Native title is often perceived as a technical and legal process that is far removed from the majority of Australians, and largely inaccessible from a conceptual, social and policy perspective.
Understanding Native Title aims to demystify the sector in a series of interviews with professionals working in various areas of Aboriginal and Torres Strait Islander land justice and policy.
Speakers discuss topical and emerging issues in the complex native title sector and provide reflections on both the technical and the lived processes of native title.
The podcast episodes work as easily-accessible online seminars with each episode covering a different subject area, including the Australian First Nations’ economy, land management, return of native title materials and what it takes to run a PBC.
Episode 1 - Water rights and native title with Dr Virginia Marshall
In this episode Dr Virginia Marshall, a Wiradjuri Nyemba woman, talks about water rights and native title in Australia with Peter Bligh, former Director of the AIATSIS Native Title Research Unit.
Dr Marshall shares her research and explains the current landscape for Aboriginal and Torres Strait Islander water rights. She talks about how Sea Country rights are currently protected by native title, the Murray-Darling Basin Plan and the National Water Initiative.
She is the lead chief investigator on an Australian Research Council grant on creating pathways and opportunities for Indigenous medicines in Australia. Dr Marshall was selected as a UN Pacific Delegate to COP26 in Glasgow 2021 for the Indigenous Peoples Platform meetings.
Dr Marshall won the 2015 AIATSIS Stanner Award for her thesis, ‘A web of Aboriginal water rights: Examining the competing Aboriginal claim for water property rights and interests in Australia’.
Peter: Doctor Marshall, could you tell us a little bit about yourself? (1.08)
Virginia: Wiradjuri woman. I went to school until I was 16, hated it with a passion. Then I came to this incredible career as a mature age student with four children. I was just really passionate about learning. Of course, then I was admitted as a legal practitioner in 2003. My passions in law were Aboriginal water rights and intellectual property rights as well. My career has brought me here, to ANU, in the last couple of years as the first Indigenous post-doctoral fellow; an appointment where I chose to go to RegNet, the regulation school of global governance and Fenner School of the environment here on campus at ANU. It’s just been an amazing year and year after year – three years going on my fourth year now – so it gives me loads of opportunities to advocate, to practice and to write scholarly publications and my next book so it’s fantastic. (2.18)
Peter: Would you mind explaining to us and our listeners what the current state of First Nations’ water rights are here in Australia? (2.27)
Virginia: Water rights for Indigenous people in Australia hasn’t gone forward very much at all, and I say that for the states and territories as well. It’s the case that we know that like the heritage legislation across Australia, water legislation is not uniform. States, territories can basically do what they like or not with incorporating Indigenous water. When we had and Indigenous water commission and that was dismantled, at least there was an oversight body for water. When that was dismantled and then all of those archived materials were then put in the productivity commission, which is purely economics through that lens. It meant that Aboriginal and Torres Strait Islander people no longer had a body that they could go to to give those bi-annual reports; which was really important because it showed the disparities between what the states and territories and the Murray darling basin authority should be actioning. And is also meant that even those these were voluntary actions that they were to take - the description by the Murray darling basic authority themselves is that it was patchy at best – there was very little forward motion or embracing of really having that hard discussion in irrigators and farmers and pastoralists. And really that we have an over-allocated water system that has history of being over-allocated and any un-allocated water, meant that governments were very much moved to make sure they could restrict and quarantine that water from Aboriginal and Torres Strait islander people. So we haven’t come to a reconciliation or a restitution for the theft of Aboriginal and Torres Strait islander water issues, rights and interests. So it’s at a very difficult space, and also we got the PC looking into the NWI and looking at potential water reforms. In the past years we haven’t had those mind-blowing outcomes for Aboriginal and Torres Strait islander people that those reforms will actually make a difference in the lives practically for Aboriginal and Torres Strait islander people. (5:18)
Peter: Could you take us through the NWI in a little bit more detail and explain what the state of play is now and how you would be keen to see it reformed to positively affect Aboriginal and Torres Strait islander people? (5:36)
Virginia: I think that’s a really good point. With the NWI we have to look at 2004 as a very important time. When John Howard and his government decided to commodify water, they rushed to change the system where water run with the land and we had inherited that from England. So that made a very big difference, when we were given just three clauses, 53, 54 and 55 in the NWI, it was only to be accounted for or wherever possible. So really it didn’t take incorporate all the other rights and interests that Aboriginal and Torres Strait islander people have in this country and have had for 60-80 thousand years. So we lost all of those pre-existing rights that we had and I think that the NWI was really focused on sectoral interests like farmers and pastoralists and irrigators and it was to secure their on-going transition then to accumulate wealth and position and that’s been the situation for us. We’ve been included basically very late in the peace. We’ve had some advocacy from Aboriginal Peak bodies and they’ve been incorporated in the NWI and that’s where the problem begins. It wasn’t written for us, it wasn’t written with us and it’s and certainly at this stage of water reform is 2021, we need to be advocating seriously now on changing that system. SO that’s where the NWI is focused. It focusses on farmers, irrigators, pastoralists, miners, money extraction. We’ve seen a range of projects across Australia that use water – even in mining companies they use ground water for dust suppression. There’s also the extinguishment of native title that happened on the traditional peoples lands in Queensland. The extinguishment of native title to make way for the Adani Mine. So you know we can see that there are a lot of issues that are not covered in the NWI and that’s the failure of the concept itself. The framework is a western framework. The tools that’s are used in the NWI don’t take into account water values of Aboriginal and Torres Strait islander people. They don’t take into account cultural water, they don’t have a definition or understanding of cultural water. But the most important thing is that they don’t have water for an economic livelihood. So a subsistence relationship with that water, where you can actually live on country and also earn a living is not even written in to the NWI. And that’s very similar to native title, where native title is determined in a litigated outcome, you get exclusive water rights, or non-exclusive water rights (9.08) but the water itself, you can do anything with. We have had that difficult situation where Aboriginal and Torres Strait Islander people have that determined litigation and then find themselves with no capacity financially or otherwise to go forward. So that’s the huge failing of the NWI. (9.37)
Peter: One thing that I wanted to focus on that you sort of started to touch on was about cultural conceptualisation. The economic lens has kind of been foregrounded in the NWI; what does that miss for Aboriginal and Torres Strait Islander people; what parts of our perspective does that miss and what does that mean? (10.04)
Virginia: Well I think it really misses us coming onto and living on Country, working on Country. Not every Aboriginal and Torres Strait Islander people wants to leave their home; they want to be productive on Country in a whole range of areas; it could be water, it could be land, it could be biodiversity, it could be sandalwood farming. There are a range of other areas that could be had from that relationship. And Aboriginal and Torres Strait Islander people have bartered and traded for thousands and tens of thousands of years, so that economy was the pulse between nations in Australia. So that historically hasn’t been represented in the NWI. When we talk about cultural water, the position for the irrigators in their submission a couple of years ago is that they weren’t averse to have cultural water as long as it didn’t take any flow from their application. And that’s the problem. We have to make sure that when we talk about economic livelihood, we need to be talk about how Aboriginal and Torres Strait Islander people make a practical living. And when I didn’t a report for the rights and resources initiative in Washington D.C, this was a report card on Australia in terms of customary water tenure. And the administrators therefore the RRI were really shocked when they saw that in a first wold country in Australia, basically acknowledged as a global North region, that Aboriginal and Torres Strait Islander people are living in a global South. So they were actually quite shocked that there was no way we could actually have subsistence lifestyle and economic livelihood from water. This is the case for native title and I went through all of the legislation and all of the regulations that would have anything to do with water across the country, including: the Aboriginal lands trust act, the native title act, and all the other areas as I’ve said that contain water. It really shocked me that there is no consistency. We can see with Aboriginal cultural heritage issues like Juukan gorge and FMG with the Pilbara have recently wiped away tens of thousands of years of Aboriginal culture and history and heritage and also a bond with those relationships with Country. So we just don’t seem, at this point, to understand how this has really seriously impacted Aboriginal and Torres Strait Islander people. We have Aboriginal farmers, we have Aboriginal pastoralists. We have Aboriginal and Torres Strait Islander people heavily involved in the marine industry and fresh water; so there’s great opportunities, but the capacity and the ability for Aboriginal and Torres Strait Islander people to actually have that economic livelihood is really not been thoroughly addressed. (13.51)
Peter: Some people have suggested that, like New Zealand or India where rivers have been afforded the status of a juristic entity as a protection from human over-exploitation. Do you see this as beneficial in the Australian context for addressing some of that disparity and providing the space for that subsistence lifestyle? (14.20)
Virginia: Uh no I don’t and I’ve written a paper in the Australian feminist Law Review that talks about removing the veil of the rights of nature. And I say that very carefully because as a practicing lawyer evidence is really important to me. And what I do has really set out the reasons why this is beneficial and also there’s a lot of unknowns. I’ve talked to Prof. Jacinta Ruru who is a well-respected Maori professor, that it was the case that it was a compromise for the Whanganui River in New Zealand, for not only the Crown but also for Maori. And that compromise meant that they then sort a legal personhood. In other words, the river has legal standing a natural person or an entity. The problem was that when I had talked to Maori people there just before Covid, that they were quite clear that they had not thought about the problems that were going to occur and will occur if the river floods for example or there are contaminants that flow into the river or out to other sector interests. So it’s not that we should be looking for another western tool. This whole idea of the rights of nature came from the 60s & 70s; a western movement, a campaign (15.48) But the issue isn’t really using a western tool and then leaving our Aboriginal traditions, laws, customs and practices. Um we should be looking at, well how is that going to provide and continue to provide for us in cultural heritage for economic livelihoods. Um it basically won’t. Um if the river has a legal standing of its own, who is going to take instructions for the river? Who is going to speak for the river? That’s the reason they actually appointed a guardian by the crown and they also had an EV representative in New Zealand but for Aboriginal and Torres Strait Islander people we have so many nations that really have a joint authority for these ancient areas and that’s problematic. And it’s also problematic because it also really goes against what we fight for in native title and lands trust and many other forums for land and water. It doesn’t really come from our relationship with country. Um it really just speaks another language, that really doesn’t fulfil us, it just means that we’re should be looking at stronger laws and policies and engagement of Aboriginal and Torres Strait Islander people in those laws and policies across the nation. And I’m not saying that all people exploit. When I have given conferences internationally or domestically, one thing that keeps on coming through is that we acknowledge the Indigenous wisdom, the rights of nature, proponents speak but on the other hand they move on then to use western tools. And that’s what we’ve been trying, since this place was colonised, to always really assert our own identity, our own self-determination. That’s what the UNDRIP, it’s about having our own identity. And we didn’t use the rights of nature and all of the different variations to assert our identity. You know even 300 years ago, or 400 years ago, or 2000 years ago, um it’s not of us. And I think we’ve got to be very careful. Deal with the exploitations and the reasons why. Deal with the government, the jurisdictions that really don’t have engagement with Aboriginal and Torres Strait Islander people and they don’t have sufficient voice from community to actually tell the government what they want. So I think we’ve got to be very careful on embracing the new idea of the rights of nature will save us from exploitation because there’s a lot of other issues that we have thought out. So I just have to really caution people on embracing that instead of really going out there and being active and supporting those things which are dear to us. Which is our identity, our cultural heritage and country and where we belong; that’s important. (19.35)
Peter: Where and how do you see water rights progressing from this point then and where would you like to see them go? What do you see as the ideal scenario for Aboriginal and Torres Strait Islander people? (19.54)
