Undoing the promise of Mabo

More than two decades after Mabo, the promise of enduring native title is being quietly dismantled through legal compromise and political convenience, writes Gerry Georgatos.

THE 1992 Mabo v Queensland (No. 2) decision marked a watershed moment in Australian legal history, challenging the long-standing doctrine of terra nullius and acknowledging the existence of native title rights held by the First Peoples of Australia. 

This decision was pivotal in reshaping the legal recognition and engagement of First Peoples in the Australian legal system in reference to their connection to the traditional ancestral lands and provided a foundational basis for the Native Title Act 1993 (Cth), which established a legal framework for recognising and arguably protecting native title.

However, over two decades after the Mabo decision, the Noongar Native Title Settlement of 2016 revealed serious concerns about the long-term protection of native title rights in Australia. This settlement, which includes a controversial “surrender clause” extinguishing native title after 12 years, has raised critical questions about whether the intention of Mabo – to enshrine native title as a permanent, unbreakable right – has been undermined. 

The Mabo decision: Legal revolution and Eddie Mabo’s legacy

Eddie Mabo's connection to his traditional lands on Mer Island in the Torres Strait and his fight for native title recognition against the State of Queensland culminated in the landmark 1992 decision by the High Court of Australia.

Prior to Mabo, Australia operated under the terra nullius doctrine, which held that the land was uninhabited by “civilised” peoples who would not be recognised as owners of land by the British invaders. 

It is arguable as to the legal interpretations in reference to whether this continent was invaded or settled in 1788. I convey the view that it was invasion. Settlement or colonisation clearly implies a barren continent and where the presence of peoples is argued, then the doctrine conveys uncivilised people who were deemed as inferior humans. 

This doctrine provided the legal justification for dispossessing First Peoples of their lands by what must eventually be acknowledged to have occurred by force and war. From 1788 to 1992, Australia's First Peoples were denied any form of substantive legal title. In the Australian Constitution, they were degraded as inferior humans.

In a 6-1 decision, the High Court overruled terra nullius, establishing that the Meriam people, led by Mabo, had a continuing connection to their land under their traditional laws and customs. The High Court recognised native title as a valid form of land ownership, contingent upon proof of ongoing, uninterrupted connection to the land.

The Mabo decision fundamentally reshaped the landscape of land rights in Australia for First Peoples. By rejecting terra nullius, the Court acknowledged the deep, spiritual and legal ties First Peoples maintain with their lands. This recognition was a victory for arguable sovereignty for First Peoples, marking the beginning of a new chapter in the legal recognition of traditional land rights.

Native Title Act 1993 and its challenges

Following Mabo, the Australian Parliament passed the Native Title Act 1993, creating a legal framework to address the recognition and protection of native title. While the Act was a significant achievement, it has been criticised for its procedural and evidentiary requirements, which are often burdensome and difficult for urban and regional and remote First Peoples to meet. In particular, the requirement to demonstrate an ongoing and continuous connection to land, despite centuries of invasion/colonisation, displacement and disruption, has proven to be a substantial barrier for many claimants. 

What should be recognised and considered are the apartheid practices deployed by the Australian legal system, particularly in the last century-and-a-quarter, that included forcible mass removal of peoples from their homelands, the miserable reserves many were corralled within, the segregations, eugenics that led to generations of children removed from their parents and the abominable injurious indoctrinations of these children that haunt to this day. 

The sins of the nation need to be addressed by the Australian legal system. The legal system was used to interrupt and destroy the connection to traditional lands and heritage.

The Native Title Act provides a framework for the negotiation of native title claims but does not grant full ownership or control over land. Native title can coexist with other land interests such as pastoral leases or mining tenements, and the Act’s right to negotiate provisions are often ineffective, as communities of First Peoples frequently lack the power to negotiate with large corporations and state governments that hold greater economic and political leverage.

Noongar Native Title Settlement: A controversial ‘surrender clause’

The Noongar Native Title Settlement of 2016 represented the largest native title settlement in Australian history. The settlement, valued at $1.3 billion, was hailed as a landmark outcome. The agreement included financial compensation, cultural heritage protection, and the establishment of governance mechanisms to help Noongar people manage their lands and financial affairs.

However, the settlement included a highly controversial “surrender clause” which stipulated native title rights would be extinguished after 12 years. The inclusion of this clause is viewed by many, including this author, as a betrayal of the intent of the Mabo decision. Native title, as established in Mabo, was understood to be a perpetual right — an enduring connection between First Peoples and their ancestral lands. 

However, reforms to native title laws under Prime Minister John Howard’s 'Wik 10 Point Plan' weakened claimant rights. The Noongar Settlement, by placing a time limit on native title rights, challenges the assumed foundational principle in Mabo v Queensland (No. 2), desirous of uninterrupted connection to ancestral lands, therefore native title in perpetuity.

Critics, including this author, argue the surrender clause is tantamount to a denial of ongoing sovereignty by First Peoples over their lands. Instead of protecting native title as a permanent right, the settlement time-limits the Noongar people's legal connection to their lands, rendering their rights subject to a negotiated settlement that will be extinguished at the end of the 12-year period. 

This raises critical questions about whether this settlement represents a systemic failure in the application of native title law, especially when compared to the ideal of perpetual recognition arguably envisioned in the Mabo decision.

Native Title in perpetuity: Mabo’s intent and the implications of extinguishment

The core issue raised by the Noongar Settlement is whether native title was ever meant to be extinguishable. Mabo itself provided no definitive answer to this question, but set a precedent for ongoing recognition of native title rights.

It is clear, however, that the High Court in Mabo did not contemplate native title being extinguished through settlements or time-limited agreements. The concept of native title was framed as a permanent, enduring connection between First Peoples and their land, irrespective of government policies or settlements.

