An opportunity for commercial native title rights?
A case currently reserved for judgment by the Full Court of the Federal Court might just move Australia’s native title law closer to realising its potential to be a tool for Aboriginal people to use in achieving economic prosperity.
In those cases, Justice North found that both the Pilki and the Birrilburu held, and had always held, the right to access and take the resources within their territory for any purpose, including commercial purposes (as long as it was consistent with traditional law).
This was a big step in native title law, because in more or less every other native title case that has ever been decided in Australia, the native title rights that judges have found to exist have been limited so that they must be used only for non-commercial purposes.
There are many reasons why this is the case. One major reason is political – from the beginning, Australian native title law has been written to ensure it is conservative in what rights it recognises, because large sections of the non-Aboriginal public were frightened of what rights might be taken from them. A second reason, closely related to the first, is an evidentiary problem – native title law requires evidence that all the native title rights sought existed at the time of Australia’s conquest by Britain, or have developed since that time in accordance with Aboriginal traditional law. This is extremely hard to prove. Both these difficulties, and many more besides, were finally overcome in these two decisions of Justice North.
However, the Western Australian Government has appealed Justice North’s decisions. The appeal was heard by three judges of the Federal Court (called a ‘Full Court’) in May this year. We are still waiting to find out what they decide. Their decision is likely to have significant repercussions for the future of native title law in Australia.