge Murray Wilcox made it plain the decision is not a pot of gold for the indigenous claimants.

However, the decision does have the potential to help overcome indigenous disadvantage. After decades of mistreatment and welfare, the recognition provided by the native title process can give indigenous people a legislative right to be consulted, and sometimes that's all people want, even if there is no certainty about what comes out of the discussion.

With the benefit of hindsight, we know the Mabo decision and subsequently the Native Title Act created just as many questions and challenges as answers. The real challenge is not in the finer points of law, land tenure or disputes over connection to country. The real challenge goes to the fundamentals of Australian society. We live in a society that has haves and have-nots. In the main, indigenous Australians are have-nots. But why do state governments begrudge indigenous Australians the chance of a rare victory?

The Noongar people of Western Australia, just like the rest of Australia's indigenous people, are entitled to use every piece of legislation and every legitimate (legal) means they can to improve their economic and social situation. The Native Title Act was intended to right a historic wrong. Across the country, the act is one of the very few remaining prospects of hope for indigenous Australians to achieve procedural recognition and to overcome the states' indifference.

WA Deputy Premier Eric Ripper has indicated his Government does not accept the decision and will appeal. An appeal indicates the Government will protect the already substantial interests of the haves at the expense of the have-nots. Is it not odd that the state's minister with responsibility for native title and delivering recognition of traditional rights to WA's indigenous people is the one who signals his intent to maintain indigenous people as the disenfranchised have-nots?

With friends like Ripper, who needs enemies?

Would it be considered hypocritical if the WA Government poured millions into a legal appeal against the Noongar claim and then cut spending on indigenous programs because it was short on funds? Sillier things have happened. For the cost of the legal fees in the Miriuwung-Gajerrong native title claims, you could have bought every cattle property in the Kimberley. Sometimes, politicians and lawyers lose sight of the humans. In Queensland the re-elected Beattie Government doesn't even have an indigenous affairs portfolio. Out of sight, out of mind: cheap and simple.

Only in a technical sense are we past the era of native title being considered a land grab. Misinformation persists even though the reality is that the haves are not going to lose their backyards. Development is not going to be stopped. Therefore, when a state government actively works against a legitimate native title claim, it should be seen for what it is: self-interest that maintains indigenous disadvantage.

As for the other capitals and cities, they are not going to be hit by native title claims. The Howard Government's version of the Native Title Act is accompanied by various state native title regimes. As a result, claimant groups must provide evidence of an incredible standard to satisfy the court and to overcome the enormous legal resources the states invest against indigenous people in their efforts to protect the interests of voters, business and investors.

Governments are charged with responsibility to look after all citizens, and in particular those with the greatest needs. It is difficult to understand the institutional resentment when Australia's most oppressed and underprivileged people attempt to improve their lot through legitimate means.