The Noongar Settlement, however, undermines this principle by accepting the extinguishment of native title after a fixed period. The Australian legal system, in permitting this surrender, fails to live up to the promise of Mabo — an ongoing, unbroken connection between First Peoples and their lands.

The introduction of the surrender clause further diminishes the self-determining powers of First Peoples to maintain control over their ancestral lands in perpetuity, relegating them to a form of legal recognition that has a definitive end date.

Legal and systemic failures: A call for reform

The Noongar Settlement exemplifies the broader challenges facing native title law in Australia. Despite the recognition of native title rights, the legal system has struggled to protect these rights effectively in practice. The complexity of proving continuous connection to land, the erosion of native title rights through settlements like the Noongar agreement and the lack of enforcement mechanisms to ensure compliance with native title decisions all contribute to a legal system failing First Peoples.

Several reforms are necessary to ensure native title is protected in perpetuity, as envisioned in Mabo. First, the legal framework must be amended to prevent the extinguishment of native title through settlements that place time limits on its recognition. A comprehensive review of the Native Title Act is needed to ensure that it better accommodates the realities of First Peoples who continue to face legal, political and social challenges in maintaining connection to traditional lands.

The Australian Government must prioritise long-term solutions that address the systemic issues underlying native title claims. This includes ensuring that First Peoples have the resources, support and legal capacity to negotiate effectively with governments and corporations over land use, as well as creating stronger enforcement mechanisms to protect native title once it has been recognised.

Background: Justice Wilcox's Native Title Decision (2008)

In 2008, Justice Murray Wilcox, sitting in the Federal Court of Australia, made a significant ruling concerning native title in the southwest of Western Australia, regarding the Noongar First Peoples:

1. The Claim: The Noongar people, who historically inhabited the southwest region of Western Australia, filed a native title claim over approximately 200,000 square kilometres of land, including the area around Perth, the state’s capital.
2. Justice Wilcox's Findings: In his decision, Justice Wilcox made the finding that the Noongar peoples held native title over much of the area in question. He found:

• the Noongar people had maintained a continuous connection to the land and this connection had not been completely extinguished by the actions of the state or the Crown; and
• there was evidence that the Noongar people had a continuing cultural, social and spiritual connection to the land, despite the disruption caused by colonisation.

3. Impact: The ruling was a profound development in native title law in Australia, particularly because it was one of the first times native title had been recognised in a metropolitan area like Perth.

Appeal and overturning of the Wilcox decision (2009)

However, the decision was challenged. The Western Australian Government appealed the ruling and the Full Federal Court reversed Justice Wilcox’s decision, a year later, in 2009.

The Western Australian Government, alongside other parties, appealed the decision on several grounds. The main argument was that native title had been extinguished by the actions of the Crown and other legal principles, especially in areas that had been developed in the modern era.

The successful appeal ensured the Noongar people did not retain native title over large parts of the land, particularly urbanised or heavily modified areas. However, there was still an acknowledgement of native title over parts of the southwest of Western Australia, but the broader claim was significantly narrowed by the appeal's outcome.

Noongar Native Title Settlement

Despite the loss in the courts, this case eventually led to a touted historic settlement between the Noongar people and the Western Australian Government. In 2016, a settlement was reached, but many, including this author, criticised it and I still do.

The settlement, now in implementation phase, “settles” all native title rights within a 12-year period, after which all native title rights are extinguished. This settlement, in my view, is reprehensible, a defeat of the arguable intention of native title rights in perpetuity. 

If the vested beneficiaries of the Noongar Settlement generate insufficient dividends from the compensation package, nearly 50,000 Noongars will be left behind, unable to exercise further native title rights as their native rights will have been extinguished. Other claimant groups nationwide are negotiating financial benefits without surrendering native title rights.

We must recognise that the Australian legal system is informed by the consciousness of the day. I argue the High Court of 1962, 1972, or 1982 would not have upheld the Mabo v Queensland (No. 2) decision of 1992. I argue native title claims are likelier to be upheld currently than earlier this century. I argue Justice Wilcox was ahead of his time in 2008. I argue that the appeal to the Federal Court in 2009, overturning the Wilcox ruling, would be less likely to succeed today.

I declare I was the critic who drew attention to the “surrender clause” in the “12-year-duration” settlement, which the South-West Aboriginal Land and Sea Council signed off on behalf of the 50,000 Noongar people with the Government of Western Australia.

The 2016 settlement was valued at $1.3 billion – $600 million in funds over 12 years – the rest “in-kind” land use agreements. At the cost of extinguishing the arguably intended rights of the “unborn”?

Conclusion

The Noongar Native Title Settlement is akin to a settlement of convenience that curtails ongoing legal recognition of Noongar sovereignty over their land.

The inclusion of the surrender clause in the Noongar Settlement marks a departure from the principles established in Mabo, undermining the notion of native title as a perpetual right. This raises questions about native title law protecting the rights of First Peoples in the long term.

While the legal framework for native title makes important strides, ongoing challenges, including the complexity of proving native title, the erosion of rights through settlements and the failure to fully recognise sovereignty of First Peoples, continue to hinder the realisation of justice for the First Peoples. 

Our contemporaneous national identity will remain incomplete and an indictment of our institutional systems, including governments and the legal systems, until we address the sins of the invader-borne-nation in its horrendous and ongoing impacts on the First Peoples.

Reform is urgently needed to ensure native title is recognised and protected in perpetuity, as originally intended by the Mabo decision, and the Australian legal system fulfils its obligations to our First Peoples.

Gerry Georgatos is a suicide prevention and poverty researcher with an experiential focus on social justice.