2 2.3 Social Justice Commissioner’s foreword The disappointments of native title The stories of the individual women in this Report highlight that many of the best outcomes in recent times are coming from consent determinations and alternative agreement-making; and from highly skilled individuals stepping up to promote the agency of native title holders and Traditional Owners by recentring culture, identity and purpose, and thereby unifying communities. Those individuals are proving to be critically important in the claims period, and the healing and governance aspects of the post‑determination period. The progressive change towards a more collaborative, cooperative approach by governments in recent times3 has enabled some native title groups to achieve a level of involvement in the management of their own Country which would not have been possible through native title litigation alone. Many native title groups would likely have secured no rights at all if they only had litigation as an option. However, native title has often been the shadow in which agreements have been made and this has had both positive and negative implications. Whether governments would have agreed to consent determinations or other agreements in the way that they have in the last decade or so without the ‘threat’ of having to go through the courts will never really be known. The threat of higher levels of compensation via the Native Title Act than was previously thought likely is now having an impact.4 High Court claims have also ‘moved away from finding ‘extinguishment’ towards ‘co‑existence’ wherever possible’.5 But it is notable that the shadow of native title in which agreement-making has been taking place has necessarily included the lack of power that native title legislation ultimately provides native title groups, even in the best of circumstances.6 While the broad change in approach by governments over the last decade or so – to one of arguably greater goodwill – is welcome, it has not addressed the problems that exist with defining and identifying native title groups and related boundaries over Country. It does not help those groups who went through the courts in the early days of native title and experienced the full force of governmental (and other third party) opposition and the chaos of establishing the regime. It does not help those who, for the sake of certainty for non‑Indigenous stakeholders, had their native title defined without rights to control access to their land because at some stage in history that control was not available to them, either in theory or practice. And it does not help those who feel they were coerced into agreeing to the destruction of their land in exchange for what they determined at the time to be the best package of benefits possible within a system that does not adequately uphold their rights. The reality is that, as predicted 30 years ago, native title is not delivering justice effectively. Certainly, many groups and individuals have done their very best in gruelling circumstances to make the most of the opportunities native title has presented. However, even for those satisfied with the ultimate results, the processes associated with native title have often been experienced as disempowering. Moreover, in far too many circumstances the native title system is producing unjust outcomes; and in many of those circumstances the level of injustice experienced is more extreme and more final than that felt before engagement with the system. Ultimately, until there is a change in the power imbalance enshrined by the Native Title Act and related legislative regimes, a satisfactory, just land settlement will remain unfinished business for many First Nations peoples across the country. Australian Human Rights Commission 9