Are our backyards, beaches and parks under threat from Justice Wilcox’s recent decision on native title in Bennell v State of Western Australia? The answer is no. No no no no no. How many times do I have to repeat it? But after recent inflammatory and unhelpful comments by Philip Ruddock, Federal Attorney-General, you’d be forgiven for thinking otherwise.

The Western Australian government has indicated that it will appeal the decision. Disappointingly, there has also been a hysterical reaction by State and Federal politicians of all stripes. It makes me so angry. The average person has no idea about native title and is liable to be scared by stupid statements by politicians who should know better.

Native title has been held by courts to consist of a “bundle of rights”, including fishing, hunting, rights to hold ceremonies and so forth. It is very unlikely to consist of a right to exclude all other people from the land.

Justice Wilcox states in the explanation accompanying his judgment:

It is perhaps important for me to emphasise that a Determination of Native Title is neither the pot of gold for the indigenous claimants nor the disaster for the remainder of the community that is sometimes painted. A Native Title Determination does not affect freehold land or most leasehold land; it cannot take away people’s back yards. The vast majority of private landholders in the Perth region will be unaffected by this case.

Freehold title (the normal title held by most of us) totally extinguishes native title. So does average leasehold title. Both freehold and normal leasehold title grant exclusive possession (ie, possession of the land exclusive of all other rights). In fact, native title will be extinguished to the extent that it is inconsistent with any other property rights in the land. It is a very limited proprietary right, so weak that I would argue that it is questionable if it can be classed as proprietary right at all. For goodness sake, a sneeze probably extinguishes native title! This is why Ruddock’s comments are so divisive. As a lawyer, he should know that native title is unlikely to consist of a right to exclude people from the land, and that any reservation of land for public purposes will extinguish native title if the native title rights are inconsistent with that reservation.

To establish native title we ask indigenous people to establish an unbroken and continuing connection with the land in question. But how can one easily establish an unbroken connection when you were forcibly moved to the other side of the country or prevented from speaking your language or practising traditional ceremonies? Mabo has become a victory for indigenous people in name only; practically, it has offered them very little. I am glad that Wilcox J took a more pragmatic approach in respect of the Noongar. At least under Wilcox J’s formulation, native title is more than a dead letter. I agree with Noel Pearson: the decision is a moral victory for native title.

As the editorial in Friday’s Australian argued, it would be a pity if litigation were to continue. The only people to benefit from native title litigation are the lawyers. Because of its adversarial nature, litigation leads parties to focus on their differences rather than their similarities. Interested parties would benefit much more from coming to some kind of compromise or agreement. Personally, I think native title litigation should be abandoned and we should attempt to work out some pragmatic, practical accord with indigenous people and others who have an interest in the land (such as Cape York Peninsula Land Use Heads of Agreement signed in Cairns on 5 February 1996). Unfortunately, this doesn’t seem to be on the agenda for any government at the moment (State or Federal): all I can see from where I stand are more hysterical knee-jerk reactions pandering to people’s fears.

Peter Fray

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