Virginia: Well when we talk about water rights it’s really important to think that sometimes we will have a really solid case that will be a precedent and would actually be a good law for us to follow. In those cases, that would be few and far between in native title. We’ve seen a lot of discrepancies with sea country for example. I’m running a case on sea country in South Australia which will go to trial in April approximately next year. So I think that we want to ensure that our rights can be heard and dealt with at a state territory and commonwealth level without having to go to court. But unless we see some changes in the ways that governments interact and also take on board what Aboriginal and Torres Strait Islander peoples want change, not more narrow judgements. I don’t really think we have recovered since Yorta Yorta decision at the high court. It’s been a huge impact that’s really gutted a lot of communities and hence why we are now trying to talk about treaty. In Victoria there is a very strong treaty movement, and in the northern territory there’s now submissions for treaty discussions there. There are also treaty discussions in Queensland for example. But the words of wisdom when I was at Garma by Sir Tipene O’Reagan, who was a Maori elder, who was then leading the negotiations for the fishing settlements in New Zealand, and he always had said that we have to take our time when we really do want to process these settlements or theses treaties, sometimes they take 20 off, 25 years. I think sometimes we rush into these things too quickly. And he also said one very very good thing, is don’t ever quantify what you want. Governments in New Zealand were asking them to quantify how much fish they wanted to have. And the same question for us is we are being asked now here in Australia to quantify what amount of water we want. Which Sir Tipene O’reagan gave sage advice that that is a trap. We need a federal treaty and we need that for the same reasons as in the United States; that the federal congress can only terminate those relationships, those treaty relationships and what would happen in Australia if we have a breach of a treaty in a state and territory, who is going to represent Aboriginal and Torres Strait Islander people against the state. If there’s no federal treaty then there won’t be any funds, there won’t be any legal representatives provided to us. That’s what they do in America; they have, because they have that federal system of treaty they can actually then provide native peoples with that legal representation and fund that case against the state. And that’s happened often. So we have to be really thinking multiple idea about treaty, securing native title for Aboriginal and Torres Strait Islander people because it seems to be diminished more and more every year. Since we have had that Australian law reform commission report, final report, (um) of the enquiry, many of those recommendations haven’t been implemented and they’re significant. What it appears to be on the outside, is that we seem to be losing control, we are not gaining control and it’s a very complex system. Its over-regulated. And remember, this is one thing that I learned from my doctoral thesis research in law; I read a book by C.K. Meek, and it was about 1930s-40s, and I found that in the library. (24.28) And when I read through it, it was giving examples of some African countries, Islands: Haiti – all over the world which the British had colonised the world – it gave huge examples. And the one thing that meek had point out is that this was used as a colonised tool. So in other words leases were used to make sure that governments could quarantine land away from Aboriginal people, no matter where they existed across the globe; Indigenous people. And also there was a mention of inalienable land, and a method to quarantine land from Indigenous peoples. And that opened my eyes because he was writing to glorify and support that system and to point out that this wasn’t a political view, this was a how to colonise indigenous peoples lands. And if we think very carefully, what do we do with native title? Its inalienable, what do we do? After 15 to 20 years of really going through and funding a native title case, and the emotion, the frustration, the death of community members, then we lose it after 15-20 years or 30 years. So we have to think of a new system. I don’t know anybody who is really doing that at the moment but it’s not working for us, it’s making it more complex. And it means that there are a lot of desires for Aboriginal and Torres Strait Islander people for industry, and you know, commercialisation or just a subsistence lifestyle but native title is not allowing that. The lands act does, the lands trust act does, and it also has a veto. Why then, does the native title act not have a veto. We talk in United Nations language, free, prior and informed consent. Why don’t we have that in the water legislation for example? And another water issue is, where if we need to have water bought back by the government for us, Aboriginal and Torres Strait Islander people, it means that we could consider levies of 1 or 2 per cent and that’s what I heard today in relation to aged care. For funding a whole range of items that have not been provided for aged care; so we could do the same thing. Environmental levies would really satisfy the same means. And I know when I read the Tribunal, Waitangi Tribunal, final report last year, that they were actually looking at levies to actually bring water back into communities, water that was stolen, water that was given away to others. You know when we think on 1967, Aboriginal and Torres Strait Islander people were just coming to terms with a little bit more freedom. But still in Australia in the 70s and 80s, children were still being taken away under assimilation policies. So when you think of the timeframe that we have had to be truly independent it’s a very short time span. We haven’t had that opportunity, so I really think we need to get together and wait and really think and talk about these issues because I think the current systems are not working. (28.35)
Peter: Thank you. You mentioned a little bit in there about rights and control and that there might be, pardon the pun, a flow on effect of positivity for First Nations’ people. you have discussed the difference between first-use rights holders, and stakeholders in relation to water law and policy here in Australia. Can you describe for us the difference between the two, and how might being seen as First Peoples and not stakeholders change the water use landscape? (29.10)
Virginia: Well language, as a lawyer always changes things. And that’s one thing that I’m very grateful for in my training. And I think that one of the things that’s we’ve got to do is really in our own minds and really convincing others when we talk about land and water rights, and resources rights. Let’s put that in there as well. That we need to really take off that veil where we have been told that we are one of many stakeholders. We read that in so many enquiries, reports, productivity commission reports, that we are a stakeholder and a minor one. What we are is first peoples of this Country and we’ve been here forever, that’s the position. Ours is a first-use right, similar to the states, the united states. So I know that there is a very difficult system in the United States that I won’t go into, um and its not all the same across America. But we have first-use rights because we’ve always looked after water, we’ve always been here, there’s creation stories of how water begun, how those old paleo channels have always been a part of the landscape since the ice-age, we’ve really had so much more knowledge through archaeology to really put a timeframe on how we have used water and how we’ve traded ochre and many other things. So I think that’s what we’ve really got to do, mentally take our self out of that stakeholder mentality, so we have to really see ourselves actively and also demand that we are recognised as first peoples. And that’s in all the water legislation and native title. I don’t think the preamble does enough to spell out exactly who we are and what we are. And the act really goes against that preamble in the native title act; you know, honouring us and where we have come from. So I think that we’ve just got to really be clear in all things; that the language changes, that we do make sure that we are always ensuring that we are First Peoples on paper, in the courts, in policy submissions, in laws. Every law that I looked through with the RRI enquiry, it had language that for example, they would talk in the northern Territory that they were talking about cultural use, but they weren’t talking about Aboriginal cultural use, they would talk about aesthetic uses. Um so the language is really important and is now moving towards a national water reform of the NWI. Is that we have and we should have dedicated chapters. I believe that we should have a resurrection of the national water commission with an Indigenous unit, that specifically deals with indigenous issues and water issues and land and resource issues which accompany water. The whole idea, from a Western point of view, it should never have divided/decoupled water from the land, because we don’t do that as Indigenous peoples; we see it together. And this is the thing. It’s the language and the concepts that we have to come back to. I think when we try to fight the system in native title we are really playing by the rules that have been invented for us. Mabo number two, is just an incredible source of fulfilment for people who have their litigated determination that are positive, that they’ve got exclusive rights. But for many other people, they’ve missed out on having that opportunity to have the courts recognise their rights and interests. And there’s a lot of heartache. There’s a lot of bad relations because of native title cases where they have had to not acknowledge overlapping lands are natural to our communities. The native title act wont deal with that, in its proper cultural way. Communities, who are communities? Who are societies? So I think that all of the issues that we deal with, with the legislation such as the native title act is really complicating what really in quite simple. We are a very um, amazing people because we are the first people, we are the longest surviving living culture in the world. And when I was invited to be a delegate at the United Nations’ climate change preparatory meeting in Mexico, I was sitting around the table with representatives from Canada, Ecuador, Bolivia, Columbia, you know, Maori delegate, I was one of the Pacific delegates, that when I just said what I’ve said to you now, they didn’t disagree. The Maori representatives took me aside and said thank you for saying that, and reminding us of your position, of your community’s position in this world. We need to take that on board and advocate as strong cultural people and we need to see ourselves as that, you know that I think that will make a huge change, in the way that we put those submissions in, flood that productivity commission with really the way things should we written: policies, laws, engagement. When we talk about consultation, you know we aren’t just talking about meet and greet, we’re talking about full engagement, full participation. And I when we really come to see those things happen practically, then we will be fulfilling UN self-determination language, we’re not. (35.13)
Peter: Yeah that would be my follow-up question; the language would change, do you see that playing out in practice with a centred reality for Aboriginal and Torres Strait Islander people and would you see that, for first nations’ rights or first-use rights, seeing a quarantine of resources for Aboriginal and Torres Strait Islander people before the rest of the use was discussed, or is there something else? (35.44)
Virginia: Well actually, in overturning Aqua nullius: securing Australian Aboriginal water rights, which was my doctoral thesis and after the Stanner award I was able to put that into a book which is fantastic, because I really wanted people to hear a different story. And yes in the book I talk about having reserved Aboriginal water rights before everyone else, and it really makes sense because we are only 3% of the population, so we are not talking about a large amount of Indigenous peoples that need to really be resourced with water. In many other South American countries, some of those countries have 50% Indigenous people; we don’t. So it’s not going to be an issue financially. But what it is having that quarantine for everybody else’s water rights, it means that we are guaranteed. Communities since we have had the fires, across Australia, and particularly in very remote and rural Aboriginal communities, had no drinking water. Wilcannia had no drinking water, many other country towns with high populations of Aboriginal people had no drinking water. I know places in the Kimberly where a waste deposit has been put onto communities water wells sitting on top of. And they do not have water, so they really have to ask for bottled water and my problem is that where did the bottled water come from? Where was the origin of that water on Country? Whose water was that? Was it a woman’s site? What is a men’s site? Where was the origin of that water so, we’ve got to really think about quarantining our rights before irrigators, before pastoralists. First of all it think that it’s really important that the unallocated water in the National parks be provided to the Communities where those national parks are and exist. Uh I think that’s the first thing we could do. But then, you’ve got to resource Aboriginal people to actually look after that resource and to look after country. Because many times people don’t want handbacks of large national parks, because governments don’t resource them to look after them. You can see exactly in the Uluru Park management that there’s the same issue, that there hasn’t been funds put into looking after the park. So if you then throw up your hands and say well Aboriginal people can just look after it themselves, there you are, you’ve got it. They did that for years after um, 1967 and when there was also wages having to be paid to Aboriginal people across Australia, the unions fought hard for that, but they’re left with Aboriginal peoples on Country without the capacity to really deal with the mess that was left behind with a lot of those stations and pastoral companies. So we really need to have reserved water rights, we need to really take the veil off allocation language and what water is allocated. We need to look at unallocated water and what water can be provided back to Aboriginal People. Because we are not asking for anything that isn’t inherently ours, that’s the issue here. We are just saying of the laws of the times since 1788, it’s really, and as I talk about in my book, Overturing aqua nullius, that we’ve been competing for water rights, we’ve been pushed out of water rights, water holes have been poisoned to make sure that we don’t exist on Country because of sheep and cattle and farming. So we’ve really got to think about changing the way we think about these things. And governments need to change their way. Um if it needs to be bought back, let’s put those levies in place that can actually purchase water. It’s not something that’s radical. But we are not asking for handouts, we are actually asking to return to our economic livelihoods and that’s what native title is all about. So we can stay on Country, we can’t just pack up and leave when our birthright is tied to that particular country. We can’t just go to Melbourne or Sydney or Wagga Wagga or any other place that’s not our Country, um because we can’t look after it, we’ve got a cultural obligation and children really have that right to grow up with cultural knowledge as well as a degree, or as well as going to tafe, so we need to really think carefully that those are some of the things, not all there’s more, that need to be done so we can actually enjoy our relationship with water and be productive. (40.59)
Episode 2 - Native title anthropology with Emeritus Professor Nicolas Peterson
In this episode Anthropologist Professor Nicolas Peterson shares his experiences in the sector and discusses where he sees the discipline developing with Peter Bligh, former Director of the AIATSIS Native Title Research Unit.
Professor Peterson talks about the role of anthropologists in the native title process, how the native title anthropology industry began and evolved, and some of the limitations of anthropology in native title litigation.
Professor Peterson is the director for the National Centre for Native Title Anthropology at the Australian Nation University.
