Of course, our fight for land rights, protection and promotion of culture, the right to control
over our economic future, started over 200 years earlier upon colonisation. But the year 2022
marked 30 years since Mabo (No. 2) – the beginning of our native title journey.
These last 30 years have seen a rapidly developing body of law. In 30 years of legal experiments
and precedents, we have been the ‘guinea pigs’. Our rights to culture, including our rights to
Country, have been defined and redefined and redefined again in national law. Usually not by
us. Our forced removal and physical disconnection from country has been established via native
title law as a reason to describe our pre-sovereignty rights as ‘extinguished’ – unenforceable –
within colonial Australian law.
Looking back over 30 years of native title in that bigger land rights story, we have again
demonstrated unparalleled resilience in working within the native title system – a system which
imposes a foreign definition of connection to land and foreign legal structures in deciding what
traditional rights to Country and culture are to be recognised – to try and secure our rights. In
many cases, the dispossession of land, culture and knowledge cannot realistically be reversed.
We have accepted that. But we have not accepted that that position should come freely to the
Australian Government and state and territory governments. We never agreed to that. We never
ceded sovereignty at any point – not a single Aboriginal or Torres Strait Islander nation, and
certainly not as a whole First Nations body of some description.
We have worked with the native title system to come to a point where we often do have a
seat at the table. Governments across the country have changed their attitudes, helped by
the imminence of the major compensation cases which have been looming for a decade or
more. And there is further to come with the development of an additional potential avenue for
compensation for some of our First Nations peoples through the constitutional protection of
section 51(xxxi) on the right to ‘just terms’ in any acquisition of land by the Commonwealth.
Slowly, slowly, the human rights protected by the common law system and the Constitution, and
critically infused with international human rights protections, have provided us with avenues to
achieve some measure of justice on occasion.
We have used and continue to use every avenue available to us to seize control of our future
and enforce our basic human rights. Human rights law – ranging from international human
rights law to domestic anti-discrimination legislation, to state and territory human rights acts,
to the Australian Constitution – will continue to develop. The tides of history are moving us
towards some viable avenues to achieve land justice. But there are still huge barriers and a
human rights‑based approach needs to remain front and centre of our push for reform in all the
relevant areas.
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Women in Native Title: Native Title Report 2024