PERTH lawyer Greg McIntyre, who represented ‘Eddie’ Koiki Mabo in the famous 1992 High Court decision, which led to the Native Title Act being passed in 1993, says the next phase of the process will be one of land management – possibly a treaty.
PERTH lawyer Greg McIntyre, who represented ‘Eddie’ Koiki Mabo in the famous 1992 High Court decision, which led to the Native Title Act being passed in 1993, says the next phase of the process will be one of land management – possibly a treaty.
Mr McIntyre says a range of regional agreements will help the process move towards an overall solution to the question of Native Title.
“What you have to recognise is that we are probably at just another stage in the process and that stage is where determinations of Native Title will be made in relation to Community Native Title,” he says.
“For instance the court may make decisions where a large area of land is held by the community of an area as a Native Title, but that won’t answer the question of whether an individual has any rights in relation to that area.
“It’s one of the issues that all stakeholders are grappling with.”
The choice between litigation and agreement may seem like an obvious one but, in reality, resource companies and governments were not accustomed to negotiating with Aboriginal groups prior to 1992.
Native Title in 1993 became a game that everybody had to play but nobody knew the rules.”
Mr McIntyre says the next logical phase is a treaty, an issue for which peak body ATSIC campaigned heavily early last year.
“A treaty is just an agreement,” he says.
“I know that word provokes reaction in people, but in reality it’s just an agreement between two parties.
“It does have certain connotations in international law, but you can enter into treaties within a country, as they have done in Canada and the United States, and I think eventually Australia will grow up to the point where our politicians can use that word without going berserk.
“If people feel better by calling them regional agreements or Indigenous Land Use Agreements then that’s fine.
“What you have to look at is the substance.
“I think we will get to a point where governments will sit down and do that, as they do consistently in New Zealand, where they agree on what the arrangements are between indigenous and non-indigenous peoples of a particular area.
“Once we get through that we’ll get into what I refer to as the second stage of litigation, where the issues about individual rights and sub-group rights and miners and developers start entering into all of the agreements.
“All of those will then have to be enforced and there’ll be new sets of corporations or prescribed bodies corporate, which will hold Native Title and will then have to manage it, and we’ll then enter into a land management phase and there’s no forseeable end to that.”
Mr McIntyre says the end of the process is very likely still many decades away.
“In a sense the game will have ended for me as a litigator when we’ve got a reasonable spread of determinations of Native Title and corporate bodies that are holding Native Title across the nation,” he says.
“When we move into that second phase, that’s an indeterminable process of land management, which just puts you into the day-to-day bread-and-butter of whether a certain person is entitled to this amount of royalty or not.
“There’s no political focus to any of that sort of disputation because most of it is individually oriented rather than a particular group.
“This first phase that we’re going through of regional agreements does still have a political focus and once you’ve got the determinations of Native Title or regional agreements pretty much covering the countryside you’ll then have lifted the socio-economic status of indigenous people into the mainstream of society.
“Once you’ve got that you’ve reached the end point of the political struggle.”
Mr McIntyre says a range of regional agreements will help the process move towards an overall solution to the question of Native Title.
“What you have to recognise is that we are probably at just another stage in the process and that stage is where determinations of Native Title will be made in relation to Community Native Title,” he says.
“For instance the court may make decisions where a large area of land is held by the community of an area as a Native Title, but that won’t answer the question of whether an individual has any rights in relation to that area.
“It’s one of the issues that all stakeholders are grappling with.”
The choice between litigation and agreement may seem like an obvious one but, in reality, resource companies and governments were not accustomed to negotiating with Aboriginal groups prior to 1992.
Native Title in 1993 became a game that everybody had to play but nobody knew the rules.”
Mr McIntyre says the next logical phase is a treaty, an issue for which peak body ATSIC campaigned heavily early last year.
“A treaty is just an agreement,” he says.
“I know that word provokes reaction in people, but in reality it’s just an agreement between two parties.
“It does have certain connotations in international law, but you can enter into treaties within a country, as they have done in Canada and the United States, and I think eventually Australia will grow up to the point where our politicians can use that word without going berserk.
“If people feel better by calling them regional agreements or Indigenous Land Use Agreements then that’s fine.
“What you have to look at is the substance.
“I think we will get to a point where governments will sit down and do that, as they do consistently in New Zealand, where they agree on what the arrangements are between indigenous and non-indigenous peoples of a particular area.
“Once we get through that we’ll get into what I refer to as the second stage of litigation, where the issues about individual rights and sub-group rights and miners and developers start entering into all of the agreements.
“All of those will then have to be enforced and there’ll be new sets of corporations or prescribed bodies corporate, which will hold Native Title and will then have to manage it, and we’ll then enter into a land management phase and there’s no forseeable end to that.”
Mr McIntyre says the end of the process is very likely still many decades away.
“In a sense the game will have ended for me as a litigator when we’ve got a reasonable spread of determinations of Native Title and corporate bodies that are holding Native Title across the nation,” he says.
“When we move into that second phase, that’s an indeterminable process of land management, which just puts you into the day-to-day bread-and-butter of whether a certain person is entitled to this amount of royalty or not.
“There’s no political focus to any of that sort of disputation because most of it is individually oriented rather than a particular group.
“This first phase that we’re going through of regional agreements does still have a political focus and once you’ve got the determinations of Native Title or regional agreements pretty much covering the countryside you’ll then have lifted the socio-economic status of indigenous people into the mainstream of society.
“Once you’ve got that you’ve reached the end point of the political struggle.”