Peter: We are here today with Professor Nic Peterson of ANU and we are going to talk to him about some things. We are going to talk to him about the intersection between native title and anthropology and some of the things that we have got going here at ANU. Thanks for joining us Professor Peterson. Professor Peterson would you like to tell us a little about yourself and how you came to be at ANU. (0.29)
Nic: Yes, I am an anthropologist and I’ve been at ANU for nearly 50 years, teaching anthropology mainly in the faculties. My main area of research has been with Aboriginal people in the Northern Territory but I have also carried out research with the whole of the Country and more recently, I’ve become the director of the Centre for Native title anthropology. (1.01)
Peter: Thank you. The Centre for Native title Anthropology, could you explain to us exactly what is it? (1.05)
Nic: The Centre for Native title Anthropology came into existence in 2021 funded out by the Attorney Generals department which had a program of anthropology grants. The background to that probably needs a bit of explanation. When the Mabo case was decided, it wasn’t entirely clear what the content of native title was. The high court left that to the politicians. Did it include mineral rights? Did it include sea rights? Did it co-exist with pastoral leases? The governments passed the native title act in 1993, which is an administration, land administration act it started out as. And the idea of that act was to try and avoid going to Court and to solve native title claims by mediation and by bringing together the Aboriginal people claiming an area with other interests and mediating because that was cheaper and quicker. However, because the high court hadn’t defined the contents of native title and because the politicians hadn’t either; they didn’t want the responsibility of upsetting the mining industry by saying it included minerals, or upsetting Aboriginal people by saying that it didn’t include minerals, so they left it open. And instead of the cases being mediated, in the first 10 or 15 years, most of them went to court. Because it went through the courts, it established whether there were mineral rights and rights to the sea, etc. But by about 2000 most of the rights of native title were clear and so the way was set, not only for adversarial claims to be in the courts but also for state governments dealing with claims in settled Australia, that’s where the majority of the Australian population lives, by the coast, for them to have consent determinations; that is determinations that were based on a lower level of proof of Connection to the Country. But even for these consent determinations, a report still had to be produced. And that report required a number of technical features that it was shown, what was the society that held the land at the time of sovereignty? What were the laws and customs in relation to that land at the time of sovereignty? That the people who are claiming that land, are connected by descent to the people who were the original occupiers of that area. And that today they are still exercising some or all of those laws and customs in relation to land. And for that they needed anthropologists to assist them in compiling, well obviously people know what they do themselves, but in order to compile a report that was sort of by a disinterested party they needed an outsider to do it. (5.32)
Peter: Excellent, so you would see their role as sort of an impartial outsider who translates what Aboriginal and Torres Strait Islander people had, whether it was for mediation or for the legal system. When you do that work and when you produce that work, who has control of the intellectual property that is generated from that? (5.59)
Nic: When a group of Aboriginal people want to make a claim for the recognition of their native title, they go to their representative body, their regional representative body and explain to them where they want to make the claim. And then the representative body organises the research for the claim. Now representative bodies employ their own in-house anthologists but generally in order to compile a claim their hire a consultant, an external anthropologist who is generally more senior and they come in and work with anthropologists within the organisation to compile that report. And of course these external anthropologists are contracted by the organisational rep body and they have a contract and that contract deals with the IP issues which are basically controlled by the contact and the rep. bodies. (7.23)
Peter: Thank you very much. Given that you work in academia and there is quite a market for anthropologists as consultants, is there ever any ever cross over there? And do you see there being any tension between academic and non-academic anthropologists? (7.45)
Nic: Ok that’s a complicated question, and probably need a bit more background on the Centre for Native title Anthropology. So you might ask, what was the Attorney Generals doing funding The Centre for Native title Anthropology. By, as I said, around 2000, when the sort of basic legal parameters for native title were clear, the government was very keen to get on hearing native title claims and getting them out of the way because there was too much uncertainty around land and it slowed up development and it prevents Aboriginal people using their native title to benefit themselves and improve their life circumstances and one of the concerns was around whether there were enough anthropologists around to do all the work of helping write these claims. And the National native title tribunal commissioned a report in 2003 to see what the state of Anthropology was in respect of native title and how many people were around to do the kind of work and one of the conclusions of that report was that most of the anthropologists, 50% of them were over 50, so that raised the issue. (9.43)
Nic: They were a bit concerned that there probably that there mightn’t be enough and because many of them were over fifty and they might retire, were they being replaced? Um, I don’t know why it took 6 or 7 years for the government to respond to that report but by about 2010 there was this concern about the availability of anthropologists, the number was picked up by the Attorney general’s and that was the reason why they funded The Centre for Native title Anthropology. One: it was to attract younger people into doing native title anthropology reports, and secondly it was to keep those who were there working in the area and thirdly it was to run professional development workshops for people already in the area. (11.33)
Peter: Thank you, in native title it seems to me that there might be a bit of an objectivity and advocacy dimension that anthropologists have to navigate, how do you find an appropriate balance there? (11.50)
Nic: Ok I think that’s a very important question. Well as an expert witness, anthropologists are hired by the rep. bodies to compile the reports and those reports are for the courts and as an expert witness who has compiled a report, their duty is to the court and not to the people who hire them directly. And the duty to the court is to be objective and truthful. If an anthropologist is perceived as being an advocate or biased they completely undermine their value to Aboriginal people and to the Court and their evidence is largely dismissed and so as consultant anthropologists are concerned it is very important to remain objective and truthful and not as an advocate but it should be clear that the people who either win or lose a native title claim are the Aboriginal claimants, it’s their evidence that is the most important. But given, particularly when you are dealing with remote Australia, some of the social systems are quite complex, many of the people who are making claims only have English as their second or third language. Anthropologists are very valuable in helping to provide a framework in which the lawyers and the judges can understand the information that they’re getting because of course, they aren’t getting a whole social system laid out for them by the claimants on how their kinship system works or how their system of land tenure works; what they get is evidence that is elicited from them by their legal representatives and by the people opposing the claim plus the report which the anthropologists have written which offers a framework to help interpret the material. (14.15)
Peter: the legal system itself is very difficult and by its very nature a structured institution, is there any barrier that you see between that translation between Aboriginal and Torres Strait Islander rights and interests and having that recognised by the courts? (17.07)
Nic: Uh I think that there is probably two different things here. I think there is the issue of Aboriginal people becoming lawyers and barristers and the rest and of course there are very substantial number of Aboriginal people as lawyers and barristers. The other issue of, are there many Aboriginal people who are anthropologists and the answer to that is very few indeed. And I think there are lots of reasons for that; not least of all that most aboriginal people that want to get involved in tertiary education and the link, want to change things right? And they want to be involved in development projects or projects that are going to change the situation, whereas most anthropologists are involved in recording the current situation and they may of course have opinions about what should and shouldn’t happen, but that’s really the second order of things. So having described what’s going on and trying to understand the reasons for what’s going on if that’s not clear, then they may, quite separately of that be…join… become a lobbyist and I myself, worked for the royal commission into Aboriginal Lands rights in the northern territory. And whilst I was working for it, my job was really to gather information for the judge and for him to understand what was going on. But once that was over and the commission was finished, I played quite an active role in lobbying parliament, writing position papers, going and talking to politicians, which is something kind of separate from my job, my day job if you like, as an anthropologist. (19.13)
Peter: In and ideal world, a lot of, or all native title cases would be settled, what role do you see for anthropologists in a post-determination landscape? (19.25)
Nic: I think we are approaching the post-determination landscape. There are presently about 200 outstanding native title claims. Many of them, the big ones and the easiest ones, have been, the most clearly resolved ones have been resolved and often the ones that are yet to be resolved are more complicated, there are overlaps, there are competitions between groups, there are bits of lands which are in-between settled claims so they are quite difficult and slow. So what are the issues facing Aboriginal people in the future? Apart from the outstanding claims; one of the big issues is the establishment and running, efficient running, of PBCs, prescribed bodies corporate, which are the bodies which hold native title when a group, some group has been awarded native title. Theses vary, vary considerably, from PBCs that have native title rights that are very strong and may involve large incomes from mining companies, to many PBCs which are quite small and have no income at all and um and It's very hard for them to see what to do with their native titles. So one of the very big challenges, is helping PBCs, of all kinds, to work efficiently, to efficiently communicate with and represent the native title holders. Because the PBC is like the organising committee or the directors but they don’t make the decisions just off their own bat; they need to find out what the vast majority of them, there may be even several hundreds of them, thousands in some cases, of the native title holders want them to do as their representatives. So that’s one thing: getting PBCs working well and communicating well with their holders. The second is compensation. Under the native title…. There is a funny bunting noise, I may just blow my nose. *pause* yes, yes ok.
Um, the second aspect of the post determination work is compensation. The native title act allows for claims for compensation for acts that have been carried out on land, where people have native title, but only between 1975, that is with the passing of the racial discrimination act and 1993 the passing of the native title act, so it’s a very tight window. It isn’t compensation for everything that has happened since colonisation, its only since the passing of the racial discrimination act in 1975. Nevertheless, there will be lots that’s happened on land that is recognised native title, huge numbers of houses have been built, roads have been built, mining companies have opened mines so, there are many areas where the compensation claims can be made and we are only at the very beginning of that and nobody is quite clear how this is going to play out and what is required to demonstrate that there should be compensation. *clears throat*. There has been one crucial case which has been to the high court which has talked about the key issue being cultural loss. So people have to establish that as a result of an act that has been carried out between 1975 and 1993 on Aboriginal land, that their connection to Country has been damaged that there has been cultural loss in terms of their connection. But there haven’t been enough cases to really understand the dimensions of cultural loss and what kind of evidence is acceptable. And that’s something that the national native title tribunal council sorry is very much exercised sort of how come the compensation claims can be efficiently organised and achieved fairly speedily so people can get on with enjoying their native title. (25.31)
Peter: Excellent, thank you very much Professor Peterson I’ts been a very fantastic experience that has kind of documented the facilitation…. Facilitation, advocacy and objectivity role that anthropologists play and that the Centre also play in that so thank you very much. (25.55)
Nic: Not at all yeah. (25.57)
Episode 3 - Young people and land care programs with Bhiamie Williamson
In this episode Bhiamie Williamson, a Euahlayi man, talks with Dora Bowles from the AIATSIS Native Title Research Unit about the experiences of Aboriginal and Torres Strait Islander young people and caring for Country programs.
Mr Williamson shares his own experience of native title, his research on the youth perspective and how young people are currently engaging with the native title sector.
Mr Williamson completed a Masters of Indigenous Governance at the University of Victoria Canada on natural resource management and has collaborated with AIATSIS to research youth engagement with the processes of native title.
AIATSIS acknowledges that this interview is taking place on the traditional lands of the Ngunnawal and Ngambri peoples. We would like to pay our respects to the Elders both past present and to those of the future. A warning to Aboriginal and Torres Strait Islander listeners that this program may contain the names and voices of people now deceased.
Welcome to the AIATSIS native title podcast. AIATSIS is a research, collections and publishing organization based in Canberra. This podcast series has been produced to provide more accessible, legal and policy resources for the native title sector. The following discussion is an informal conversation between native title professionals and is intended to act as a short, informative seminar.
This podcast was made possible by the generous people at the Australian national centre for the public awareness of science at ANU. This week member of the native title research unit, Dora Bowles is interviewing Mr. Bhiamie [00:01:00] Williamson on youth engagement in native title, and first nations land management, Bhiamie Williamson, a Euahlayi man is currently undertaking his PhD at the Australian National University.
His previous studies, a bachelor of arts with first class honours at ANU and a masters of Indigenous governance at the university of Victoria, Canada. Focused on Indigenous governments and natural resource management. As a part of the partnership with ANU, Bhiamie is collaborating with AIATSIS to research youth engagement with the processes of native title.
Dora: Today we are here with Bhiamie Williamson, we'll start off with just more of your background. You were born in the 1980s and grew up, you said in the height of Mabo and at the inception of the native title process, can you take us through some of your experiences with native title at the time.
Bhiamie: Sure. So yeah, Bhiamie Williamson.
So I'm Euahlayi so my people come from Northwest new south Wales. My mother comes from Cloncurry up in Northwest Queensland and I grew up, up in, um, in Mount Isa. So I was born in 1986. You know, so I was, yeah, just a kid really, uh, when Mabo happened. And I remember the time being a, a kid and, and being at home, you know, the son of two Aboriginal parents, um, really heavily involved me with politics and activism in the community. You know, political conversations were, uh, norm at our, uh, dinner table, but I remember distinctly Mabo and how those conversations suddenly became, even more real and with potentially a lot more consequence.
And I just remember the, the mood, like, you know, vague kind of distant memories of, of the news and people really being glued to the news and being glued to the updates and watching all the current affair programs and, a lot of phone calls ringing off the [00:03:00] hooks. And then shortly after that, you know, being driven around to a lot of meetings in Sydney and out in Western new south Wales where our mob come from. It was a really interesting time. And being a kid, it's kind of, you absorb all of that stuff, even though you can't, don't really comprehend what's going on at the time, but you knew something significant had happened .
Dora: reflecting on that time, what effects did it have on how native title formed in Australia and has your perception shifted since being indoctrinated into the idea of native title as a child?
Bhiamie: So something that I think about a bit. Um, so growing up as an Aboriginal kid, I feel like my, uh, kind of, it's a really unique thing to grow up as a child, like in a certain political landscape in the way that the communities, our communities kind of come together, relate to one another organized govern, and kind of think about what's possible and what's [00:04:00] desirable.
So growing up as a kid, I remember the term traditional owner didn't really exist. it's not to say that it didn't exist in the way that we organize and relate to one another and the way that we exist, but the actual, you know, English term, the definition traditional owner was something that I didn't hear until much later in life.
It was more that you were just an Aboriginal kid, you're an Aboriginal person. Um, you came from certain places and you spoke certain languages. There was much more relational. The question was much more, you know, who, who's your mob, you know, whereabouts do you come from? And, and that could be associated with township with a mission with a Country, with a language group, like with a family, all of those things, like as it does now, but I feel like there's a lot more emphasis and the landscape has changed since Mabo and since the introduction of native title. And now it's very much focused on, are you a traditional owner? Are you a native title applicant? And it's kind of seen as having currency in [00:05:00] that, in that respect. So it's kind of, it's definitely moved away from just being an Aboriginal person or a Torres Strait Islander person. It's moved away from just sort of having the right to exist and participate no matter where you are and having that, uh, relationship and having that responsibility and that consciousness towards the land and seeing the land as a, as a sentient being no matter kind of who you are and where your people come from.
And now it's very much centred around know, where is your traditional Country? Are you a traditional owner? Where are you a traditional owner? and where aren't you a traditional owner as well? You know, what kind of authority do you have to talk in certain places on certain things? Whereas before I feel like growing up, it was less of those kind of barriers and it was more just of fluid existence of being an Aboriginal person.
Dora: Um, so we're gonna shift more slightly to youth involvement in native title because that's one of [00:06:00] your current research areas. Uh, can you describe how younger generations currently interact with the native title system?
Bhiamie: Native title is a really interesting system because it produces a system of ownership that is held communally and is held in perpetuity as well. A wonderful Maori scholar, um, Sir Tipene O'Regan and, and Elder, um, Ngāi Tahu Elder and statesman, he talks about, um, Maori and Iwi People, um, and relating to the Iwi corporations. But he talks about Maori people as being the shareholder that never dies. And I think that's such a wonderful way to think about native title and about communal ownership and not just native title, but just sort of native title is a construct of the West. Pre colonization, we didn't have native title laws that governed our traditional ownership. It was held, it was held in different, very different ways, fundamentally different ways.
Bhiamie: And so we just need to remember that native title is like a Western [00:07:00] construct, to recognize as best as it can and to the ability that it, that, that it is able to recognize our systems of ownership. And so we still have systems of ownership. They still exist. And native title represents parts of that, but engaging with that Western system and how it's been constructed, how it's administered and what it means for the live reality of our people. I think it's best to understand it as yes, Aboriginal people who are native title holders, being shareholders that never die. So we don't go away. In thinking about that, we really need to think about what that means for the future management of our rights, the future protection of our Country and the future administration of our groups and our corporations, which are necessary to administer native title. Native title is such a. A long process, UN unfairly long, and the lengths that communities have to go [00:08:00] to, to demonstrate their native title, to quote unquote, prove their connection is just absolutely extraordinary. And again, you know, completely unfair. And so we see community leaders and Elders coming through the end of native title processes, uh, which are very difficult, very long, very drawn out and, and riddled with conflict, just absolutely tired lay down on the bed and can't get up. Can't open your eyes kind of tired. And so there's a very real question of who is best placed to step into those roles and to manage those hard fought rights and interests into the future.
And indeed, you know, like whether or not people have the, the corporate memory of, um, of the fight that was had, how hard it was to get, remembering the sacrifices that all of our Elders have made to, to secure those rights. And that's [00:09:00] where I think young people have a very significant role to play. And in different pockets around the country, we see them already playing that.
But the work that I've been involved with has been really about, um, looking at where young Aboriginal Torres Strait Islander people have emerged into these leadership and decision making roles in community with particular regard to native title, uh, to look at how they wanna govern differently, to look at how they, the aspirations or the desires they have for their community and their Country.
