Jamie Lowe | Mabo Lecture

AIATSIS Summit 2024, Naarm

Ngatta.

I acknowledge the Wurundjeri Woi Wurrung people, the Traditional Owners of this land. I pay my respects to their Elders past and present and extend that respect to all First Nations people here today. I also acknowledge the sovereign lands from which you have travelled.

Thank you all for making the time to attend the 2024 AIATSIS Summit. Special thanks to AIATSIS CEO Leonard Hill for doing me the great honour of inviting me to deliver the 2024 Mabo Lecture. I am deeply honoured to stand before you today.

I want to extend my gratitude to the Mabo family, especially Gail and Kaleb, for their ongoing dedication to Eddie Mabo’s legacy. I also thank AIATSIS, Chair Jodie Sizer, and our co-hosts: the Victorian First Peoples Assembly, First Nations Legal and Research Services, and the National Native Title Council.

Let us also pay homage to the Mabo judgment we celebrate today. In 1982, Eddie Koiki Mabo, James Rice, and David Passi, together with Bonita Mabo, Sam Passi, and Celuia Mapo Salee, commenced what we now call the Mabo Litigation. In 1992, after a decade-long fight, the High Court overturned the doctrine of terra nullius and recognized the rights of Aboriginal and Torres Strait Islander People to our land and waters.

That judgment has been followed by some 500 positive determinations of native title. While not expressly recognizing our sovereignty, the courts do recognize our traditional societies, our systems of governance, our laws and customs, and the rights we have in our lands. THAT sounds like sovereignty to me.

The Mabo decision was a monumental step in acknowledging our connection to the land—a connection that dates back a millenia. This connection is not just physical but spiritual, cultural, and integral to our identity. For centuries, this bond was dismissed and ignored under the false doctrine of terra nullius, which claimed that Australia was “nobody’s land” prior to European settlement. The Mabo case dismantled this lie and recognized what we have always known: this land is our home, and our relationship with it is profound and unbreakable.

2024 is a significant year. It is the 30th anniversary of the Native Title Act coming into force on January 1, 1994. Because of this, it is also the 30th anniversary of the creation of the Prescribed Body Corporate (PBC), the corporate vehicle holding native title rights and interests for Traditional Owner groups who have had their rights recognized around the country.

“Prescribed Body Corporate” is a very legalistic term, but these entities have become critically important in nation-building for Traditional Owners of this Country and as local Voices for our people.

PBCs, along with other Traditional Owner Corporations recognized as holding rights in land for their People, and regional organizations, such as the Land Councils in Western Australia, Northern Territory, Queensland, South Australia, and Tasmania, are Representative Organisations under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

And, of course, we have the First Peoples Assembly, which is Traditional Owner based and negotiating treaty in Victoria.

There is a recognized Traditional Owner Representative Organisation of some kind for 80% of this continent.

With 60% of land in Australia covered by a form of Indigenous land tenure, and 40% of that is covered by native title, governed by over 260 PBCs.

The unsuccessful referendum last year was seeking to establish an Indigenous Voice to government. Many of our people were devastated by this loss. However, it is important to remember that we already have that Voice – we have it through our PBCs and other Traditional Owner Representative Organisations.

These Representative Organisations are our vehicles for self-determination and our Voices, which are many and strong. They are the both the blueprint and building blocks for a national voice moving forward.

Mabo is part of a long history of struggle and activism by our people for recognition of our rights.

I am a Gunditjmara Djabwurrung man from the Maar Nation of South Western Victoria. We have a long history of resistance and fighting for self-determination.

Before invasion, there were 200 landholding groups belonging to the Maar Nation in South Western Victoria. Like others across the country, our population was decimated by disease, child theft, and massacres, and the government pushed the remaining Maar People onto two missions: the Lake Condah mission and Framlingham Mission. Although these missions sought to assimilate us, they also became our home.

