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Welcome to BRR Media. Today I’m joined by Robyn Glindemann, who’s a Special Counsel
in the Environment and Planning team, specialising in Native Title, here at Allens in Perth.
Robyn it’s been 20 years since the basic principles of Native Title were handed down
in the High Court in the Mabo decision. Since that time what are the key developments that
have occurred in Native Title there?
Well there’s been quite a few, and probably a half a dozen really key ones. The first
one was the Whick decision a few years later which really changed what we understood about
past releases and how they affected Native Title. And the Whick decision was responsible
for the huge raft of changes that came in, in 1998, the Native Title Act, it really changed
the way the Native Title Act worked. We also had the FEJO decision involving the Larrakia
people in the Northern Territory and that confirmed that extinguishment of Native Title
really meant extinguishment forever and that was a very important step forward for us.
Also in the Northern Territory the Croker Island decision, developed our understanding
of how Native Title worked off shore, which the Mabo decision really didn’t do. And
then also the Yorta Yorta decision in Victoria was really the benchmark for describing or
prescribing how Native Title claimants had to prove their claim and what they needed
to bring to court to show the connection required to land, which was one of the original principles
in the Mabo decision.
How do Australia’s Native Title laws compare to other jurisdictions such as Canada and
New Zealand?
There’s a lot of similarities actually between the jurisdictions which people don’t often
recognise, but probably the main difference is the fact that in Canada you have Constitutional
recognition of Aboriginal and treaty rights. It’s 30 years this year since the Charter
of Rights and Freedoms came into effect in Canada, and section 35 of the Charter protects
and acknowledges Aboriginal rights and treaty rights in that country, so that’s a very
important difference. New Zealand of course has the treaty of Waitangi and that really
frames the relationship between the Maori people and the non-Maori people in New Zealand.
And each jurisdiction also reflects that the cultural differences, there are differences
innate between Native Title in Australia, between the Native Title rights if you like
of the Indian people, the first nations people in Canada, and again in New Zealand. So those
differences have to be reflected in the laws that we have. Canada in some respects is very
similar to Australia, particularly Western Canada. Western Canada has no real treaties,
so in many respects Aboriginal rights there are the common law rights that are recognised
by the court which is of course what we have here in Australia. And so there is a great
deal of similarity and in fact the courts in both Western Canada, particularly British
Columbia and Australia have referenced each other in decisions on Aboriginal law because
our principles are the same and because of course we all go back to the British crown.
So those are the main differences and the other difference to in Canada is the Indian
Act, which is a federal piece of legislation that came into effect in the early 20th century
and that has also framed the relationship between indigenous people and non-indigenous
people in Canada, and we don’t have an equivalent to that here in Australia. But that said the
Native Title Act here is purpose built for the situation we have in Australia, but also
delivers results. It’s not without its problems, but no jurisdiction is perfect in how it manages
its relationship with indigenous people. So each jurisdiction has its own advantages and
disadvantages.
Which sector would you say of the Australian economy has been most affected by Native Title?
And how has that sector responded to that?
Well it’s a tough question, I think really every sector of the Australian economy has
been affected by Native Title, it’s just a question of degree and what that affect
has looked like. It’s probably fair to say that the hard rock mining industry has been
the most visible in both responding to Native Title and also addressing it as part of project
development. And certainly many of the examples, particularly in relation to agreement making,
voluntary agreement making with Native Title claimant groups, a lot of that work has been
done in the hard rock mining sector, and that’s been the way to respond to the challenges
that Native Title presents. The changes to the Native Title Act in 1998, which introduced
the concept of the Indigenous Land Use Agreement, were really key in facilitating the relationship
and the response particularly of the mining industry. In Queensland for example there
are over 600 indigenous land use agreements, that’s in all sectors of the economy, but
there are a lot of significant agreements in the mining sector and of course here in
WA you’ve got the response by Rio Tinto and BHP Billiton, as well as a lot of other
mining companies in the agreements basin and that’s really been a great step forward.
Robyn, I understand there are a lot of Native Title claims that are yet to be resolved,
why has it taken so long to resolve these claims? And what can be done to reduce the
backlog?
Well we have to remember that solving Native Title – resolving Native Title claims is
a very complex process, so we’re not dealing with straight forward litigation, it’s a
very complex litigation process that we’re asking parties, both Native Title claimants,
state governments, the Federal Government and all of the stakeholders involved to participate
in; and so that takes time and we need to be patient. There are still lots of Native
Title claims that need to be resolved, but we have to remember firstly that we’re asking
people to go back over, over 100 years of history and to sift through those records
assuming they exist, is not – it’s not electronically searchable, so it takes time
to physically turn the pages and find the information that the court requires Native
Title claimants to find. Secondly we’re dealing with lots of stakeholders and they
all need to be heard, and that takes time for them to present their cases to the court
or in a mediation context. And thirdly you’ve got, you need experts to be able to sift through
the information, and to present it in a manner that the court can digest. And there are only
so many archaeologists and anthropologists around who have the experience, the skills,
and the trust of the Native Title groups to be able to take their claim forward. So with
all of those factors it’s going to take time, and to solve that problem the main question
– or the main issue is patience, we just need to be patient. And I compare it to the
Nisca people in British Columbia Canada, it took them 113 years to have their claim to
their land resolved, so a few decades in Australia is really not that long.
Robyn thank you.
Thank you very much it’s a pleasure.