Mabo's legacy: Anger, hope

An island in the Torres Strait, Australia. Photo / Supplied

The landmark Mabo High Court decision that led to laws allowing indigenous Australians to claim native title over vast tracts of the continent has marked its 20th anniversary with both optimism and anger.

The decision upheld a claim by Eddie Koiki Mabo for ownership of land in the Torres Strait Islands and ended the legal fiction of terra nullius ("empty land") used to justify British colonisation.

The court found native title remained intact if the traditional owners could demonstrate a continuing connection to the land, leading to the 1993 Native Title Act that enabled ownership to be claimed through the National Native Title Tribunal and the Federal Court.

Native title has enabled traditional owners to negotiate lucrative deals with miners. But it continues to be criticised and challenged by indigenous groups who say the early promise of the legislation has failed to eventuate.

"The struggle is not over, even when native title rights are won," said North Queensland Land Council chairman Errol Neal.

"All the different levels of government seem to want to do is make it difficult for traditional owners."

Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda said the process of recognising native title had been frustrating, bringing hope and expectation of the return of country on the one hand, but also opening up tensions and wounds around connections to country, family histories and community relationships. Reforms are under way, including moves to bring native title further into line with the United Nations Declaration on the Rights of Indigenous Peoples, and reforms to streamline the claims process have doubled the rate of determinations to more than 20 a year.

Up to the end of last year 177 native title determinations had been made, but a contested claim can take 20 years to settle and there's a huge backlog. Attorney-General Nicola Roxon described the process as "overly slow" and said the Government was investigating ways that parties could agree to ignore the issues of historical extinguishment and accelerate the pace of claims.

Under present laws native title is extinguished if connection to the land is lost, the land has been taken by the Crown, or private ownership has previously been granted, including pastoral and mining leases.