Our old people always fought to remain on our land. In the 1890s, the government tried to shut Framingham mission and move us to Lake Condah, but we refused. In 1916, the government defunded Fram and tried to move us all to Gippsland, but we would not budge. Finally, in the 1970s, after years of fighting, we were granted ownership of some parts of the original mission.

In the 1980s, after blockading the road to the Framlingham Forest, we were handed back ownership of that forest.

My father was born in Gippsland and raised on Framlingham Mission. When he died, he was living on Country with me in Gariwerd but taken back to Framlingham to be laid to rest, where we dug the grave in accordance with our traditions, into the hard earth by hand. This act of returning to our land for such a significant ceremony is the deep connection we have to our Country. Despite the hardships, theft and displacement from colonisation, our cultural practices and connection to our land have endured.

As recognized by the Federal Court, in both the Gunditjmara and the Eastern Maar determinations, moving to Lake Condah and Framlingham missions did not destroy our laws and customs, or our social and political structures. Instead, the court has recognized our survival with the Eastern Maar and Gunditjmara now the two distinct societies of the Maar Nation. Together we govern the same territory as the original 200 landholding groups, with a clear division between our lands. Today those two societies of the Maar Nation are represented by two distinct organizations: the Gunditj Mirring Traditional Owners Aboriginal Corporation and the Eastern Maar Aboriginal Corporation. We are the same mob but different.

I am a member and director of the Eastern Maar Aboriginal Corporation. I had been a member for about 5 years when my Uncle Rob Lowe called to ask me to take his place as our family representative director. I remember the call distinctly. It was very humbling and a great honour.

It was a very steep learning curve, and shortly after I became Chair and then later the CEO. It was through that process that I came to understand the potential of the PBC and what it can mean for our People.

It is a governance structure that, while imperfect, allows us to articulate our aspirations and determine our future.

This is the political significance of the establishment of a PBC. While it is a white man’s construct, when properly set up, a PBC represents a Society or a Nation. When a person or body outside the Nation wants to do something that will affect our rights in land, it is the Nation they need to engage with, not the individuals who make it up.

PBCs serve as the interface between Traditional Owners and everyone else, ensuring that our voices are heard, and our rights are respected. They play a crucial role in negotiations, land management, cultural heritage protection and that is just the tip of the iceberg. By engaging with PBCs, others acknowledge our sovereignty and our right to manage our affairs according to our customs and traditions.

The UN Declaration on the Rights of Indigenous Peoples identifies both individual and the collective rights of Indigenous peoples. Articles 6 and 7 deal with individual rights, ensuring that every Indigenous individual has the right to a nationality and to life, physical and mental integrity, liberty, and security of person. The collective rights of Indigenous Peoples are set out in sections like Articles 23, 24, 26, 31, and 32. The rights to self-determination and free prior and informed consent are rights that are expressed as collective, not individual rights.

Article 4 states that our right to self-determination provides us with the rights to autonomy or self-government in our internal and local affairs. Article 18 speaks to the Representative Organisation, such as the PBC, providing that we have the right to participate in decision-making in matters which would affect our rights, through representatives chosen by us in accordance with our own procedures, as well as to maintain and develop our own Indigenous decision-making institutions.

It is through the PBC, and other similar Traditional Owner Representative Organisations, that we make the rights under UNDRIP—the rights of Free, Prior and Informed Consent (FPIC) and self-determination—a working reality and not just a nice theory.

However, challenges remain:

Funding is critical to the success of any of these representative organisations. Of the 260 PBCs, around 180 of them are classified as “small”. These small PBCs often do not have sufficient funds to employ even a single staff member.

Ever since the establishment of PBCs, they have been caught in a ‘federation black hole’ where state governments have not funded them because they are created by Commonwealth statute, and the Commonwealth sees them as part of the State led “land management” processes. Our PBCs have been chronically underfunded for 30 years as Governments refuse to properly invest in our communities.