Are those aspirations and desires the same or different to older generations? Do young people carry the same trauma, grief and conflict that we often see in older generations? And what kind of skills and training do young people need to make sure that they're in the best possible position in the strongest position and feel confident to assume these leadership and decision making roles in community?
So that's been my [00:10:00] particular area of interest over the last kind of four or five years in the native title research space.
Dora: You've just talked about how young people are part of that succession planning. How important do you think it is to get young people involved in those sorts of processes earlier?
Bhiamie: Uh, it's vitally important as Aboriginal people. One of our key, the hallmarks of our societies is how we learn, you know, our mode of teaching and instruction and it's role modeling. It's, it's learning by doing, it's learning by osmosis, by being in the room, listening to conversations when you're too young, to even know what those conversations are about.
It's about ensuring that young people are always present, always in the room. And we see this at, you know, native title meetings, like the- and family meetings as well, kids are always there. Kids are always around and always present. , I love going to family meetings and native title meetings, and you just see kids around playing, you know, [00:11:00] whatever, like a, a lot of non-indigenous people think their kids get in the way, whereas, you know, our own ways is like, no, no, no, they're here for a reason, right?
Yes. They might be wrap bags, but it's very important that they're here. And then you see a natural progression of some children. Some young people start to take a real interest in this stuff. And you see them start to listen in meetings, start to really pay attention, really be present in what's going on.
And whether they ask questions during a meeting, they'll definitely ask questions after. And they're the kind of people that community are constantly looking out for because they're the people with the interest, with the brains, with the, that have that kind of in their spirit, I guess whether they know it or not, they're the people that were about born into communities for certain reasons. And so, yes, we only, we can only identify those people by exposing them to those opportunities. So we need to constantly be exposing young people, bringing them along, making sure they're in the room, making sure that they're in the meetings.[00:12:00]
And then I think it provides the opportunity for, uh, children and young people to emerge into these spaces naturally. And I think that's a very Indigenous way of supporting young people in these spaces.
Dora: So for these young people who suit being involved and who are around and other young people who wanna get involved and are keen to look into it more, what are some of the barriers that they could face in getting more involved in native title?
Bhiamie: So there's a couple of very clear boundaries, uh, or clear challenges. Um, the first off is most Aboriginal people don't actually live on their ancestral Country. So most people, you know, for education, for employment, you know, for health, for a whole range of reasons, Aboriginal people tend to live in all the places that non-indigenous people live in the cities, on the coast, in the big townships, in [00:13:00] the, you know, big regional centers and that kind of thing.
But that means that because we're not generally, the general experiences are not on Country permanently means that we've got limited opportunity to access Country and to access community in the way that living on Country would facilitate. And so that presents very real barriers. Unfortunately, we can't just go out.
The common experiences that Aboriginal children and young people can't just go out on the weekend and go and visit sites and learn Country. And even the thing of like going out on weekends is indicative of another major pressure. And that is, you know, impose Western things like schooling. So when we're able to access Country is usually organized around, you know, 12 month Western Gregorian calendar.
We're usually limited to things like public holidays and school holidays, which are challenges that the old people didn't have obviously. But it does present certain challenges because it's, you know, um, are young people being exposed to the natural leaps and flows, the [00:14:00] seasons, changing the various kind of plants and animals, you know, that, that, that come up on Country all year round? No, because they're only accessing it at certain times and it's all quite rigid. Um, so that's kind of one challenge is just the access thing in that we have to navigate getting back, the pressures around getting back, when we're able to access it and making sure that the opportunities are there when children and young people are able to get back.
Cause usually it's only for a week or, you know, two weeks at most in any one trip. So that's one barrier. Obviously another barrier is financial, being financially supported to get back on the Country as well, because when you're away from the city, generally people are away from work. And so that adds a further additional pressure, you know, like poverty's very real in a lot of Aboriginal and Torres Strait Islander communities and that's yeah.
So we've got those very real kind of practical challenges that we need to overcome. But then when you start to talk about the more complex issues of young people, stepping up, participating in [00:15:00] societies that are very, that are very rigid, that are very. that that are, that are, that are very conservative, but not conservative in the way of like Western political conservatism, um, conservative in it's very difficult to get things done.
So it takes a long time to make decisions, uh. It takes a long time to reach consensus and things operate like that for a reason as well. So it's not a bad thing. It's just understanding how it works. But it also means because we've got a very rigid system and a system that privileges the voices of Elders, rightfully so, because of their lived experience and their knowledge in communities and of families, but it, what, what it does, it, it, it often create, has an effect of, um, stacking the deck against youth participation in processes like native title and just talking about Country and community governance more generally.
So it's very difficult for young people to emerge into those spaces because it's, it's the exception, not the rule that they participate. [00:16:00] The way that I think about it is it's what an exciting opportunity in the, in the histories of our people, where we're having the conversation around, what is the role of young people to respond to the pressures that you know, that settler colonialism continues to, to pose to us and to, and to throw in our faces? We need, um, a different set of responses. Young people are very smart. Young people are very increasingly well educated. Increasingly mobile. Increasingly have more access to, to, to job opportunities. A lot of young people have young families themselves.
Because of the health in our communities. It's, um, there's far more young people than there are older people. And so you look at all of these factors and they kind of lead to a very interesting conversation around the role of young people might have been this in the past, but what is it going to be in the future?
That conversation needs to be anchored in a larger [00:17:00] ideal of, you know, what's what is going to be the best thing for the future of our peoples and how are we going to one, identify what we want? And two, how are we gonna get there? And both of those involve centering the voices of young Aboriginal and Torres Strait Islander people.
Yeah. So it's a really interesting time at the moment. And it's one of the reasons why I love doing this work.
Dora: In your opinion, what are some of the ways that we can support young people to address some of these challenges like geography and job opportunities being increasingly in metropolitan areas?
Bhiamie: So the research that, um, I've been involved with has demonstrated very clearly that the, that the most effective way to engage young people in the business of native title or community governance, just, just generally and community business is, uh, just in the familial relationships. You know, it's the one that is easiest to access because it's close family. Um, it's most impactful on young people. They [00:18:00] desire, um, and have a deep yearning to be mentored by older family members and older family members could be grandparents.
Aunties, uncles, could be older brothers and sisters. Like it doesn't need to be this, you know, someone over 60 mentoring, someone under 20. That's not what we're talking about. We're talking about people with knowledge and people who are respected as senior figures in community, um, and in the lives of the young people as well.
So the familial relationships, familial mentorship is the strongest indication of whether or not a young person is active in the business of native title. And it's the strongest indication of the level of knowledge that young person has of native title. People who are mentored within the family have better knowledge, are more active and more confident.
But unfortunately, a lot of young Aboriginal and Torres Strait Islander children and young people don't have access to family members, um, you know, close family members to be able to mentor them into those spaces. And so we need to look at [00:19:00] creating additional opportunities as well, and groups are doing, creating those opportunities in really interesting and diverse ways.
We see the creation of, um, youth leadership programs, um, within community themselves, youth networking opportunities, um, mini youth conferences, those kinds of things. Um, whilst other groups are engaging young people through land and sea management work, through Aboriginal ranger work. So we know that rangering and land and sea management, it's relationship with young people is like bees to a honeypot.
Right? If you create those ranger opportunities like young people, young Aboriginal people just, just flock to it. Just come there. It's a type of work that is very effective at, at attracting, engaging and retaining young Aboriginal Torres Strait Islander people. And so corporations have identified that created those rangering opportunities and built into their positions, um, you know, training and upskilling and knowledge of native title more generally.
So we see [00:20:00] people being attracted through range of work and being trained to emerge as community leaders as well. They're just sort of some of the different pathways, certainly that I've been exposed to in the, the groups that I've worked with. All of them are effective at what they try to do. Whilst they all kind of have the, are heading in a similar direction, in the change they want to foster in their communities. They have slightly different goals and because they have slightly different goals, they have slightly different outcomes. I'd say a combination of the two family mentorship and communitywide or group-wide, nationwide opportunities, organized opportunities to bring young people back and to train them, especially when that involves employment.
I, I think that our groups need to look at both of those avenues.
Dora: you've spoken about land and sea management just then. How does ranger programs and cultural heritage and land care programs interact with the native title system?
Bhiamie: Well, it's an integral part of it. I mean, we go through the long [00:21:00] and arduous native title journey to have our right interests recognized in our Country. By those rights interests require ongoing management. A big part of native title is, um, acknowledging, mapping and protecting cultural heritage sites. So like the physical cultural heritage, the tangible cultural heritage, and that requires, you know, certificates IVs in land management.
It requires certificates in cultural heritage management. It requires people in emergency services to protect them when, um, you know, natural disasters occur. Um, it requires mappers. Like all of that is tied up with native title. It's such a fundamental underpinning of native title. And then the land management stuff is a way to activate our rights as well. At the end of the native title journey, we go right through communities, make the choice to enter into that because they see the, the outcomes as being in the long term interest of their community, of their group. But when we get those rights, I just feel like a lot of native title groups go [00:22:00] through the, the such long journey of having their rights, recognised and then sort of turn around and go, okay, like now what do we do?
It's like, well, yeah, we need to. Have that very clear direction at the start, like yes, native title creates negotiating powers, but, um, that's kind of one arm of it. The other arm of it is actually protecting our rights and the best way to protect them is to use them, to get out on the Country to manage it, to go and look at where pastoralists are clearing the land and see what's going on. Be active and disruptive in those processes, to go out and look at the cultural heritage sites. Are they being disturbed? Are they being looked after? What, what work is required to safeguard them? It requires being out on the rivers and monitoring the different fish species, monitoring their, the health of our waterways and whether or not, we have not just water, but clean and portable water as well. It requires being out and monitoring the birds that are kind of coming in and out of Country. At certain times it requires the management of weeds coming into our Country. Like it requires all of these things. And so [00:23:00] ranger of work, land and sea management work, it's like at the heart of what the native title system is all about and why communities choose to enter into those processes to have our rights recognized, then to protect our rights by using our rights. Young people are so important in that process.
Dora: Can the two, native title and land management programs like ranger programs, strengthen each other in turn?
Bhiamie: Absolutely. I think that they mutually reinforce one another. Native title should create opportunities for land management, land management protects and strengthens native title rights and cultural knowledge. So, as I said, native title is a construct of the west, obviously, but it recognizes systems and structures that exist in our world. But those systems and structures that exist in our world. Things like the knowledge of our plants, the knowledge of our families, the knowledge of our ancestors and ancestral beings, the knowledge of how the Country was created. All of that stuff requires nurturing. It requires safeguarding. [00:24:00] It requires passing on. Rangering work is a way to do that. So I see rangering work as both supporting as like an investment in our communities and a protection of our rights. We need that to prove native title, but you also need that to protect native title.
Australia's a very young country because it's very young, it's got a very young legal system, I guess. And it's, it's a legal system that continues to change, continues to evolve. And so being strong in who we are having, uh, populations of young Aboriginal and Torres Strait Islander peoples who know their Country, who are well connected, who are strong cultural beings and who are active on their Country and managing their Country.
When the Western legal system is ready to recognize more of our rights, they will be best placed to take advantage of that straight away. We don't know what opportunities are gonna open up to us, but we do know that whatever opportunities, they gotta be leveraged of our knowledge and connection to our Country.
Investing in young people, strengthening those connections will have us in a really strong place to take advantage of whatever we can when the time is right.
Dora: in your research, you identified independence as one of the four key aspirations of First Nations ranger groups. How do you see independence being gained at the moment and how do you see some communities working towards that goal and continuing along that dimension?
Bhiamie: Yeah, sure. So research that I did with ranger groups, they all wanted to be independent. Now independent means. I should qualify that, independent means not being tied. For the context of the range groups that I was working with, they were all tied to larger administrative bodies. Some were tied to organizations like the NLC, some were embedded within parks and conservation service structures.
Some were tied to really large Aboriginal, uh, like community councils and those kinds of things. So when I spoke about independence, spoke about them being independent from those larger administrative bodies, because those larger [00:26:00] administrative bodies, the Rangers felt that, that it slowed down their work and that they were big organizations that didn't really understand the business of rangering or nor the, the needs and challenges of the ranger groups themselves. And so independence in that context is almost like. Ranger groups being their own organizations and running their own business, administering their own grants, employing their own staff, taking care of their own WH&S requirements, um, having their own travel policies and vehicles.
So that that's kind of what independence meant. It's more of a administrative independence and organizational independence. And I think that generally still holds true. That they can and do want to be independent, but in order for them to be independent, there's a large question of one capacity and two resources and funding.
And it's kind of like chicken and egg stuff. Like which one of those comes first. If they wanna be independent, they need administrators. They need, um, an like an accountant. You need [00:27:00] people who know HR, you need all of that stuff. But the resourcing is really interesting because a lot of funding for ranger groups throughout Australia is it's very heavily dependent on government grants, both at the federal and state/territory level. And those grants are really important because they kind of represent the vast majority, the incredible bulk of the money that employs rangers, but to be independent will requires not necessarily turning away from government funding.
Absolutely government has a responsibility to support these groups. These groups contribute to very important parts of Australia's national reserve system. They maintain landscapes, conserve native animals, reduce carbon. They do all of this stuff, which is in their national interest. And the nation should recognize that by providing ongoing funding, but they can also diversify their funding.
And certainly a lot of groups, it's something they're very active in trying to do, but different groups do [00:28:00] it more or less effectively. So in the north, we see some really large scale, well organized ranger of groups that do cultural burning, do large scale kind of hazard reduction, burning. They're able to measure the amount of carbon they're sequestering by burning early. And so they use them carbon credits to sell, to have partnerships with private companies, really large multinational companies pay them for their carbon credit. So they're carbon neutral companies. So that's like one way that groups are diversifying their income. And that's been more or less successful for different groups. So some groups do it really well. Some groups unfortunately, are completely locked out of it and everywhere in between is where groups are at, but there's other opportunities as well. In Southern parts of Australia, we see a lot of collaboration between Aboriginal land management groups and private landholders to do things like cultural burning, to safeguard assets and whatnot.
