Mabo 20th anniversary sparks future reform

The High Court of Australia’s landmark decision in Mabo & Ors v. State of Queensland [1992] 175 CLR 1 overturned the traditional doctrine that Australia was terra nullius (land belonging to no one) at the time of European settlement, recognising native title rights and interests in Australia for the first time.

Since then, 185 native title determinations have been handed down in Australia, 66 of which have occurred in Queensland, and 141 of those determinations held that native title exists.

Assistant Crown Solicitor Bernadette Wrafter attended the Mabo 20th Anniversary Roundtable hosted by the University of Queensland’s TC Beirne School of Law on 31 May 2012. The roundtable, facilitated by Paul Barclay of ABC Radio National’s ‘Big Ideas’, reviewed the outcomes achieved over the past twenty years in native title, the limitations of the High Court’s Mabo decision, current issues and possibilities for the future.

“The discussion was very informative and I really appreciated the frankness of the participants. While Mabo and the Native Title Act have achieved outcomes for native title holders, there is still much to do,” Bernadette said after the roundtable.

Three days after the anniversary, the Australian Government announced reforms that will see the most significant changes to the native title system since the Mabo decision was handed down.

Speaking at the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) Native Title Conference in Townsville on 6 June 2012, the Federal Attorney-General and Minister for Emergency Management, Nicola Roxon, said the Australian Government would drive reforms to the Native Title Act 1993 (Cth) to ensure a sustainable and fair native title system that creates economic and social opportunities for Indigenous Australians.

“The Government will improve the flexibility and scope of Indigenous Land Use Agreements, create clear requirements for good faith in negotiations and allow parties to form agreements about historical extinguishment of native title in parks and reserves,” she said.

“Importantly, we will clarify that income tax and capital gains tax will not apply to payments from a native title agreement.”

Minister for Families, Communities and Indigenous Affairs Jenny Macklin also announced the terms of reference for a review of native title organisations, to ensure the system is delivering for Indigenous people and communities at the conference. The review will examine native title representative bodies and native title service providers and consider the role and impact of other service providers to native title groups.

Crown Law has two teams dedicated to native title claims and agreements including cultural heritage, and one team dedicated to native title and resources law, with a total of 25 legal staff.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 4 July 2012

Author: Bernadette Wrafter