UNDRIP Article 4 speaks to the need to provide funding for our organisations. Reflecting this, the Parliamentary Inquiry into the Juukan Gorge desecration recommended that the Australian Government establish an independent fund to administer funding for PBCs under the Native Title Act 1993. Revenue for this fund should come from all Australian governments and proponents dealing with PBCs. The Government Response to the Inquiry’s recommendation was that they “Agreed in Principle” but we are yet to see this implemented.

In Victoria, the issue of funding for the Registered Aboriginal Parties (RAPs) under the Victorian heritage act was the subject of a Parliamentary Inquiry. RAPs are recognized as the representative organisations of Traditional Owners for their Country by the State government. Victorian RAPs now receive an annual base funding of half a million dollars. With this foundation, the RAPs have gone on to become strong players in their regional economies. The smallest of the eleven Victorian RAPs has a turnover of over $7 million per annum, much of which comes from trading activities, and it employs dozens of Traditional Owners and other regional community members.

This demonstrates that with the right policy settings and even a basic funding investment, PBCs can thrive and drive not only self-determination but also regional economic development.

Investing in PBCs does not just benefit the PBC and native title holders – there are flow on economic benefits for the community, region and all of Australia, particularly in the clean energy sector as we move towards a Net Zero Australia.

The second challenge is the distortion of our rights. What has always been a problem with governments and mining companies, and now, what we are seeing, with environmental NGOs, is the splintering of our people against one another while colonizing the language of the UDRIP.

These bodies will say they are seeking to uphold “free prior and informed consent” and “self-determination” when engaging with us, while actively avoiding dealing with our Representative Organisations and instead, dealing with splinter groups or individuals.

These divisive practices create divisions or worsen existing divisions within our groups, undermining the credibility of our people and the Representative Organisations we create to represent ourselves. There will always be dissenting voices. Governance systems, black or white, never completely agree with each other. Societies and Nations always have differing views because this is how group decision-making works. Not everyone is going to be happy. However, in accordance with UNDRIP we have the rights to self-determination and to self-government, these matters are for us to resolve. They are not for others to pick away at.

We can achieve true self-determination by leveraging our existing Traditional Owner organizations. Governments and proponents must engage with these organizations for all land use decisions. This engagement needs to be built into legislation and policy, and adequately resourced.

PBCs are at the centre of many new policy initiatives and interact with over 35 pieces of Commonwealth legislation, depending on where your PBC is located. This is just Commonwealth legislation – then you have all of the state laws and local planning. Then all of the policies and programs around these laws. All of this with almost no investment by the Australian Governments.

To move forward, we must advocate for comprehensive policy changes that recognize the authority of PBCs and other Traditional Owner organizations. This includes:

Legislative Reforms: Ensuring that our rights are enshrined in law and that PBCs are recognized as legitimate decision-making bodies.

Investing in PBCs: Providing funding and resources to PBCs to build their capacity for effective governance and management.

Partnerships: Fostering partnerships between PBCs, governments, and private entities to facilitate sustainable development and cultural preservation.

Agreements: Agreement making that is equitable for our communities and adheres to FPIC.

Reflecting on our journey, it is clear we have come a long way since the Mabo decision. However, the path to true self-determination is ongoing. Each generation builds on the legacy of those who came before, and it is our responsibility to continue this work for future generations.

The resilience and strength of our communities are evident in our continued fight for our rights and recognition. Despite the challenges, we have achieved significant milestones. Our task now is to build on these achievements together, making sure that our voices are heard, and our rights are upheld.

Achieving these goals is realistic and essential for our future. Governments already engage with PBCs and Traditional Owner Representative Organisations.

This engagement must be extended and coordinated across all land management decisions. By doing so, we can honour Eddie Mabo’s legacy and move towards a self-determining future for all our nations.

As we gather here today, let us reaffirm our commitment to this journey. Let us honour the legacy of Eddie Mabo and all those who have fought for our rights. Let us work together to build a future where our children and grandchildren can live in dignity with economic prosperity and where their rights respected and their cultures thriving.

Thank you.