Op-ed by Jamie Lowe, NNTC CEO for The Guardian
Australia’s First People have the expertise to negotiate with government, and we will use it to deliver on the promise of native title
Thirty years ago, Mabo overturned terra nullius, the lie that Australia was “nobody’s land” and effectively erased Australia’s First People in any legal capacity. By overturning terra nullius, the high court acknowledged that Australia’s First People hold rights in Australian land and waters, rights that predate the assertion of British sovereignty by some 60,000 years. For this we give our everlasting thanks to the Meriam people, traditional owners of the Murray Islands, who brought this action to the settler’s highest court, Eddie Koiki Mabo, Reverend David Passi, Sam Passi, James Rice and Celuia Mapo Sale.
The high court’s decision in Mabo and the subsequent passing of the Native Title Act 1993 fundamentally changed the relationship between First Nations and settler Australians. Mabo opened the door and provided the First Nations of Australia with a seat at the table with governments, the resource and pastoral industries.
As the preamble to the Native Title Act makes clear, the Mabo decision and the legislation would:
Ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.
But the question raised with every passing year is whether native title has delivered on this promise. There have been many problems with this system, such as the enormous burden of proof placed on people just to prove who they are. Some groups have celebrated hard-fought wins, while others have faced the cruel requirement to prove “continuous connection” to their country when it was the colonial system that pushed them off, and continue to push them off, their lands. The onerous and technical requirements and the lengthy and arduous native title determination processes have meant that many groups that have suffered the greatest levels of dispossession have not been able to achieve basic recognition of who they know themselves to be. For those able to secure settlements with governments and determinations from courts, they must continually fight hard against the subsequent erosion of rights won for, as Tony McAvoy SC said, “the colonial beast is insatiable”.
As Australia’s First People we never ceded our sovereignty. Our sovereignty exists in parallel with that of the settler state. We hold our sovereignty not as some pan-Indigenous identity but as individual nations grounded in traditional ownership of our lands. Native title is the settler court’s comprised way of recognising this and each time a native title determination is made in favour of an Aboriginal or Torres Strait Islander group, that determination is recognising something of our nationhood. Governments in Australia, by negotiating native title settlements with us, have provided de facto recognition of that sovereignty and in that way have been negotiating treaties with us for the last 30 years. Treaties are not something to fear, they are the tide that raises all ships, from which all Australians will benefit.
Prime minister Anthony Albanese’s first sentence in his victory speech was to commit to the Uluru Statement from the Heart. The Uluru Statement is the culmination of more than a century of activism by Aboriginal and Torres Strait Islander people for recognition of their rights and a seat at the table. It follows from the Torres Strait Islander maritime strike, the Aboriginal Progressive Association’s declaration of 26 January as a National Day of Mourning, the Cummeragunja walk-off, the Pilbara strikes, the Wave Hill walk-off, the 1967 referendum, the Freedom Rides, the creation of the Aboriginal Tent Embassy, the Mabo decision and I could go on. There are so many First Nations men and women who have sacrificed so much in the fight for our rights.
The Uluru Statement calls for a First Nations’ voice in the constitution and Makarrata, a Yolngu word similar to treaty that requires conflict resolution, peacemaking and justice. True to his word the prime minister has appointed senator Patrick Dodson as special envoy, responsible with the Indigenous affairs minister, Linda Burney, for the implementation of the Uluru Statement from the Heart. The appointment of Dodson is commensurate with the immense respect he commands in the First Nations community and the broader Australian public.
With this we sit on the precipice of the promise of true First Nations’ self-determination and we hope not to be disappointed. What the last 30 years of native title has given Australia’s First People is the skills and expertise in negotiations and governance that we will take into the future negotiations of a voice to parliament and treaty. The Burney-Dodson team is a leadership pairing of vision, intellect, integrity and grit. It is backed by an incredible talent pool of staunch black leadership from all parties and we will proudly stand with them.