I think it's a really interesting fee for service model where they could come in and have a look at the land, have a look at the state of [00:29:00] different stations or properties and sort of say what needs to be done. And then those private landholders paying them for that. I think there's a very interesting and live question around insurance and whether or not cultural burning, if it's reducing the risk of, of infrastructure and assets on someone's property, is there an opportunity to partner with insurance agencies have that work recognized getting insurance credits?
So there's a whole range of work and a whole range of income streams that groups can look at to diversify their income, to be independent. And we're kind of in the middle, or, you know, maybe you're not even in the middle, but kind of, at the start of understanding what those possibilities are and where that, where that income might come from.
Dora: So you've also done research with First Nations, people in Canada. What did researching internationally with a different group of First Nations Peoples tell you about the Australian experience of land care management? \
Bhiamie: So I've studied in both Canada and the United States. I work with First Nations communities in both places. When I first went, I think I was quite naive. So we hear so much, uh, mob up in America they've doing so much better. They've got treaties. They've got it going on. They get a lot of money and they've kind of got to certain degrees, uh, self governing powers and relationships with their states and all this kind of thing.
And most of that's true. Does that mean it's translated into a better living experience for First Nations Peoples? That's a very interesting question with no easy answers. Certainly when I went over there, um, to yeah, very much learn and connect. And it's just really interesting because this idea of one group or groups of people, different nation states, you know, Aboriginal people in Australia, Native Americans in, um, [00:31:00] the United States, you know, First Nations people in Canada.
It's too simple and generalized to sort of say who's doing it, quote unquote better. It really depends on what you're talking about. So if you look at sort of performing and visual arts, Aboriginal and Torres Strait Islander people in Australia do really well, are very present, um, and have great opportunities. If you talk about political organization and the lobbying powers and income generated purely from a dollar value, you know, you can look to places like Aotearoa or New Zealand or yes, the United States in particular. If you're looking at communities with really strong cultural ceremonial lives, yeah, First Nations communities in Canada are probably places that you can go and look at. And so it really depends on what you're talking about.
What, what kind of area or sector that you're focusing on to then sort of look at who might be further along the journey of revitalization. [00:32:00] So looking thinking about cultural land management or including water management, Australia are leading in no uncertain terms, Native communities, Indigenous communities, all around the world.
Look at Australia, look at the amount of land we have as possessing our rights and interests. The amount land management programs we have. How highly developed they are, how many people are employed, the number of grants are available to us. The number of programs we administer, the amount of land and see that we manage. All of this stuff it just blows their collective mind. How well, and how far in front Australian land management and ranger programs are colleagues from Canada, continue to visit Australia to model, to look at best practice to then take back to Canada and wanting to develop their own guardianship programs over there. And we don't give ourselves enough credit for when we do it well.
And in terms of land and sea management and ranger of groups, we are the world leaders. Is that to say that what we have is sufficient, that we don't have a lot of work to do, and that it's perfect in and of itself. Absolutely not. It's deeply flawed. It's incredibly under-resourced and there's still more opportunities than are being realized, many more.
And so it was really refreshing to go overseas to learn so much, but also to, to learn so much about our own people. And about the circumstances of our own people across the country, all our different mobs. Um, I think about going overseas and studying and meeting and, you know, developing friendships with, and learning from First Nations people in North America.
I see it as kind of almost like giving me a third eye to see with you can come back and you can see things very differently. The things that we don't question, you can come back and question it because there, there are things that, you know, the circumstances are so different and there's a lot of power in being able to see with the third eye.
You can see things that other people can't see. You can see both what's there and what's not there. And start to [00:34:00] understand why things are the way they are in different contexts. So a lot. Co-learning to happen still across the oceans, but it's a wonderful community of Indigenous people to be plugged into.
And there's so much strength, um, from all of us coming together and I wish Aboriginal and Torres Strait Islander people in Australia had more opportunities to participate with our Indigenous brethren.
Dora: I think that's a good note to end on. I think that's a, a happy note, a inspiring note. So thank you for coming and chatting with us today.
Episode 4 - Who's driving our bus? not us! Native title and cultural heritage management in Australia with Dave Johnston
In this episode Archaeologist Dr Dave Johnston discusses cultural heritage protections, consultative archaeology and the return of native title materials with Dora Bowles from the AIATSIS Native Title Research Unit.
Dr Johnston discusses the current state of cultural heritage protections and how it interacts with consultative archaeologists and traditional/cultural knowledge, and shares some personal experiences and perspectives on the sector from his 30-plus year career.
Dr Johnston is the Director of Aboriginal Archaeologists Australia and the current chair of the Australian Indigenous Archaeologists’ Association (AIAA), the latter of which he co-founded in 2010.
AIATSIS acknowledges that this interview is taking place on the traditional lands of the Ngunnawal & Ngambri Peoples. We would like to pay our respects to their elders both past present and to those of the future. A warning to Aboriginal and Torres Strait Islander listeners that this program may contain the names and voices of people who are now deceased.
Welcome to the AIATSIS native title podcast series. AIATSIS is a research collections and publishing organisation based in Canberra. This podcast series has been produced to provide more accessible, legal and policy resources for the native title. The following discussion is an informal conversation between native title professionals and is intended to act as a short, informative seminar.
This podcast was made possible by the generous people at the Australian national centre for the public awareness of science at ANU. This week, member of the native title research unit, Dora Bowles is interviewing Dave Johnson on return of native title materials and cultural heritage. Dave Johnson is the director of Aboriginal archaeologists Australia and the current chair of the Australian indigenous archaeologist association, the latter of which he co-founded in 2010. In 2014, he was awarded the Sharon Sullivan national heritage award for his outstanding contribution to the indigenous heritage environment and his continuing influence on practice. Mr. Johnson has made great contributions to Australian indigenous archaeology over the course of his career as a world leader in the field.
So Dave, what inspired you to get involved in archaeology?
Well, hi, Dora, it’s lovely to be here. Um, and thanks for inviting me. What inspired me to do archeology? Well is I grew up in a lighthouse. I'm from an adopted family, I’m part of the stolen gens. And my beautiful family Trev and Kath Johnston adopted five kids, four of which indigenous. Fostered many over the years. My dad became a light housekeeper in the early seventies- So it's a little boy's own story adventure, my career and life, we didn't have much to do in the lighthouses. So I, you know, fought with my brothers, fished as much as I could and, um, had an interest in exploring the caves, reading history. And I have developed this lifelong interest of, um, uh, of history in discovering the past in that sort of sense.
And at 11, and I say this story regularly, is that, I went up in my cowboy outfit and said, I'd been exploring the caves, this is up at, up in the Torres Strait. Mum was an English teacher by trade. So, and I did correspondence in school there, all my, my primary school. And she said, well, maybe you wanna be an archaeologist. And I went, oh, what's that? And so being a good English teacher, she said go and check it out in the encyclopedia. So I raced over and dusted off the 1958 encyclopedia Britanica and read what archaeology and archaeologists do. Very Western one, I thought, oh yeah, at 11. So I threw in my cowboy outfit. And I stole one of my dad's trowels and that was the start of my career.
And, um, and I studied onward and that, and made the marks wherever I went just to, to do that. And then I had a wonderful career at ANU, then went to London university, and now I'm back towards the middle of my career doing starting my PhD on community archaeology. It's called in one place, many stories, Australian indigenous community archaeologies from within.
I'm doing a charter of as, an Australia's first indigenous archaeologist, about how archaeology can be done with their aspirations and leadership of our communities affecting and, and having meaningful archaeology, not a very Western way of doing it as being the centre and we being the subject reversing it.
What led you to found the Australian indigenous archaeologists Association?
Oh, pure desperation. Um, no, I, there was a number of colleagues coming through. We were a cohort and I'll say this, our, our great professor emeritus professor Isabelle McBride from the ANU had a number of indigenous students who, when we started and I started at ANU in 1986, there was only five, six indigenous students.
And, a few who were doing anthropology and arc. Um, I came through as the first one with my honours being a qualified archaeologist in 1989. Um, it was a, my great uncle colleague, Ronnie Herron came through, did his BA at the same time, but I had my honours, which allowed me to be, this is irrelevant, but we called the Australia's first indigenous archaeologist. Cause that was my qualification at that time. And so we went through. Realizing, there's not a lot of us. We came together discussing, you know, the range of issues and threats to our sites and treatment of our peoples and ourselves when we stood up. So we thought, look, there's the Australian archaeological association, which I'm still, you know, bit member, but it was self-serving.
It was horrendously as it is still today. So we set up our, uh, informally, our Australian indigenous archaeologists association. I had to fund it. We did. So it's not, hasn't been a, you know, it's not a major happening, but we just rather, when we have issues, just discuss, like Juukan Gorge, and oh my God, we're literally living in a white racist country, how to deal with all the range of issues that our communities face. We have so much responsibility and, um, every week I'm getting called by communities to help protect sites. So much you can do, so having an association and leading forward. So where I'm at now with my PhD at the ANU we're setting, formally, um, at the ANU. And basically I'm gonna hand it over to all the young ones coming through. I've been doing this gate gig for 35 years and, um, it's exhausting, you know, it's also getting sponsorship and where I can't, if times where I've been, you know, I'm banned by every mine in the country. So sometimes I'm like sitting there, you know, broke as a stick, cause I can’t get a job, there are other times.
I'm, you know, so that's, that's boom and bust, feast in famine, like anything. But I've now and accepted a sponsorship for our association and we're having a big year by the wonderful Quakers hallelujah. And, and bless the Quakers. I'd rather that than Twiggy or, you know, Gina. Um, not that I've been actually asked by them, but, um, you know, you've gotta have some morality and, um, hallelujah.
So we're gonna really move forward. We're gonna have our first indigenous arcs association, so we're moving forward now. So it's taken a while, so that's why we've set it up. I'm gonna pull back and let the younger ones come through and, and, and lead us in the future. And I'll be in the background and take on particular projects that I wanna fight in. (6:48)
why do you think it's important to have Aboriginal and Torres Strait Islander people in the discipline of archeology?
First quick answer, because it is our discipline. It is our history and heritage. So we need to be involved in that. I mean, let's be the teachers and presenters of our full area of knowledge. Not through a textbook by someone else where we are the subject. Um, plus we, we have so much to offer. That's what I'm saying in archaeology, having indigenous people like myself as archaeologists teaching, there's a lot that's in the textbooks, but there's a lot that isn't. (7:32)
And you know, if you're gonna have a full understanding, why not rather than being the subject, the subject being the teacher. um, and we have so many different language groups, in this discipline of archaeology, we've got, you know, 700 different language groups. You know, my view is a collection of a few and working in this industry for a long time, but there are many, my younger indigenous arcs will have different view and their knowledge and life experiences.
So I think we have so much to give and to actually make what a discipline of knowledge on indigenous Australian heritage and history, can be expanded tenfold by our inclusion- which is a rights based thing as well. But just the fact that what we can bring at the table, not as the subject, but as the actual expert. (8:19)
During the 1990s, there was a vast amount of significant archaeological, anthropological and linguistic material gathered in the pursuit of native title. What happened to all that material?
So where's this material. This is the question, and this is also the problem. It's all owned by the native title bodies who are all white running and, the problem we have now is, well, who owns that? It's been an industry and look at who owns it. We have the white lawyers. We have the white anthropologists who are up top of the food chain, and we are still the little subject down the bottom. (9:30) We're being owned controlled and look at, look at the arrogance of these anthros and lawyers when they speak and sit around the table about us. We've lost the we've lost control, and we've given them all our knowledge kids. It's time we get all our Elders together and demand this material back and set up our own native titled bodies without all these corrupt anthros lawyers and the cartels, which I'm gonna talk about that exist certainly in Victoria. And if you look at the same players across the country, as I do, cause I work nationally, you see the same players poking up influencing heritage reform, same anthros, same ones setting up an agenda- we’re puppets to a native title, puppeteer master, and it's all non-indigenous. (10:59)
I guess I'm not the expert in the native title area. I see it from a far working with many communities, hundreds, and I've been involved with many native title cases and currently am in four involved, as a now an elder in those communities who I've worked as a, an outsider, um, and adopted into.
So this is the question. And then it's, it's actually a serious one. We all, as indigenous Australians need to ask. And actually come together and ask, not with a native titled body. This is our material. I was, I've been around since the start of native title- in fact, before. I've seen where it is today and everywhere I go, I've seen the impact, the detrimental impact native title has had.
I've also seen the benefits. Um, there are many, it's a complex one there, but what I do lament is the fact that these Non-indigenous- it's, it's created an industry that it's not ours and we are bit players by, well, we're the fodder feeders, bottom feeders if you like. We have white anthros and lawyers throughout the system, registrars who are the most arrogant of the lot.
Then we have all the white anthropologists of all ages and they did come with a bit of a baggage package before. Look at AIATSIS when I started here in 1988. Ooh, there's a few still here. I think. Um, we don't own our information anymore. Folks. We, we have been there giving our information always. We have these superiors, the lawyers who oversee it, and there's an industry, you see them all sitting around talking about our, our anthros, and I've seen the same anthros travel around the country.
And I know there's a collusion between the native title industry. You see it in Victoria, and I'll talk about that. But at the end of the day, we've scrabbled and fought to get our rights in a white freaking system belted down by Howard into the 10 point plan to, you know, get shackles, you know, little crumbs off the street. And then we find among each other, and we're adjudicated by the great white anthropologists. And then by the great white lawyers, they're all making a fortune and it's an industry and they're not letting any black fellas- how many black fellas working in native title law?
