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29 May 2002, Media Release

10th Anniversary of Mabo Decision

On the tenth anniversary of the High Court decision in favour of Eddie Mabo, Chairman of the NSW Aboriginal Land Council, Rod Towney, looks at Native Title, the resulting legislation and how NSW's peak body sees the future.

On the tenth anniversary of the Mabo High Court decision, we at the NSW Aboriginal Land Council honor Eddie Mabo, David Passi and James Rice for their fight and victory against the institutionalised lie of terra nullius.

However, as the peak representative body for Aboriginal people in NSW, we re-assert our position that the Native Title legislation is profoundly discriminatory and divisive, and in many cases, the process of claiming it serves as a distraction from the real issues and goals.

It is important to note the difference between the Native Title High Court decision and the Native Title Act. Native Title is our right. That it had to be sanctioned by our coloniser's court system is a tragedy in itself. This is our land and we are intrinsically connected to it through our traditional laws and customs. Although, the official acknowledgement was long overdue, the Mabo decision marked a truly symbolic turning point in terms of the rights of our people and has had a profound effect on the psyche of the nation.

The Native Title legislation offers us the right to prove that our traditional ownership has not been extinguished by the invaders. When we comply with the rules of this legislation, our identity is challenged by the those who formulated the legislation in the first place. For example, in the case of the Yorta Yorta people, the Federal Court determined that their native title had been extinguished because, according to the judgement passed down by Justice Howard Olney, "the tide of history had washed it away". Although the Yorta Yorta people are contesting this judgement in the High Court, and we support them in this fight, the judgement is a prime example of what Aboriginal people in NSW face when it comes to proving our history.

We at the NSW Aboriginal Land Council believe these time-consuming and expensive court battles are distracting us from our real purposes, the empowerment of Aboriginal people.

What practical benefits have been achieved for Aboriginal people through the Native Title legislation? There have been 23 successful Native Title determinations in the past 10 years.
In terms of real economic gains, only a few Native Title determinations have delivered for Aboriginal people.

In NSW, the Native Title Act is not delivering for our people. The immediate dislocation of our people from their land, starting in 1788, means that it is extremely difficult to prove continued connection with our traditional lands. In NSW there has been only one Native Title determination. In Crescent Head, the claim was settled by an agreement which relinquished Native Title, in exchange for financial compensation. This does not mean the Dunghutti people do not value the native title to their land, however, it is indicative of what they really needed to develop in modern day Australia - compensation for past dispossession.

This is precisely what the NSW Aboriginal Land Rights Act (1983) (ALRA) offers the Indigenous people of NSW.

As the democratically elected Chairman of the NSW Aboriginal Land Council (NSWALC), I speak for 23,000 members of 120 Local Aboriginal Land Councils of NSW. The NSWALC was established under the NSW ALRA in 1983, nine years before the Mabo decision.

Under the NSW Aboriginal Land Rights Act, the NSWALC and its 120 Local Aboriginal Land Councils have been granted 75,952 hectares of Crown Land in NSW since 1983. Under our legislation, the Local Aboriginal Land Councils which lodge claims do not have to prove traditional ownership. Land is granted as compensation for past dispossession. If the claim is granted, they own this land freehold and have the same rights as any other landowners in Australia, which includes leasing or selling the land for the good of the community (under certain conditions of the Act).

We believe the ALRA is currently the best Aboriginal rights legislation in Australia and should be used as a model to deliver national land rights to Indigenous people of Australia. Under the Act, the control of the three tiered Land Council network and the future economic development of Local Aboriginal Land Councils is in the hands of the Aboriginal people.

There are three main factors that make this legislation workable and fair:
· It is a self funding organisation and therefore independent from Government
· Compensation through land rights is not based on proof of traditional ownership
· It supports a three tiered democratic structure of State, Regional and Local Aboriginal Land Councils.

The NSWALC's funding comes from the interest raised on its capital base. For fifteen years, the State paid an amount equivalent to 7.5 per cent of NSW Land Tax (on non-residential land) to NSWALC, as compensation for land lost by the Aboriginal people. That annual payment ceased in 1998. Of course with more money, we could do more for and with our communities but the strength of our position lies in the fact that we are self-funding and therefore independent of Government influence.

On the contrary, the Federal Government allocates $2.5 million a year to Native Title litigation, but every year, $120 million is spent on Native Title processes - including Native Title administration, funding for the National Native Title Tribunal, funding to ATSIC for Native Title services, court administrations etc.

Federal land rights legislation would eliminate this waste of taxpayers money and promote the self determination of Aboriginal people.

For example, under the NSW ALRA, the Darkinjung Aboriginal Land Council, based in Wyong, has turned a land claim on a former dump and sand mining property into a proposed $40 million tourism development. This deal will provide an economic base for the Aboriginal people of the Darkinjung area, with funds being used to develop education, health, training, home ownership and business development for Aboriginal people of this area.

So why is this not being used as a model for Federal land rights legislation? The real reason, we believe, is the high level of control the ALRA gives Aboriginal people.

While we continue to support our people who are making claims under Native Title legislation to practise traditional laws and customs, we do not feel Native Title legislation is the way for the future.

Our agenda is both rights and sustainable development. We believe they go hand in hand. Although Indigenous Land Use Agreements and Native Title agreements have in some cases propelled communities toward sustainable development, they do not have a structure to carry it forward.

A Federal land rights legislation would give real compensation to all Aboriginal people, allowing for each land council around Australia to decide for themselves how they use their land - whether this is for development or for traditional uses. We also support the concept of negotiating a treaty by which issues such as traditional rights can be addressed in a more uniformed and fair way.

The pre-amble of the Aboriginal Land Rights Act (NSW) states:

" Land in the State of New South Wales was traditionally owned and occupied by Aborigines. Land is of spiritual, social, cultural and economic importance to Aborigines. It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land. It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation".