Native Title is an uneven playing field: Calma

By Angela Dorizas

Australia’s native title system is an uneven playing field and in need of serious reform, according to the Aboriginal and Torres Strait Islander Social Justice Commissioner, Tom Calma.

Speaking at the recent launch of the latest edition of the Australian Law Reform Commissions’ Reform journal, Calma welcomed the introduction of the Native Title Amendments Bill in Federal Parliament, but called for further changes to the troubled system.

One of the changes Calma has proposed is greater funding for native title claims and their representatives.

He said while non-Indigenous parties were able to come to the negotiation table with qualified legal and economic advice, Indigenous parties seeking native title were significantly under-resourced.

“It’s not an even playing field,” Calma told GovernmentNews.

“There’s an imbalance and it’s something that we need to consider.

“When there’s a power imbalance we don’t always see the best outcomes for Aboriginal and Torres Strait Islander people.

“Indigenous people must have access to sufficient resources to fully and effectively participate in native title. This includes resourcing organisations which are trying to secure a determination of native title or use procedural rights under the act.”

Calma called on the Federal Government to also establish a panel of experts to be drawn upon by various native title parties to “level out” the playing field.

He acknowledged that the economic downturn would limit the availability of funding for native title, but said this proved even greater reason for the Government to take-up his next proposal of “shifting the burden of proof”.

“I’m pleased to see that discussion about which party should bear the onus of proving native title is back on the table,” Calma said.

“I’ve long voiced concerns about the burden placed on Indigenous people to prove native title, because it’s just simply too great and in fact it is very unjust.”

He said he supported the proposal by the High Court’s Chief Justice Robert French for “certain presumptions in favour of the Indigenous claimant”.

Closing the Gap

Clama said reform of native title would help close the gap between Indigenous and non-Indigenous Australians, since land was fundamental to the health, livelihood and rights of Indigenous communities.

“For Aboriginal and Torres Strait Islander people land is the essence of life,” he said.

“If you get your land back you’re able to associate with that land and from it comes your language and your culture.”

Calma praised the Federal Government’s decision to support the UN Declaration on the Rights of Indigenous Peoples, describing it as the “watershed moment” in Australia’s modern history.

“The challenge now is for government to build understanding of the declaration amongst government officials and the community and importantly, incorporate the declaration’s principles into government policy,” he said.

Govt supportive of reform

Also speaking at the ALRC journal launch, Federal Attorney-General Robert McClelland said the Native Title Amendment Bill would provide for “broader, more flexible and quicker negotiated settlement of native title claims”.

He said the key change was handing the Federal Court a central role in managing the resolution of claims once a native title application is made.

“Having the Federal Court actively control the direction of each native title case means that opportunities for resolution can be more easily identified, deadlocks broken and the efforts of parties better focussed,” McClelland said.

“Despite these amendments, substantive change will only come where all parties take a fresh approach to resolving their claims.”

McClelland agreed with Calma that the costs involved in native title negotiations were “far too high”.

“It also prevents money being spent on much needed services for those people who native title is intended to benefit,” he said, adding that last financial year the Federal Government spent $120 million on the native title system.

McClelland also acknowledged that native title was an important part of closing the gap on Indigenous disadvantage.

“Native Title agreements can play an important role in closing the gap of disadvantage between Indigenous and non-Indigenous Australians, particularly through the Indigenous economic development opportunities that native title presents,” he said.

“Agreements can also contribute to reconciliation between Indigenous and non-Indigenous Australians. These opportunities cannot be overlooked or ignored.”

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