Dr. Val Cooms who I know you're doing the podcast with, great friend and colleague. Um, this is the only indigenous person on the, on the native title tribunal. (13:53)
Now that's saying something. And the state of the environment? But what about the state of our knowledge that we've now gifted? The anthropologists have worked to under a Western system, and we know I'm telling how corrupt the process is being puppet makers and then our great judges going, “oh,” They're like our, I mean, what the, what happened?
It's like our, our ancestral Dreamings checking on our stories. Where's it going? Oh, back to the archives that are owned by, not us, with the current government and corruption. We've seen of the take of our governments, both from the mining industry, the development and how the Australia's indigenous heritage legislation is being demolished so mining and boom can flourish. In that environment do you want your sacred knowledge to connection to Country to be owned by these same players? And that's exactly what the state of environment is. I gave a lecture here in 2003 with Linny Wallace, fat cats and stray kittens. And that was about the consultancy heritage industry about and us being the stray kittens and the fat cats. Well, this is the same here, but with the it's it's more diabolic. We have given our information, our knowledge connection, and it's being adjudicated and owned by non-indigenous discipline or an industry that has grown fat and it is not about us. (15:24)
And therefore the ownership we say to all communities, Hey, let's get together. Let's own our heritage cause we do. But now that we've given it over to get the little shackles of native title that we're doing, I mean, here's the latest one is the NIAA is now making a decision and assessing communities ratings on their PBC capabilities.
They set it up. we know all the PBCs fail because they haven’t got money. They're not trained. And now we've got them doing a rating to say, Well, mate, that's the best job creating business for white fellows I've ever heard! this place, this native tile process that sucks. It is out of date it's. It is so misogynistic, so racist and we don't own our own material anymore. In a nutshell. (16:14)
why is the ownership of our material important?
Basically because it is ours. It's who we are. It's our emphasis of it. The storytelling of it from the various communities, it is ours. It's also our, you know, our signature, our statement of who we are in this country. It's very important that we don't just hand that over or allow it to be abused, uh, and manipulated which this, our governance in this country shows particularly in minds of boom or periods of greed by non-indigenous governments.
So we need to be very mindful of the ownership of that, for our kids' future. We don’t need- My great grandchildren, I'm stolen gen and I work with communities so I have my knowledge base now and lived experience, but all our elders who have that direct connection over the years, we as current custodians, don't want our grandchildren be going to a white anthropologist or, or a legal fraternity to, to gather our information and oral histories. It's ours. (18:50)
We've, allowed it to be, uh, recorded and understood, and unfortunately managed, known by non-indigenous who have a reputation in this country to using or abusing indigenous knowledge peoples for their own benefit.
Uh, why give them the key to our, you know, we just got, it's like the Bush mechanics here. We just made a car here. We'll give these white fellas a key because they're our master. You know, bugger that. Enough of that. It's our knowledge, but it's, I'll tell you what, after going through the Abbott era over the last thirty years, trying to be a heritage manager. I've seen how our government's corrupt and have been abused by the mining industry and the Murdoch to this right wing agenda of making money, men and greed, white men and greed, misogyny. Where's the, the tick list that has done so well for indigenous Australia through our handing over our knowledge and gifts. (17:19)
Come on. We've made careers out of it, but not only the old anthros who used to work here at AIATSIS and arcs. And for years. But now we've got a whole new industry, that's also, when you see it, as I have it's affected and influenced by government in a mining boomers, area, you'll see who gets native title, who doesn't and the powers that play slightly corrupt. Hmm. I'll leave that to you. (17:44)
If a community had gone through a native title determination and wanted to get back their native title materials. Is there any procedure for that?
Well, this is the question and I don't know, except here, if I've got my Birri Gubba stuff here they don't want it to go to a native title body.
I think it's time independently, that our communities come together and have this discussion and debate. Let's get ourselves not with the, the industry owning us, funding us. Let's stop being little, sit-down money, take the money in, yap yaps. Let's actually have ownership and let's make a decision and let's get our information back. An independent body, not government sponsored. There's too much corruption. Not, uh, institutionally educational ownership. It has to be indigenous owned from that region. In fact, I would, I would say every community, you must fight legally now, tooth and dog to get this information back because you know, in 50 years it gonna be hard.
It'll be owned by elsewhere. It's a modern world. Our kid's evolving up in a multicultural Australia, which is wonderful. But you don't give the keys to your house now to someone else to be your guardian, um, of your future. (20:01)
You've spoken in the past on the importance of protecting significant cultural heritage sites. Is native title able to contribute?
Yes. If you don't have a corrupt government, that's sponsored by the media and, um, mining industries. Yes. I've had a career which I'm devastated. Now. Look, I love my career, except that I realize. Every 30 cases I've taken on the mining companies, every everyone else, or for whatever, I've been fighting an uphill battle cause it's been corrupt. I've been getting myself shot, knowing that there's a system that's been based and designed around dumbing down of heritage legislation, reform, and native title that I process now that I see is puppet controlled to benefit governments, certainly in Victoria and other areas.
I mean, that's, that's human nature. Um, In terms of justice, uh, in terms of, you know, right procedures or ethics. No, that's all out the door. Um, so native title has allowed some communities to stand and represent in those areas where you can have, uh, you know, future acts and rights for mineral rules, et cetera, but that's not on the Eastern states.
And, uh, where I often work mainly work well only work. And, um, I see, therefore the corruption that's come that does come in in terms of, subjective manipulation. And, uh, in Victoria, which I'll raise with the Boon Wurrung case, which is gonna blow it all out of the water currently, where, um, where there are cartels between the state government, first nations, um, picking and choosing who they choose.
In your eyes. What is that native title process?
Well, there's a lot of white fellows out there. If I shut my eyes and think, well, I don't see many black fellas and I see a lot of manipulation.
I see a lot of cronyism and I see an industry made of white fellas telling black fells. We need to change that. On a positive native title has also cemented in areas rights for the Traditional Owners groups. Wonderful. That has impacted on fighting for heritage rights. Although we see in WA all these secret agreements, you know, Juukan Gorge been blown up, but we don't know what agreements are being made, who signed off from what.
Yeah. So where's the transparency? Doing the Boon Wurrung case now with versus the state who've, you know, actively tried to fight Auntie Carolyn Briggs and knock them out, for the last 10 years I've been there. Um, so I brought our teams in to help fight this corruption. the state of it is so manipulative.
And so self-serving for a, for a government and an agency that you kind of wonder. Is native title relevant anymore? I think we need to have an independent review, a Royal commission into native title, and it's management.
It can be difficult to understand for someone outside of the industry, but can you take us through the relationship between consultative archaeology, native title and mining?
This is my life story here, but let me do it in a few words. Um, look very corrupt, horrendously corrupt. I mean, our governments have been sponsored by the Murdoch media lobbied in terms of the story, you know, that's why we had so much, uh, negative discourse in indigenous anything, you know, you know, elsewhere has an indigenous archaeologist fighting for rights- I should be a hero. I would, well, I like to have been, but I'm a, I'm a, I'm the scum of the earth everywhere I go by consultant archaeology. They fight for mining industry. Governments are saying who accused of dumbing down our heritage legislation over the years to, to appease the greedy well it's fact. Have a look at it.
So if you get smashed, so the relationship should be such that it, we have fair laws and we did from the early eighties onwards, and then, sorry, from eighties, and then from the Howard era and the introduction of the EPBC act, dumbing down legislation, it was been a white passage trickery.
This is a bit of trickery, you know? I mean, it's still there. That's we black fellas just need to open our eyes and say, “Hey. Enough come together and stop stamp out, take to court fight for our rights,” because our rights through our oral histories have been handed over. Our heritage is being blown up as we speak.
Um, it doesn't get much worse except when these white fellas become black fellas. Um, well they are now because they're picking and choosing who they're choosing for their native title support system. What arrogance. (25:16)
Where do you see cultural heritage conservation going in the future? And what do you think would help us get there?
Well, we've gotta come out of the sewage pit. Um, that's where we are now. Look at our legislation's being dumbed down. The Commonwealth as an Commonwealth agency. And I say this after Juukan, I did an ABC interview is tha,t we have had a Commonwealth agency, that has with an EPBC act changed the entire Commonwealth responsibility to look after Australia's heritage collectively.
And it's all ours. And I argue that Australia's indigenous heritage is not only ours. It's all Australians. The government has an obligation to educate people. So we all value our shared history. We are a multicultural country, indeed. And why not use the tree roots of indigenous Australia for 60, 80,000 years as a bringing together caring for country, caring for self, caring for our future, having the moral, and ethical obligation to have leadership for our children's future.
Hmm, that's a good statement for a government, but like, no, we've dumbed it down. Treated like shit. Allowed this continual racism to appease the mining industry and have a, now an industry of native title that is funded by the Commonwealth. Have you seen the relationship between the minerals council and those involved with the native title process?
Have you seen that relationship with the minerals council, the native title players in the heritage reform agenda? That has been sponsored by the Commonwealth. Those who've also been responsible for the dumbing down of the legislation, these secret agreements that no one knows about the native title between industry and that.
Oh, we don't know. We can't tell it's, you know, you know, there's no transparency folks, but we've seen an Commonwealth agency dumb down the heritage legislations allow responsibility to Maverick states, look at WA you know, and now we're going, oh, look at those evil Rio Tinto. Hang on folks. We've not dealt with black lives matter here in Australia.
We had the COVID, but at that moment, when the rest of the world, the rest of the world put their eyes on us, WA had the, you know, hard hat and, uh, steel caps on the neck of Aboriginal people over there, digging up their graves and blowing up their sites under the auspices of a Commonwealth government. You know, it was the stakeholders of Rio Tinto who got upset about what was happening and made internal change there.
But let us have our Commonwealth agency be good corporate citizen and look after and respect our indigenous peoples, our heritage and not blow up our sites. I mean, this is not a new story, but now we've got it exposed folks. What are we gonna do about it? We know our governments have been corrupt. We know it's been racist.
Do you think the native title process is perfect? Let's do something about it, folks. And, and it's up to us because our white fellow won't do it.
There's a lot of innovative and deadly work going on by Aboriginal and Torres Strait Islander communities to protect their own cultural heritage conservation. Do you think the answer lies in disengaging from government in this way?
Yes, because a white fellow won't do it. I hate to say that's my father-in-law's book, Kevin Gilbert. Um, and I thought, geez, that's a radical black thing. And I, but I look at the history. Look at the report card. Let's do an audit. Let's do a state of environment report that is honest and have some transparency.
When you have a Commonwealth agency that oversees the dumbing down, allowing a boom, and then you realize like being the people in my era. Oh my God, we've been fight. I've taken 30 mining companies on, over for direct destruction of sites and I'm banned. I can't get on a mine site in Australia. Imagine those conversations they've had, but when you've got an agency sponsored by you know, um, the mining industry, if Twiggy can fly in the Chinese ambassador to a government meeting unannounced, you know, there's a state of our play. Um, so we we're getting smarter. We are smart, but we now have to be strong again. And take back our heritage, our dignity and challenge those who are destroying it for their own personal greed.
That's not caring for country. We can't keep going like this. We, we are, we are, have survived on this, this, this planet, this country over millennia. We have some skills and, and understandings connections to ourselves and this country that you know, would benefit the rest of the world, particularly now, where we're seeing the impacts of climate change.
We have to give hope to our future and indigenous Australians have the knowledge connection and the will, knowing that we are from this country and that we have a cultural obligation to, and to lead into the future, to allow our children to have a, have a life. Uh, and you know, as ours, those skills I think, and the knowledge can be shared with the rest of the world of the rest of the world would listen, but we can't package it up, hand it to someone else and then run around and go, Hmm, I've got no rights.
We have to fight for our rights. We always have. And we always will. (30:27)
Is there anything else you wanna touch on before we go?
Look there is. There is a lot of hope for the future in that as people like yourself Dora and as we're coming through younger ones coming through, we need to use the Western system with our Western education, with a strong indigenous background and sense of place. We do need to all work together. And I've, I have spoken about, you know, black fellows, white versa, but we all my mantra always is that we have to come together.
We live in this country. It's our indigenous heritage shared, that can bring us all together. But we do need to change our current governance forms, realizing that it is corrupt and we need to really given them where we are at we've they've taken us to the brink, uh, environmentally. Um, it's gonna be some tough years, but our sense of not being special we're here.
We got a phase, we got a duty obligation, a custodial role, and, um. Humanity has the ability to come together. And I think indigenous strains can lead that to ensure that we, you know, reform in our governance, nationally, our heritage legislations, addressing our crisis, that we are having climate change particularly.
Um, you know, we've got serious war impacts coming ahead, but I do have hope for the future, an indigenous knowledge sense, and collective, um, humanity of minds of good minds and good people coming together will allow solutions. But we have some very basic ones about having transparency in the governance in, within this country.
All right. Sounds good to me. (32:12)
Thank you for listening to the AIATSIS native title podcast. If you're interested in learning more about the topics discussed in today's episode, please visit aiatsis.gov.au. This podcast, featured interviews and production by Dora Bowles and sound edited by Barton Staggs special thanks to our esteemed guests and to the people at the Australian national centre for the public awareness of science at ANU.
Next week, we will be interviewing emeritus professor Jon Altman on the economics of native title.
The views expressed in this podcast are those of the speakers and do not reflect the views of AIATSIS.
Episode 5 - Native title and the economy with Emeritus Professor Jon Altman
In this episode Professor Jon Altman, former director of the Centre for Aboriginal Economic Policy Research (CAEPR), talks with Dora Bowles from the AIATSIS Native Title Research Unit about the Aboriginal and Torres Strait Islander economy and how that interacts with the native title sector.
