A Journey That's Bittersweet

An opinion piece
Author: Justice Katrina Banks-Smith
Published: The West Australian
Date: Monday, May 30 2022

By the watershed Mabo decision the High Court declared what was always understood by Aboriginals and Torres Strait Islanders- that they were entitled to their traditional lands in accordance with their laws and customs. The Native Title Act was passed in 1992 to give statutory force to Mabo. The powerful preamble to the Act acknowledges the dispossession of lands. The disadvantages that have followed. The need to rectify the consequences of past injustices.

The Federal Court is the court which makes native title determinations. As a judge of the court, I have made determinations in claims brought by the Warrwa Mawadjala Gadjidgar people, the Boorroola Moorrool Moorrool people, the Malarngowem people and the Birriman-gan people, amongst others.

The Act provides pathways for Aboriginal groups to seek the formal recognition of their pre-existing native title rights by application to the Federal Court. The efforts required to achieve a determination are often arduous, with some taking many years to complete. But 30 years on there are vast areas of Western Australia where native title has been determined. A good example is the East Kimberley, where some 97 per cent of the areas the subject of claims have been determined.

A determination requires detailed evidence about connection to country, including the claimants' use of the land and waters, their spiritual and cultural connections, and their relationships through ancestors, language or skin. Evidence must be gathered carefully and respectfully. Some is gender sensitive. Many witnesses are elderly. Anthropologists and linguists are engaged to assist. There can be disputes about geographic areas and about who is entitled to be recognised as a member of the group that holds native title rights. Most proceedings involve long mediations. The importance of nuances of language and culture cannot be overstated. There are words which frequently cause miscommunication with speakers of Aboriginal languages, and concepts that cannot easily be reduced to the written word.

Sometimes the process of determining claims takes many years. Sometimes members of the applicant groups do not live to see the outcome. Work in this area can be bittersweet for all involved.

The Act includes provisions that encourage accelerated "consent" determinations. These require the acceptance by the State on behalf of the community of a claim, generally based on anthropological evidence, and if the Federal Court is satisfied as to the process that has been followed it will make an order recognising native title.

The judges of the Federal Court are acutely aware of the significance of the decisions that we make, but the real work is done at the level of evidence gathering and preservation. This includes recording stories that have been passed on orally by the generations, often with references to mythical creatures or spirits attached to particular geographic features in those areas. Songlines are important walking routes that link important locations. There are common stories of warning that a particular tree or hill has dangerous powers, or references to certain places where the spirits of the old people will help you. There might be a common concern that visitors or country may be physically or spiritually harmed if proper protocols are not followed. Any written documentation of people, customs and language in the area, including from early pastoralists and explorers, is examined. It is a bundle of different evidence that shows that a group has maintained identity and existence to the present day and has connection to country.

Sometimes the court is invited on country to hear evidence and deliver decisions. Anyone who has the opportunity to go out into the vast areas of the Pilbara, Kimberley and Western Desert is affected by the ancient landscape. I can only imagine the depth and power of connection for those whose history with this land goes back thousands of years.

The Mabo decision was the first step in returning country to those who always owned it. I was lucky enough to see its legacy first hand on a recent trip to the striking DeGrey River area of the Pilbara. The Ngarla traditional owners and custodians of that country, Nora and Colin Cooke, and their family Ross Councillor and Drusilla, Andrew and Justin Dhu, very generously allowed me and my family access to this beautiful country, and a glimpse of how they enjoy, treasure and respect it. Native title rights were recognised in 2007.

There are still many injustices to address. We are now seeing compensation claims coming to our court following the High Court's decision in Timber Creek. There are disputes between members of Aboriginal groups as to who should make decisions about native title. There are allegations of corporate mismanagement. There is much work still to be done. But there have been many successes, and they should not be overlooked.