Jane Lee Published: June 1, 2013Eddie Mabo's High Court win has been ''squandered'', with native title reduced to something of little practical significance, a retired Federal Court judge says.
Peter Gray, previously the Aboriginal land rights commissioner and deputy president of the National Native Title Tribunal, retired after 29 years at the Federal Court on May 17.
In his farewell speech to the court, he referred to the historic 1992 decision that overturned the terra nullius doctrine that Australia belonged to no one before white settlement, paving the way for native title rights for indigenous people.
''The biggest disappointment in my career has been to see the opportunity given to us by the High Court in the Mabo case squandered,'' Mr Gray said.
''The concept of native title has been reduced to something of little practical significance by judges who have been unable to understand, and legislators who have been consciously averse to, the vital relationship between people and land in Aboriginal traditions.''
He said a future generation of Australians had to devise a new native title system that ''recognises and respects the rights of our indigenous peoples and returns to them a measure of control over what, but for colonisation, would have been indisputably theirs.''
Since The Mabo case native title has been recognised in 181 cases and found not to exist in 48 cases.
Mick Gooda, the Aboriginal and Torres Strait Islander Social Justice Commissioner, disagreed, saying that many had benefited from successful native title claims and joint use agreements, with some Western Australian mining deals worth hundreds of millions of dollars.
''There's an acceptance that native title is now part of the Australian landscape,'' he said.
But Mr Gooda said that reversing the onus of proof on indigenous people to establish a continuous connection with the land would help make the system fairer.
''It should be accepted Aboriginal people [have a connection] and if anyone wants to challenge that, it's up to them. It's such a bone of contention trying to work out who belongs where - that's an Aboriginal question and we should be able to work that out,'' he said.
More jobs needed to be created for Aborigines in areas where native title existed. ''[I think] those prescribed body corporates are going to be the engine room of economic development in the Aboriginal world,'' he said.
He said he hoped proposed reforms to the Native Title Act would be passed before the election to allow parties to agree to ignore the historical extinguishment of native title in places such as national parks.
The president of the National Native Title Tribunal, Raelene Webb, QC, said the often adversarial nature of litigation was a barrier for native title and that an inquisitorial process might work better, when possible, in future.
''This would be more likely to promote a co-operative approach to resolving native title,'' she said.
This story was found at: http://www.smh.com.au/national/mabos-native-title-victory-squandered-says-judge-20130531-2nheg.html
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