Professor Altman shares some of the findings from his research and explains his understanding of the Timber Creek case in 2019, the First Nations’ economy and the potential for PBCs to affect positive economic change.
Professor Altman was appointed the director of the Centre for Aboriginal Economic Policy Research (CAEPR) in 1990 and he held that position until 2010. He has authored a substantial body of work regarding native title during his tenure.
Dora: We are here with emeritus professor Jon Altman. Would you like to start by telling us a little about yourself?
Jon Atman: Erm, sure um. Well I am somebody who has had uh… a lot of their life spent in, um, universities, um. With much of my work focused on applied Indigenous economic development issues. Uh… I came to Australia, uh, from New Zealand uh in 1976, uh, to work in the economics department at the University of Melbourne. Um I befriends some Aboriginal people, uh in Melbourne, um, including one student in Alice Springs who is now deceased, um and I got uh… Coming from New Zealand and having done some um, previous work, um as an aspiring development economist in the Pacific. Got very caught up, um, in the whole issue of, um, what was then referred to as Aboriginal development or underdevelopment in Australia. And you know, as a young economist um, I was very captured I guess, by um, by what I saw as um, the gross injustice experienced by Indigenous people. Um, and in 1977, um, I participated in a study of Indigenous Australians um, and um, I guess I’ve never really looked back since then. So I guess if my maths is correct um, that’s been about, um, 43, maybe, maybe 44 years that I’ve worked on Indigenous development issues, uh, in Australia. (1.58)
Dora: okay… At first glance native title might seem like it would yield numerous large economic opportunities for communities, in your experience is this the case? (2.10)
Jon Atman: um, look native title, um, is a very very, complex, uh form of property um. And I guess if I could take a step back, uh, from when I first started working in this area in 1977. The Aboriginal Lands Rights Act was passed, uh, as commonwealth law for the northern territory. And that law gave, um, Aboriginal Traditional Owners, uh, inalienable freehold title to land that was referred uh to as unalienated crown land. Or uh, land, um, you know? That was held uh, by the Crown or you know the colonial settler state. And it was recognised that if Aboriginal people could prove traditional ownership over that land, or if that land had been exclusively reserved for them, um, then it could be given back to them. And um, I guess, um, I’m just prefacing your question by saying that, um, by the time that the high court made the Mabo judgement um, in 1992, uh, we already had uh, over a decade and a half of land rights uh, in the northern territory and across extraordinarily large parts of the northern territory. Um, and one of the things that was very apparent from the land rights movement in the northern territory and subsequently into the uh, Pitjantjatjara and Maralinga lands in South Australia, was that Indigenous people uh, could get back enormous uh, tracts of land um. But much of that land had, and in terms of the capitalist economy a very low commercial value. In other words, it was available for aboriginal claim and aboriginal ownership under land rights law because it hadn’t been colonised or-or settled by uh, non-indigenous people who you can represent as you know... co-co-colonisers, settlers or invaders. You know there’s various ways that they- these people can be interpreted. But uh, these- these, um, lands you know uh, that were generally remote, off- often in desert Australia, uh, had pretty low commercial value. And so they didn’t provide an optimal automatic guarantee that uh, indigenous people would be able to uh, you know, develop those lands to improve their, um, economic situation. You know, in standard economics, um, you know, well-being, or production is a function of human effort or labour, uh, land and um, capital. And uh, while people got back lands, they did so on the basis of tradition and arguably uh, you know the land provides opportunity to uh, revive a pre-colonial or pre-contact form of economy which uh, was a hunter gatherer economy, um, and it doesn’t necessarily um, allow one uh to establish a competitive economy in a capitalist world system. Um so that’s um, a very long preamble to- to native title which- which when- when it was introduced uh, with the native title act in 1993, as a legislative uh, or- or statutory or parliamentary response to the Mabo high court judgement, uh, that recognised that forms of native title existed on the Australian continent pre-colonially, pre- British arrival, or invasion, settlement or colonisation. Um, you know, Indigenous people um, had forms of uh, native title and that included not only them having use rights over the land but also having forms of political authority, of jurisdiction over tracts of land. Now, you know, Indigenous political organisation, um, it was generally very localised, um, but nevertheless you know, it was belatedly recognised in 1992 that the fiction that Aboriginal people didn’t have forms of land ownership and land governance was just a fiction – you know captured in that term terra nullius. And- and- and- of course, you know, this threw the whole, you know, settler-state society into a lot of confusion because what would become very clear is that, um, you know, that Indigenous forms of um, land title um, had been, you know, illegally alienated from its rightful owners. (7.48) Um and so, suddenly the question came up, ‘well um, what do we do about this?’ And the first thing that the native title act did- and it’s really important to recognise this, is it validated, you know, the expropriation or the grabbing of Aboriginal lands by colonisers, um, except in situations where land hadn’t been alienated or privatised um, and so, in much of remote Australia, like with the earlier land rights movement, there were large areas of that that were, uh, available for claim. And uh, Indigenous people under the native title law that was passed in 1993, uh- could- could claim land, uh, if they proved um, either to the court in an agreement with the governments which had land owning authority through what are called consent determinations, uh, that they had a continuity of their customs and traditions and that they had also maintained connection to their lands. So native title gave groups uh, land back, if they could gain a determination, but that land was firstly, inalienable, in other words those groups couldn’t sell it, if you like, they couldn’t sell it to make money. Uh, that land was held by, o-o-o-on a communal basic by groups, with a corporate institution created by native title law called Prescribed Body Corporate, that held that land on behalf of, you know, the group that were the native title parties. Um and-and-and then subsequent to the native title act there were um, judgements made uh, in um, the courts, going up to the highest court in Australia, the High Court- the High Court of Australia, um that- that um, the content of native title, uh, rights and interests, could- could uh, be- be limited. And-and-and limitation uh, that- that was imposed on native title rights and interests both by the native title act and the subsequent decisions was firstly that um, Indigenous native title holders um, could not have free, prior and informed consent rights over what happened on their land, they didn’t have a right of veto, unlike Aboriginal Northern Territory land rights law introduced in 1976. So- So if you like, native title gave people a reasonably weak form of property, gave people a lot of use rights over the land, but not rights to exclude, even though there is a category of native title that is called exclusive position, this did not actually allow people the right to exclude outsiders, particularly if they were interested in extracting minerals from native title lands. Uh-uh and subsequently in a very important case in the high court, uh, in relation to native title rights and interests, uh, it was determined that native title which existed, if you like, pre-colonially, did not include rights to sub-surface minerals. So again, y-you know in remote Australia, uh, at least historically, uh, much of the land has had two values. One has been the potential to run cattle and sheep on the land- to extract if you like agricultural profit or surplus from the land. And the other has been to extract minerals from the land again for commercial benefit. And- and if you like what native title law did, was first in relation to pastoralism after the Wik decision in 1996 in the High Court. The Government amended the native title act to give the commercial interests of pastoralists precedence over the rights of native title holders and what it did in relation to minerals after the Ward decision in the high court was to that that the- i-it was really t-to um, support, you know the statutory recognition, given in the native title act the crown owned subsurface minerals and it was the crown, not the native title holders, who could then give the right to extract those minerals to resource development companies. So that’s all my way of saying that in terms of the economic development potential of native title in you know a market capitalist sense was given back to indigenous land owners- indigenous traditional owners, native title groups- w-w-was quite circumscribed and the sorts of rights and interests that people did get back w-w-was to revive if you like, non-capitalist forms of economy. (14.14) so, people got rights to hunt and to fish and to gather and to use the resources of the land for non-commercial or domestic purposes to look after their families and their households by using the resources of the land. B- but in a way except in some circumstances where we’ve been- we’ve seen subsequent jurisprudence, not to be able to trade the resources of the land for commercial purposes. So to answer your question, in terms of metrics we use in Australian society to measure the wellbeing of indigenous people, closing the gap, the income of households, the health status of household members, their educational status, their employment status, uh- native title and before that, land rights, doesn’t make that much of a difference. It- it doesn’t offset the fact that the people who generally gained native title rights and interests, live remotely, have been marginalised historically and now if they want to benefit from their lands, you know, don’t really get much of an assistance if they want to use that land in a commercial sense, you know to gain, to enter that capitalist economic system that’s dominant in Australia today. (16.02)
Dora: Thank you. So you’ve touched on mineral extraction, mining just then. What potential do you see for native title organisations to support and maintain a sustained economic development for their community?
Jon Atman: well-
Dora: Could land care be a part of- Sorry I didn’t mean, forgot to put then end on the question
Jon Atman: yeah sure.
Dora: Could land care be a part of the solution? Land care programs (16.27)
Jon Atman: Yes look. I-I-I guess um, you know- in terms, in terms of you know, the listeners to this podcast, you know, I can’t show them a map so I guess I can ask them to use their imagination. And- and the first this that one needs to imagine in terms of the dominant way we talk about the continent. About 86% of it is remote and much of that part of Australia that is remote or very remote has um, native title and land rights recognised over it. So agin in terms of the Australian continent today, which covers, if I can just use some numbers, 7.7 million square kilometres- about 3 million of that now is held under Indigenous native title, about a million is called exclusive possession and about 2 million square kilometres is called non-exclusive possession where native title holders have to share their lands and its attributes with others, generally pastoralists, and then about another 800,000 square kilometres of Australia’s held under land rights law mainly in the Northern Territory, uh, and South Australia. So in total, um, about half of the Australian continent comes under some form of Indigenous title. And this needs to be very heavily qualified because, um, the Indigenous resident population of that land, sometimes referred to as the Indigenous estate, although it’s not a fixed estate, it’s actually growing as we get more and more recognition of native title. Um, but nevertheless that estate at most has an Indigenous population of 200,000 people today. So, we’re talking probably something like 20-25% of the Indigenous population lives on Indigenous titled lands. And as I’ve described, and as people need to imagine most of those lands are extremely remote and there’s about a thousand small Indigenous communities out on those lands. So, to answer your question, you know, how do those dispersed small Indigenous communities, um, you know, make a livelihood or derive economic benefit from that land title. Um, so one way that this is done is to what people sometimes refer to as economically lever or use native titles rights or interests and a bargaining chip when a resource developer comes along, becomes people have at best a right to veto, um and at worst a right to negotiate with resource developers about what happens on their land. If people want to explore for subsurface minerals, or if they, if subsequently they want to extract minerals from the land. Um, so there are, um, under, um, you know, the laws that we have, you know I keep on referring to land rights and native title because, you know, these both, you know, are important in relation to Indigenous land and titles but they are also different, um, but nevertheless, um, there are, um, institutions established to represent Indigenous traditional owners, in negotiating with powerful often multinational corporations in relation to extraction of profits or rents or resources from their lands. Um, these institutions, um, are Aboriginal land councils, statutory authorities, or native title rep bodies, or where you have native title determination, prescribed bodies corporate. So these are, if you like, incorporated organisations that have been set up to negotiate on behalf of native title holders or traditional owners. Um, and in those negotiations, um, in, uh almost all circumstances, um you know, some commercial benefit can be accrued from extraction from Aboriginal owned lands. There’s no doubt that um, you know, we have extraordinary numbers of agreements, uh, in relation to extraction. Now whether those agreements are equitable or fair or generous enough to make a difference to Indigenous well-being, uh, is arguable. Uh, the record, um, and the, you know, statistical trends that we’ve seen since we’ve had information on Indigenous economic status, you know, which has only really been since the 1970s, suggests that uh, in remote and very remote Australia, uh, Indigenous people in fact, uh, often live in deep poverty, uh, there, in fact amongst, well they are the most disadvantaged Indigenous people. So again, going back to something I said earlier, these resource agreements, when they’re struck, are certainly not significant enough to offset the poverty that many Indigenous people in remote and very remote Australia experience. And in relation, so you have situations where Indigenous people, um, often, you know, defensively have to respond when a developer comes and wants to utilise their land, uh, for profit. Um, but more proactively Indigenous people have, um, you know, native title rights and interests, resource rights that they can deploy for their benefit. Now one of the obvious ones that I’ve already mentioned, is um, if a people want to use the resources of their land, to um, to um, self-provision. To hunt, to gather, to fish. Or if they want to use the resources of their land and their cultural knowledge, to um, for instance get engaged in, uh, the production of art for sale in the market. Or if they want to get involved in cultural tourism enterprises on their land where they invite outsiders onto their lands and develop enterprises to engage with them. Or, very importantly, uh, particularly since the mid-1990s if people want to get involved in natural and cultural resource management of their lands, uh, to either restore the natural and cultural values of their land, or if they want to maintain the natural values, uh, the biodiversity values of their land, um, that might be under threat. So, there are avenues available for people. Um, you know diverse avenues to use the land for their benefit. Um, but there are also extraordinary challenges, um, I’ve already mentioned for instance that, um, you know, Indigenous people, um have to, engage in negotiations with resource developers, um, and these resource development companies are often large corporations, um, are multibillion dollar, sophisticated, you know, capitalist machines that are engaging with, you know, remote living Indigenous people who are represented by their organisations. But their organisations are often relatively under-resourced and powerless in terms of their capacity to… Or not powerless but less powerful than these large corporations in terms of striking deals, bearing in mind that most situations the law says that the extraction can occur, okay. So at best, you Indigenous party’s negotiations can delay extraction, they can’t veto it, except under land rights law. So the deal people might get is not necessarily optimal, um, if people want to engage, um in other aspects of their economy on their lands, one of the things they have to do is be able to live on the land. And, you know, to some extent, you know, the Australian settler state and Federal and State governments, you know, which represent that broader state construct, um, have been reasonably unsupportive of allowing Indigenous people, many