Backyards under threat?

By Legal Eagle

My eagle eyes have spotted that Wilcox J of the Federal Court has handed down a novel interpretation of native title in Bennell v State of Western Australia [2006] FCA 1243.

So, are our backyards under threat? NO. No no no no. How many times do I have to say it. I’ll say it one more time, just for emphasis. In bold and capitals: NO.

Is there going to be a stupid scaremongering reaction from some quarters? Do I even have to answer that question?

This is a sure fire way to bring out the angry barking moonbat in me. It makes me so mad: the average person has no idea about native title and thus is liable to be scared by stupid statements by politicians who should know better.

Justice Wilcox stresses the following in the statement accompanying his judgment:

It is perhaps important for me to emphasise that a Determination of Native Title is neither the pot of gold for the indigenous claimants nor the disaster for the remainder of the community that is sometimes painted. A Native Title Determination does not affect freehold land or most leasehold land; it cannot take away peoples’ back yards. The vast majority of private landholders in the Perth region will be unaffected by this case.

Nevertheless, there has been a “hysterical” reaction by State and Federal politicians. Apparently, the Western Australian government has indicated that it will appeal the decision.

Freehold title (the normal title held by most of us) extinguishes native title. So does the average leasehold title; because they both grant exclusive possession (ie, possession of the land exclusive of all other rights). For goodness sake, a sneeze probably extinguishes it. Native title is a very limited proprietary right; it is so weak a right that I would argue that it is questionable if it can be classed as proprietary right at all. The whole point of a proprietary right is that you can enforce it against third parties and alienate it: but not native title.

Native title supposedly consists of a “bundle of rights”, including fishing, hunting, rights to hold ceremonies and etc. The whole problem is that settler society tried its best to break indigenous connections with the land, but to establish native title we now ask indigenous people to establish an unbroken continuing connection. How can one easily establish an unbroken connection when you were forcibly moved to the other side of the country or prevented from speaking your language or practising traditional ceremonies? I am glad that Justice Wilcox took a more pragmatic approach in respect of the Noongar.

As the editorial in The Australian today argues, it would be a pity if litigation were to continue. As it presently stands, the only people to benefit from native title are the lawyers. Indigenous people spend thousands trying to establish title; State and Territories governments spend thousands trying to disprove title, and in the end everyone loses. I would argue that previous determinations in relation to native title have made it practically worthless to indigenous people. Mabo has become a victory for indigenous people in name only: practically, it offers them nothing. At least under Justice Wilcox’s formulation, native title is more than a dead letter.

Personally, however, I think that it would be better if we forgot the proving of native title by litigation and attempted to work out some kind of pragmatic, practical accord with indigenous people and others who have an interest in the land (such as Cape York Peninsula Land Use Heads of Agreement signed in Cairns on 5 February 1996). Because of its adversarial nature, litigation leads parties to focus on their differences rather than their similarities. I think interested parties would benefit much more from coming to some kind of compromise or agreement. Unfortunately, this doesn’t seem to be on the present agenda for any government (State or Federal): there’s just more hysterical knee-jerk reactions. I hope that someone thinks a little more deeply and strategically about the issue soon.


  1. KY
    Posted September 21, 2006 at 6:11 pm | Permalink

    In fact I would go so far as to say that one should forget about Native Title. The mostly useless rights one gets from such title is more than counterbalanced by the hysteria and vitriol heaped on Aborigines as a result.

    Much better to set up funds assisting Aborigines to buy freehold rights to land and then they can fish, hunt, buy, sell, do whatever they want without interference.

  2. Legal Eagle
    Posted September 21, 2006 at 6:13 pm | Permalink

    Hear hear, KY. I have never understood quite why the whole native title thing arouses so much passion – I think it is because it concerns property and that it is scary and unknown…

  3. sarix
    Posted July 5, 2007 at 4:31 pm | Permalink

    Native title should be abolished in favour of a fund to establish freeholder titles?

    Native title may be weak but it acknowledges – as you say – a different usage of the land and a different appreciation of it.

    A fund to buy freehold title for indigenous people sets up a) the nastiest local Council squabble over plots of land that you can imagine, albeit on a national level; b) lends itself to even more howls of ‘handouts’ and c) signifies that the way Aboriginal people wish to be acknowledged in relation to the land is the same as the rest of us. Ie, this battleaxe block is mine, for my damn subdivision.

    Some may wish this kind of ownership, but what about those who want ownership to mean an acknowledgement of their relationship with the land and the traditions/traditional links they wish to maintain?

    I think native title needs work but you shouldn’t just abandon the idea. Like the Howard government approach: it ain’t working, send in the troops, raize the humpies to the ground and build some civilised apartment blocks. Australians give up too easily.

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