As we prepare for the next wave of native title negotiations and litigation over compensation cases, it is timely to reflect on the nature of settlements that have occurred to date and what has driven the parties toward reaching agreement. As we know from over 20 years of experience with native title determination applications, the law is a blunt instrument for resolving issues between Indigenous peoples and colonising governments and is apt to weigh against the interests of Aboriginal and Torres Strait Islander peoples. Native title is at once colonising and decolonising – it empowers Aboriginal and Torres Strait Islander peoples and yet largely reinforces the status quo.
Native title determination applications are primarily concerned with proving the cultural strength and resilience of Aboriginal and Torres Strait Islander peoples. By their nature, the requirements of proof demand that peoples’ laws and customs have survived generation by generation. Compensation claims, in contrast, will focus on what has been taken away.
Our experience from large scale settlements, whether under the future act regime or in settling consent determinations, provide an insight into what is inevitably at the heart of such negotiations – native title settlement negotiations must inevitably acknowledge the history of dispossession and cultural devastation but also celebrate cultural resilience and strength and build a foundation for the cultural and social resurgence of Aboriginal and Torres Strait Islander peoples.