Article by Michael Pelly for the Australian Financial Review

Two of the lawyers behind the landmark claim by land rights activist Eddie Mabo say native title has not lived up to its potential and that an “excessively legalistic” system is often to blame.

Greg McIntyre, SC, and Bryan Keon-Cohen, KC, told
The Australian Financial Review they were disappointed by how little impact it has had on the lives of Indigenous people.

“It hasn’t closed the gap,” said Mr McIntyre. “Even in the Pilbara.

“None of them are walking around like sheiks; some have reached a middle-class economic status, but it [native title] hasn’t spread the wealth evenly – even in those communities.”

In their interviews, they also refl ected on the key moments during the hearing inCanberra that shaped
the decision on June 3, 1992, that paved the way for the NativeTitle Act.

Mr McIntyre, who is the current president of the Law Council of Australia, said claims were taking too long, and causing significant division and frustration in communities.

“Mabo took 10 years and a lot of the cases since then have taken longer,” he said.

“The Kalgoorlie claim [by the Maduwongga people] was one of the first lodged [in 1994]. It only wound up [unsuccessfully] last year.

“Twiggy Forrest is still arguing with the Yindjibarndi [which have ancestral lands around the Fortescue River].”

Dr Keon-Cohen, said the “burdensome evidential hurdles” under the Native Title Act had been exacerbated by High Court decisions since 2002, when a claim by the Yorta Yorta people of north-east Victoria was finally dismissed.

“The system is so legalistic, technical, expensive and exhausting that it causes a great deal of intra- and inter-community anxiety.

“And the fact that it take so long can mean the best evidence dies with the elders of the traditional claimant group.”

He noted that three of the original five plaintiffs passed away during the High Court case, including Eddie Mabo. Mr Mabo died in January 1992, six months before the High Court delivered its judgment.

“It’s a serious and continuing problem.

“The tide of history is washing away the traditional connection to country and history.”

Dr Keon-Cohen, who has retired from practice but keeps engaged as an adjunct professor at Deakin University and James Cook University, said another issue was that native title only delivered limited rights.

“Each particular right has to be established in evidence – for example, the right to fish – and each right can be extinguished individually.”

Dr Keon-Cohen said almost all the eastern seaboard would have little chance of a determination through the Federal Court because of the need to show continuing connection with the land.

He said the Native Title Act had “failed to deliver on Mabo’s new legal landscape”, and was “an inadequate scheme further compromised, against Indigenous interests, by the Howard Government’s 10-point plan in 1996”.

The amendments to the Act helped farmers and miners, with additional extinguishment of native title by various Crown land grants to settlers since 1788.

“They also raised further barriers to claimants – all said to be necessary to achieve certainty for white-fella property owners.”

Mr McIntyre says it can be misleading to highlight the fact that almost 50 per cent of Australia is now covered by native title agreements.

“A lot of it has no economic value, so it has not shifted the economic dial.”

In the Pilbara, the six wealthiest native title groups in the Pilbara – the Puutu KuntiKurrama and Pinikura, the Banjima, Yinhawangka, the Eastern Guruma, Nyiyaparli and the Ngarluma have reported collective income of $1.4 billion over the past decade. Their charitable trusts have distributed about $555 million to beneficiaries in that time.

Mr McIntyre said the income from native title agreements and determinations was often used for short-term fixes and handouts. “Where people have progressed is when it [the money] is converted into education or employment.”

He said the Banjima people was one group that would likely agree with former WA mining minister Ben Wyatt, who says grassroots members of native title groups should be given more access to the huge asset pools.

The Banjima originally managed the benefits received from agreements with BHP and others via a trust that was directed by a board that had a majority of indigenous people. Mr McIntyre was one of two independent directors.

Following a dispute with BHP over how the funds were being distributed, a professional trustee corporation took over.

“The experience of the Banjima has been that the trustee company charges a substantial amount just to hold the trust funds and hourly rates to consider distribution of any funds. Historically, it has been a difficult process for Banjima people to receive benefits from the trust fund.

“I think the Banjima would be likely to agree with Ben Wyatt’s comments.”

Mr McIntyre said native title “settlement agreements” had proved beneficial for groups such as the Noongar of south-west WA, and the Yamatji Nation, of mid-west WA.

“They have agreements with the State which provide benefits arising out of recognition of their status as prior holders of land.

“These composite packages – land and economic resources – have the capacity to empower First Nations peoples to achieve a significant degree of self-determination.”