Native Title: what Mabo ruling means

By Tim Mellor, Mellor Olsson Lawyers

It is a curious sight. In the shadows of the Flinders and Gawler Ranges, on the shores of Lake Bonney, in the red sand of Blood Creek, the Federal Court is in session. Complete with robes and gowns and an assembly of lawyers and parties, judges are delivering the Court’s ruling as to the Native Title rights of aboriginal claimant groups. The result is not in much doubt – all parties have consented to the determinations.

After a decade before the court, the judgment confirms that the group have always had, and continue to hold legal rights and interests in the land. The hearings are ceremonial in nature, but amidst the dust and heat, it remains part of the formal court process.

There are likely to be three or four more such consent determinations recorded by the Federal Court in SA before the end of the year.

On 3 June it will be twenty years since the High Court delivered the landmark Mabo judgment. It is interesting to reflect on what has been achieved since.

The period after the judgment was a time of some fear and uncertainty, and what turned out to be unrealistic aspirations and concerns. The Native Title Act in 1993 set up the system of Native Title Claims in the Federal Court, and in 1996 the Wik decision confirmed the continuation of rights despite the existence of pastoral leases.

It is perhaps fortunate that only one matter in this State has run the full distance through a contested hearing. The de Rose Hill case was a difficult and divisive process, and is still not yet fully resolved.

Quite what a consent determination means in practical terms will vary greatly from claim to claim, but my perception, at least in the area of pastoral activities, is that it has made little difference to the practical day to day operation of pastoral holdings.

Coming in behind the consent determination, parties are often considering entering into indigenous land use agreements (ILUA’s) to provide a set of "station rules" for the practical operation of native title on the land. A number of pastoral ILUA’s have been up and running for many years. These were put in place with the assistance of the SAFF and with some funding through the Commonwealth.

The usual areas of greatest concern remain the recognition and protection of sites of cultural heritage and significance, and the capacity to develop the property.

What is clear is that the best results are those which are reached by common agreement. This involves a degree of trust, compromise, mutual respect and acceptance on the part of all parties.

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