On 19 December 1993, after months of debate, the Native Title Act finally passed a fractious senate and became the law of the land. The government of Paul Keating had responded to the landmark decision on Mabo v Queensland (No 2) brought down by the High Court on June 3 1992 and, largely championed by Keating himself, had proposed a statutory solution to the new legal environment. The result, after intensive lobbying by the array of sectors with an interest in native title – Indigenous people, state and territory governments, miners, and explorers, pastoralists, tourist operators – was a law of almost infinite complexity, which sought to codify the Mabo principles, while establishing a procedure by which Aboriginal and Torres Strait Islanders could have their native title recognised. The Act also had an eye to community fears that it would bring chaos to long-established and well-understood systems of land ownership and land management. The vast majority of titles granted after 1788, including all freehold and agricultural titles, were validated. Peoples’ back yards and the family farm were safe.
The legislators had been forced to act quickly to resolve the uncertainties created by Mabo, complain as they might about the ‘activist’ nature of the High Court in bringing down a decision of such far-reaching consequence. Mabo overturned the ‘legal fiction’ that Australia had been terra nullius at the time of colonisation, a place that certainly had ‘inhabitants’, but without a recognisable system of law and land ownership. The ‘doctrine’ represented the ‘sole source of rights in the land’, and colonisation had proceeded unencumbered by notions of native title (Curthoys, Genovese and Reilly 2008, 55). It was not until 1968, when W.E.H. Stanner made his famous plea to revive Aboriginal histories from the ‘melancholy footnote’ to which they had fallen, that notions of terra nullius started to be seriously challenged. Following Charles Rowley’s magisterial three volume history of Aboriginal Australia (1970 – 71), historians were at the forefront of efforts to uncover these alternative and often silent histories of colonisation and bring to light the essentially unjust, and frequently violent, corrosion of Aboriginal rights. This growing ‘corpus’ of historical knowledge, most prominently that of Henry Reynolds, played a central role in changing judicial opinion about Aboriginal dispossession, and had a clear influence on the judges of the High Court when they asserted that Australia would remain ‘forever diminished’ if it failed to right the injustices of the past Broome 1996, 72).
Yet, in the narrative of Australian history, native title presents historical conundrums. It is a matter of future law, but one which had ‘always been there’ and thus ‘a matter of recognition rather than creation of a grant’ (Ritter 2009, 15 – 16). The High Court had acted to ‘go back in time’ to include Aboriginal property rights in Australian legal history, and the Native Title Act provided a method of developing an ‘imagined history’ in which native title existed in 1788, but had since been impacted upon, often extinguished, by historical events. In 1998, the Yorta Yorta Federal Court case was lost by the Aboriginal claimants, a reminder that, in the words of the presiding judge Howard Olney, native title could be washed away by the ‘tide of history.’ In order to win native title, claimants would have to prove historical connections and persuade the court to that their alternative narratives of history outweighed or at least counter-balanced the documentary record. In Ritter’s words, ‘if the applicants do not win the historiography, they lose the case’ (Ritter 2002, 81).
Twenty-one years on, the native title system, much amended, and subject to later decisions of the courts (most importantly the 1998 Wik decision and subsequent amendments by the Howard government) and an ever-expanding body of case law, continues to grind on. It is the subject of much criticism, its processes often labyrinthine and impossible for the non-legal mind to penetrate, but there is an impressive track record of successfully concluded claims through which thousands of Aboriginal people have won title to traditional lands. To an extent the historiography of native title has indeed been won. A broader acceptance of the history of Aboriginal dispossession, experience and connection has brought an era of agreement-making, in which the existence of native title is no longer contested; it is the terms under which it is held that are now at issue. Native title has become largely a matter of management, the polemics of some of the earlier Federal Court proceedings subsumed by considerations of the mechanics of native title and, most importantly, how it can act to improve the life chances of Aboriginal people. Far from upsetting the balance of Australian public administration, it has instead become a normal and accepted part of the Australian legal and administrative environment, while remaining a powerful tool for social justice.
Malcolm Allbrook is Managing Editor with the Australian Dictionary of Biography in the National Centre of Biography