Calls for a “sunset date” for Indigenous native title claims have been branded “US-style extremist politics”, while a leading expert in the field warns compensation cases for damages to culturally significant land by activities such as mining are “only just beginning”.
On Monday, One Nation leader Pauline Hanson sparked heated debate in the Senate after calling for a cut-off period and an investigation into the effectiveness of the current system, suggesting most Australians would be surprised that nearly two-thirds of the country fall under either pending or determined native title claims.
In addition to the federal Native Title Act 1993, individual states have their own laws governing claims of traditional ownership.
“Forget about what happened 250 years ago,” Ms Hanson told the Senate.
“We’re all Australians born here today. Instead of making claims all the time, let everyone get their land the same way. Work for it as Australians regardless of your background, race or who you are.”
University of Queensland Emeritus Professor David Trigger, a renowned anthropologist with decades of work in the field who has regularly served as an expert witness in native title claims, said while there were improvements that could be made to the existing system, he believed most Australians supported the laws.
“To those who are completely opposed to native title — I’m not sure what the alternative to native title is,” he said.
“Would we not recognise previous occupation of the continent at the time of British sovereignty … go back to the idea of the land belonging to no one, terra nullius? I’m not sure that is what the majority of Australians would now even want.”
‘Only just beginning’
Prof Trigger pushed back on suggestions Australians should be fearful of native title determinations.
“Where native title has proceeded it has not resulted in a threat to the wider citizenry,” he said.
“There may be the odd instance where there’s conflict and dispute, for example if an area previously accessible perhaps becomes more restricted, but my experience is I’m confident those cases can be worked out.”
A key area of improvement would be “to have greater clarity about the nature of coexistence after a native title claim has been resolved”.
“It would be good to have greater clarity that the aim of native title is to recognise Indigenous cultural rights to country in an area where they haven’t been extinguished [such as] freehold blocks, but ultimately it’s to assist the achievement of better lives for the relevant Indigenous groups in terms of practical things like health and economic viability into the future,” he said.
Prof Trigger recently provided evidence in the ongoing native title compensation case brought by the Northern Land Council on behalf of the Gudanji, Yanyuwa and Yanyuwa-Marra peoples against the NT government over the McArthur River open-cut zinc mine.
The federal court claim, lodged in 2020, seeks unspecified damages over the McArthur River mine, south of Borroloola, and the nearby Bing Bong Port in the Gulf of Carpentaria.
“The case is about the nature of the impacts of building a mine on the area and the question of compensation for the acts which [affects] their cultural connection,” he said.
“The McArthur River itself, a major northern Australian tropical wet season river, was rerouted for 5.5 kilometres because the mine pit is now where the original course was.”
Regarding a sunset clause, the Prof Trigger said the “question of compensation for impacts on native title rights will be ongoing, it’s only just beginning”.
“To put a time frame on when compensation claims may end would be very difficult,” he said.
How claims work
Prof Trigger, who began working with Aboriginal communities in northern Australia’s Gulf Country in his 20s, says claims are subject to rigorous examination by courts.
Anthropologists will typically be called in by the claimant to write a “connection report”, based on fieldwork and interviews with living people about their “customary connections to country” as well as archival records and any previous documentation.
“A lot of it is recording oral traditions,” he said.
“The information needs to be cross-checked. You don’t just record what a particular person says and that becomes the facts — checking the facts across the wider public of people who constitute the claim group is very important.”
Prof Trigger said it “happens quite a lot” that there were disputes between groups over an area’s history.
“Sometimes that disagreement can’t be mediated, sometimes it can be, but on occasions it has gone to court as to whether some families, for example, are going to be included as members of the native title group on the basis of tradition,” he said.
“It is a complex area of applied social research because we’re not naively dealing with unchanging cultural knowledge, we’re dealing with massive cultural change depending on which region of the country we’re dealing with. For regions where you’ve had much longer histories of encounters with wider Australian society, it’s going to be different from a remote region.”
Map an ‘eye-opener’
Writing this week on X, formerly known as Twitter, Ms Hanson posted a map from the National Native Title Tribunal (NNTT) showing the current determinations and applications, suggesting that for many Australians “not aware of the true extent of Native Title control” in the country “this map will be an eye-opener”.
“Under current law, there is an infinite time period during which claims can be initiated,” she wrote. “That means groups could still be initiating claims in 100 years.”