of whom live in small townships, to actually go back and live on their land, if you like, to live on country, connect to their country. And there have been periods historically, like in the 1970s and 1980s where we had outstation or homelands movements that were partly supported by Government. But, you know, paradoxically as the Indigenous estate, as Indigenous land titles have expanded, and as Indigenous people have claimed back their land, the state has proven more and more reluctant, to support people, to go, to live back on their land, and enjoy their native title rights and interests. You know, so it’s a sort of extraordinary contradiction… Yes you can have your lands back, you know, where you’ve proved continuity of tradition, you prove connection, you know, you prove your links to, um, you know, pre-colonial native title ownership of the land. But, if you want to go and live on that land, if you want to have a road to get to that land, if you want to have standard services as Australian citizens on that land, like housing or health or education or employment services on that land, then the Australian state has become increasingly. Um, unsupportive and intolerant of people living on their land. So, you know, their ability to mobilise their native title rights and interests for their benefit become heavily circumscribed. And, um, you know, through their agency, you know, Indigenous landholders, you know, resist these constraints, and people do go back to live on their lands, often again by, by, you know, Western metrics of well-being living in deep poverty, um, but people also, um, have been able to form organisations to allow them to, um, you know, mobilise their land rights, and their, uh, cultural and customary knowledge systems to engage with market capitalism and with the Australian state. And I sort of try and depict this conceptually with what I refer to as people engaging in hybrid or mixed economies you know where they mobilise their customary knowledge and rights, but they also engage with the state and the market. And one of the ways historically that people did this very effectively was with the formation of Aboriginal arts organisations, that used to, um, assist Aboriginal people deploy their, um, artistic skills, their knowledge of country, their representative, their representation of, um, land ownership, ceremony, cultural knowledge into art, and these organisations would then sell that art, uh, in the Western fine and tourist art market and return money back to the artists. So, if you like, you know, people responded with some state support it has to be said, um, to the challenge of living remotely and trying to make a living by forming organisations that assisted them with, with, um, with wellbeing. And then, as I said earlier in the 1990s, um, a new wave of organisations started appearing. Sometimes, uh, sometimes this new wave is referred to as the caring for country movement. Where a new sort of organisation was established that employed Aboriginal land owners to deliver environmental services in relation to their lands. Now, this caring for country movement, um, um started with people, um often deploying, uh, a program that used to exist from the 1970s called the community development employment program to give people some income to engage in land management and resource management activities on their land. And again just, you know, I’m sure your listeners would be familiar that basically what this meant was people going back onto the land and dealing with some of the intrusions onto the lands from feral animals and exotic weeds that had negative impact on the biodiversity values of Indigenous lands. These were introduced, uh, challenges to the lands, but they also included, you know, other challenges, that, the integrity of the land in terms of conservation values are faced. Um, so people form these groups, um, in, um, 1997, uh, a program was set up by the Australian government called the Indigenous protected areas program, which has slowly grown to support groups. Um, I think there are now over 75 Indigenous protected areas, nearly 80 Indigenous protected areas. And these Indigenous protected areas, uh, provide employment for Aboriginal rangers and they deliver, um, biodiversity conservation, uh, to the Australian nation. Um, I’m often asked who benefits from land rights and native title, and I have to say that, um, yes, Indigenous land owners benefit, but the rest of the nation also benefits, because, um you know, about 50% of the Australian conservation estate, what’s called the national reserve system is now under Indigenous ownership, and it’s Indigenous people in the remote-est [sic] parts of the continent that maintain the environmental values and the environmental integrity of those lands. And those lands generate what I refer to as ecological benefits to the nation and the world. You know, it’s these lands, um, that, um sequester and, carbon, it’s these lands where, um, rangers through their, um fire management programs are able to reduce carbon emissions from wildfires and hence, uh, reduce the emissions of carbon that contribute to global warming. Um, it’s these lands, um, that have the greatest, um, environmental, um, integrity and conservation biodiversity values, uh, in Australia. So, you know, the Australian nation benefits, uh, very directly and indirectly from native title and land rights because that empowers Indigenous people to set up these projects, um, that are funded under the Indigenous protected areas program and also the working on country program to deliver environmental and ecological services to the nation. But, uh, in saying all this I don’t want to sound too optimistic because, um, firstly, it’s a real struggle for groups living remotely to set up these organisations and secondly, um, like, you know, this has to be said, you know, like all Indigenous development organisations, um you know, they are far from generously funded by the Australian state. Um, so you know, that expression, these organisations are often run on the smell of an oily rag. You know, and they operate extraordinarily remotely under very difficult geographic and climatic circumstances. You know, they might be in the middle of desert Australia, they might be in remote tropical Australia. None of this is easy, but nevertheless it does generate some benefits, uh, for Indigenous Australians.
Dora: Pivoting now to native title compensation. Compensation for loss of native title has been discussed more and more since the Timber Creek decision in 2019. What potential do you see for this type of compensation?
Jon Atman: Umm, well, Timber Creek, uh delivered after it went to the High Court 2.5 million dollars of compensation, uh, to recognise native title holders in a small town in the Northern Territory. Um, that compensation, um, under native title law, um, for past acts that, uh, extinguished native title can only occur between 1975 when the Racial Discrimination Act was passed and 1994 when the Native Title Act became operational. And, um, there are a limited, it appears that there are a limited number of cases where compensation will be payable. But unlike Timber Creek where a compensation was only paid in relation to about one square-kilometre of land in a small township, some of the areas where compensation might be payable, um, extend to thousands of square-kilometres. So, there is certainly potential, um, for compensation to be paid to, uh, native title groups, where, uh, what they refer to as compensable acts, in other words, where their lands, where native title would’ve been recognised if there was a Native Title Act, was extinguished between 1975 and 1994. But there were also cases in train, where people were trying to push back beyond that 1975, uh, um, you know, sort of, threshold that was established, um, under the Mabo judgment and Native Title Act. Which basically said that, you know, uh, just terms compensation, um that needs to be paid to Australian citizens also needs to be paid to Indigenous Australians as Australian citizens. Um, you know, there’s been an attempt if you like to limit the payment of compensation to that window, 1975 to 1994, and by attempting to limit, um, that payment, you’re obviously limiting the number of people who might potentially benefit, um, it’s just, we need to understand we aren’t talking about past acts of extinguishment here and future acts of extinguishment or impairment of native title that I talked to in relation to resource development is compensable, uh, through agreement making, um, so we just need to be able, we need to be careful to distinguish these past acts, um, from future acts. And, and the other thing, I guess, we need to say, is um, is the Australian government, um, when it passed the Native Title Act, also established an Aboriginal and Torres Strait Islander land fund, now referred I think as the Indigenous land and sea fund, um, which holds about 2 billion dollars at present, to allow forms of compensation, not for people who hold native title, but for people whose native title has been extinguished. So arguably there is a compensatory element to that land fund, land and sea fund. But the problem with that land and sea fund is that its ability to draw down resources is limited, uh, by the law. And so the ability of Indigenous, um, people to deploy those, uh, 2 billion dollars, in what is a sustainable prudential fund actually held now by the, uh, under the futures fund is limited to the returns that they can get from that money. And, and other thing that has to be said is that, as a part of the Mabo settlement, if you like, that the Keating government was going to bring in, uh, in 1993 and after 1993 was a social justice package. Uh, but, uh, that was never properly establish, uh, by the time the Howard government was elected in 1996. So there’s still the sleeper that’s been sitting there now for 25 years, um, um, which is, which is the social justice package and in some ways, it’s that social justice package, and, and if you like, political agitation by Indigenous people to see that revived that could be the source of the compensation that’s payable to Indigenous people who don’t have, uh, land rights or native title rights and associated interests. Uh, but in terms of native title rights and interests I guess, it’ll be interesting to see, um, you know, what applications are made to the courts, what the courts accept, you know, bearing in mind again, you know, that um, the Australian settler state, uh can, can, you know, has enormous influence, um, on the judicial system, um, and then the tolerance I guess, of the political system to allow compensation to be paid in situations where, uh, native title, um, has been either extinguished or impaired.
Dora: You touched on the timeframe between the Racial Discrimination Act and Native title Act in 1994. Can you just explain to us briefly in layman’s terms what the legal reasoning behind this timeframe is?
Jon Atman: Well, I guess in layman’s terms, you know, before 1975, um, Australia didn’t have law that, that fundamentally said that discrimination against, um, Australians is illegal. In other words, it’s really the Racial Discrimination Act that says that all Australian citizens whether they’re Indigenous or non-Indigenous have to be treated the same under Australian law and it’s that link between that requirement to treat people the same, and the, a clause in the Australian Constitution that says that while the Australian, uh, settler state, while, while governments ultimately own all the land, if they compulsorily acquire that land, if they take that land off Australian citizens after 1975 if we’re all treated equally they must compensate them with just terms. So, to put it bluntly it’s almost like saying that before 1975 land was taken off Aboriginal people, um, in a racist way and in a way that didn’t recognise under Australia’s Western law that Indigenous people had forms of land ownership, forms of land title. So, if you like, it’s sort of like, it’s almost like excusing, you know, what we would regard today as unacceptable behaviour before 1975. But after 1975 we put in place laws that said we cannot treat different Australians differently. Now, now, you know, this is bizarre in a way, um, and I’m sure that emerging legal contestation and cases before the courts and future jurisprudence will challenge that cut-off date of 1975, and say hey, and you know, to some extent, we’re seeing this, um, in relation to stolen generations as well. You know, hey, you’ve treated people appallingly in relation to their land rights or you’ve treated people appallingly in terms of taking them away from their natural families, you need to recognise this and offer forms of compensation. Now whether that compensation is monetary or takes other forms, you know, is up to debate, and it’s really up to Indigenous people to articulate how they want that compensation to be made to them. But there’s no doubt, you know, that you will get applications for compensation that go back beyond 1975. Although a clever, uh, issue around 1975 as a cut-off is of course, with time, you know, there are less and less people with direct interest to pre-1975 times. Uh, because you know, because people have a limited lifespan, and there’ll be less, over time there’ll be less and less people with pre-1975 interests.
Dora: So native title claims in the courts are often where diverging conceptions of property meet. How do Australian courts navigate these alternate conceptions of property? And what might be a better way to do it?
Jon Atman: Yeah look, this is, uh, I think it’s a terribly difficult issue, because what one’s really looking to do and I think it came up very clearly, um, in Timber Creek, um, you know, is, one is trying to provide compensation from a Western, Australian Constitutionally-based perspective to something, that from an Indigenous standpoint, might not be compensable. You know, so we have this view that somehow if damage is done in a Western sense you pay people money and that offsets the damage. But from an Indigenous perspective, you know, the loss of spiritual connection to the land, um, the loss of, you know, the ancestrally imbued landscape might never be compensated with money. So, what we see is a case put in the courts for compensation, but it’s all framed around Western notions of property. And yet, you know, what we’ve seen with Mabo and native title is that, um, you know, native title if you like is a non-Western, pre-Western form of property. So you’re really trying to, um, you know, you’ve almost got two languages, um, that are trying to, um, engage with each other, but of course, the court is dominant, you know, and it reflects the dominant settler society’s views and values and norms you know, and ultimately culture, and so, and the court of course is managed, you know, by a Western trained judge, you know, that, the judge is the authority in the courts. And, you know, the language, you know, the Indigenous, um, claimants, you know, they’re the applicants, they’re applying to the court, you know, they’re appealing to the court to hear they’re case. So the playing field is very, very tilted against Indigenous views and Indigenous standpoints. And I guess, what we’ve certainly seen in other settler societies is that the, you know, emerging jurisprudence, you know, the emerging common law tries to take into account Indigenous perspectives and Indigenous values. Um, and in some of the work I’m doing around the aftermath of Timber Creek I’m looking to what’s happening for instance in relation to the law in nearby New Zealand, Aotearoa New Zealand. Where the courts are increasingly able and willing to take into account Maori perspectives on property. But in Australia I think it’s fair to say that it’s a very, very slow process. And one of the positive things that has come, I think, from Timber Creek, remembering that the case was heard in 2016, then it went to the full bench, the Federal Court, then it went to the High Court, the case was lodged in 2011 so it took 8 years before a final decision was made, which is a terribly long time for the native title holders, the applicants. But that aside, the notion of cultural loss was introduced into the court as an element, uh, of the, you know, the compensable act, what, what, you know, the pain and suffering people experienced and what needed to be compensated. So, you know, we’re seeing, very slow movement in the right direction, but again it’s probably up to, you know, Indigenous activism, you know, to push for alternate viewpoints to be entered into the legal system. You know, and that activism has occurred in other settler societies, it’s occurred in New Zealand, in Canada and the United States in terms of saying, no, no, it’s not just Western concepts of property, it’s not just, and property law, that need to be recognised here. Yes, you know, um, the settler state is dominant, we are colonised, we’re living in a colonial situation, not a post-colonial situation, we’re living in a colonial situation, but social justice and economic justice demands that our views on what constitutes property, our views on what constitutes, uh, proper recognition of our rights and compensation for our lost rights needs to be heard. It needs to be incorporated into the common law. Um, and I just think that these processes are proving to be, uh, extraordinarily slow, uh, in Australia. And I think many Indigenous people are very frustrated by the slowness of these legal processes and what this does is result in them, if you like, making what are sometimes Indigenous Land Use Agreements or other forms of agreements with governments that bypass the legal system but don’t necessarily deliver to them the sorts of outcomes that you might see from, um, you know, the legal system, because as I said before, Indigenous peoples are positioned in terms of negotiation with states, um, as well as, with, uh, resource development corporations can be quite weak. (54:08)