Unfinished Business in the ACT

Truth-telling about Aboriginal land rights and native title in the ACT
by Ed Wensing

Successive ACT Governments have said they are committed to a respectful relationship with the Aboriginal and Torres Strait Islander peoples living in the ACT and to working closely with them.

The Parliamentary Agreement between ACT Labor and the ACT Greens commits the ACT Government to embarking on treaty discussions and rescinding certain restrictive clauses in the 2001 Namadgi National Park Agreement during the term of the 10th Legislative Assembly for the ACT.

If an ACT Government is to progress treaty discussions with the local Aboriginal peoples of the ACT, the unfinished business of Aboriginal land rights and native title in the ACT cannot be ignored. It is a matter of public record that their land was taken from them without their free, prior and informed consent, without a treaty and without compensation for their losses. There is therefore a gaping void in the truth about the ACT’s past that needs to be addressed. The issues of sovereignty, land rights, self-determination and the need for a settlement in the ACT can no longer be ignored or denied.

There are many reasons why Aboriginal land rights and native title in the ACT have remained as unfinished business for so long. Including:

  • The Aboriginal peoples of the ACT region were not consulted and their land rights and interests were not considered when the Territory was established in 1909 and when self-government was granted to the ACT in 1989.
  • The assumption that all native title in the ACT was extinguished by the transfer of the land from NSW to the Commonwealth in 1911 or by previous land grants by NSW is questionable.
  • No native title claims have been considered by the Federal Court of Australia for a host of different reasons, not always relating to the merits of the claim.
  • The genealogical studies that have been carried out by various parties over the years do not address the requirements of s.223(1) of the Native Title Act 1993 (Cth).
  • Restrictive clauses imposed on the Aboriginal parties that signed the Namadgi National Park Agreement in 2001 have prevented the preparation of any new native title claims.
  • The lack of agreement amongst the Aboriginal families of the ACT about these matters.
  • The overall lack of resources and commitment by successive Commonwealth and ACT Governments to address these matters in a comprehensive and meaningful way.

The ACT does not have the luxury of amending a constitution because the ACT does not have one. But the ACT Government can negotiate a settlement, can pass a statute giving recognition and stature to the contemporary Traditional Owners of the ACT, and can establish the rules for coexistence and power sharing. The ACT Government should want this as much as the Aboriginal peoples want it because it sets the basis of the relationships the ACT Government needs to have with the contemporary Traditional Owners of the ACT. A relationship based on mutual respect, parity and justice.

The ACT Government should not be afraid to follow the examples set by Victoria, Queensland and the Northern Territory in commencing treaty discussions about possible ways of resolving the matters of sovereignty and self-determination, including over land rights and native title.

Three possible options for resolving the unfinished business of Aboriginal land rights and native title in the ACT include:

  • Establishing a statutory Aboriginal land rights scheme, similar to that in New South Wales or the Northern Territory;
  • Developing a comprehensive settlement which is registered under the Native Title Act 1993 (Cth), similar to the Noongar Native Title Settlement in SW Western Australia; or
  • Developing an alternative native title settlement scheme, similar to the Traditional Owner Settlement Act 2010 in Victoria.

Each of these options are not without their attendant risks and opportunities and will take considerable time, effort and good will by all concerned to achieve amicable and sustainable long-term outcomes. Especially if they involve the extinguishment of native title rights and interests and the consensus of all native title claimants or holders is required.
In terms of progressing these matters, the following steps are vitally important:

  1. Acknowledging that Canberra is on the lands of the Traditional Owners or native title holders (whoever they may be), that the land was taken from them without their free, prior and informed consent, without a treaty, and that they have never been compensated for their losses.
  2. Establishing a Truth and Healing Commission under the Inquiries Act 1991 (ACT) to investigate both historical and ongoing injustices committed against the Aboriginal peoples of the ACT since colonisation by the state and non-state entities, across all areas of social, cultural, political and economic life, and with the clear intention of addressing past grievances by mutual agreement with all concerned.
  3. Unilaterally withdrawing the restrictive clauses in the Namadgi National Park Agreement and providing NTSCORP Limited with sufficient resources to assist the Aboriginal families with preparing their native title claim(s) and resolving internal conflicts.
  4. Undertaking a thorough search and analysis of the historical land tenures and land transfers from NSW to the ACT in 1911, including identifying what was Crown land in 1911 and what has happened to that land through to the present.
  5. Publicly releasing all previous legal opinions/advice on these matters so they can be on the public record.
    The truth is that we have failed the Aboriginal peoples of this region in the past. We cannot erase the past, but we can change the future. We can, and should do better, because continuing failure in this space is no longer an option.

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