Speaking in the Senate on Monday, Ms Hanson said Australians were “sick and tired of the explicit racial double standards underpinning native title”.
“Native title has been a major issue impacting all Australians’ land rights for more than 30 years since the Mabo and Wik decisions,” she said.
“It’s time to put an end to it and introduce equal rights for all with respect to Australian land. Today more than half of Australia is under native title, and if all pending claims are factored in, up to 62 per cent of our country will be under it. That’s almost two-thirds of this continent claimed by less than 2 per cent of the national population.”
Liberal Senator Michaelia Cash said there was “significant merit” in Ms Hanson’s call for an inquiry into the effectiveness of the native title system, but the Coalition could not support the motion due to the “legally problematic” proposal for a sunset date.
“One concern we have is that it could lead to an increase in litigation,” she said.
Ms Cash said the Coalition recognised the “potential economic benefits of using native title to stimulate investment and jobs in regional and remote Australia”.
“But in far too many cases — and this is why we would support part (b) of the motion — the potential economic effects from native title are not being realised,” she said.
“For too long, native title rights have not delivered the kinds of outcomes for Aboriginal and Torres Strait Islander communities that we would have liked to have seen them deliver.”
The WA Senator and former Attorney-General described the Native Title Act as “notoriously complex” and involving “myriad confusing concepts” which, when explained to an ordinary person, would see their eyes “glazed over”.
Basic questions “absolutely should be explored and looked into” such as the complexity of the claims process and the role of land councils, Ms Cash said, but added it was unclear whether sunsetting claims was “even possible”.
“Eddie Mabo did not need a Native Title Act,” she said.
“He did not even need a claim process. In Eddie Mabo’s case his rights were recognised by the High Court under the common law of Australia and, importantly, those rights were not granted as a result of some kind of a claim. The court actually said that they just simply exist, and they had continued in existence since before European arrival because of his continuing connection that he had with the land and the waters. The court, therefore, decided to recognise those rights.”
She added, “Even if you do go down the path of pursuing the idea of sunsetting native title claims under the Native Title Act, it appears at first glance, based on the legalities of what we are looking at, that native title rights would nevertheless continue to exist.”
‘Translating for whitefellas’
Greens Senator Dorinda Cox, a Yamatji-Noongar woman from WA, blasted Ms Hanson’s “cooked up” motion as stunt to “get extra donations and [stay] relevant in the media”.
But Ms Cox said the Greens would support an inquiry into native title reform to strengthen the system.
She said Ms Hanson “doesn’t understand or, frankly, respect just how difficult and timely it is to gather all the evidence that’s needed to make a successful native title claim”.
“She wouldn’t understand what that means, and the intense emotional labour that is constantly put on Indigenous people, First Peoples of this country, to have to prove their identity,” she said.
“We’ve had this yarn more than once in this place. That basically means we’re translating 65,000 years of history and culture for whitefellas to understand, for a court to understand, for lawyers and others — legal teams — to understand and advocate for.”
Labor Senator Tim Ayres also slammed the motion, and Ms Cash for “falling over herself to almost agree with Senator Hanson’s proposal”, saying it represented the “extremist takeover” of the Coalition.
“So what is this all really about? It is about projecting imported, US-style extremist politics into this place and out there in the community — disinformation out there into the community,” he said. “What’s it really all about? The ‘No’ Voice campaign is exactly what this sort of bottom-of-the-barrel material is.”
Mr Ayres argued Ms Hanson’s request was “not legally possible”.
“As a decision of the High Court, [native title] is not something that is open to this parliament to just abandon,” he said.
“It can’t be achieved. It is part of the fabric of our common law … Back in the 1990s, Australians were told that they would lose their backyards to native title. It wasn’t true then, and it isn’t true now. Native title offers traditional owners the opportunity to build a better future for themselves and for their children. It empowers them to step up and play a role in managing land and waters, safeguarding cultural heritage and creating employment for their communities.”
He noted to date there have been 450 positive determinations of native title covering 43 per cent of Australia. A further 139 claims have not been determined.
“Under Senator Hanson’s proposition, in other words, that’s at least 139 cases where native title claimants would be denied justice,” Mr Ayres said.
Her motion was voted down in the Senate, opposed by the Coalition, Labor and the Greens.