Pitfalls and Pipelines - Philippine Indigenous Peoples Links

Chapter 2.2: Challenges at the National Policy Level
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practice and revitalize their cultural traditions and customs. For Australian
aboriginal cultural identity to be recognized, native title must be front
and center in any debate. Native title should be the centrifugal force of
indigenous affairs—the call to action, if you like, that other developmental
reforms flow from.
When Prime Minister Rudd delivered his apology for the suffering inflicted
on the families of the stolen generations, he also promised to move the
nation forward on a new footing, forging new partnerships and closing the
development gaps. Shortly after this, the federal Attorney-General Robert
McClelland, the minister responsible for native title, also emphasized
the government’s intention to do native title business differently. He said
that native title has a crucial role to play in the new chapter of Australia’s
story, although he acknowledged that “we have a long way to go before
we realize the full potential that native title can bring.” 45 The Attorney-
General noted the momentum created by the apology. He made the
point that “just as an apology recognizes and acknowledges the past hurt
caused by the removal of children, through native title we acknowledge
indigenous peoples’ ongoing relationship with the land. To bury native title
in unnecessary complexity is an affront to that heritage.” 46
At the risk of stating the obvious, dispossession is also an affront to that
heritage. The current legal arrangements in native title have the effect
of obscuring the agents of dispossession and blaming the victims. The
former Social Justice Commissioner of the Australian Human Rights
Commission, Mr Tom Calma, identified a few key steps that will need to be
taken in order to bring Australia into line with its international obligations.
Notably, he called for a public inquiry into the issue of compensation
available under the Native Title Act, where the jurisprudence has
manifestly failed to deliver on the objectives of the legislation. The Social
Justice Commissioner’s Native Title Report of 2007 noted that the current
understanding of “traditional” law and custom within the native title system
would need to be changed.
Aboriginal traditional owner groups who have revitalized their traditions in
recent years cannot be recognized as native title holders under Australian
law unless those traditions have been observed, substantially without
interruption, since the assertion of British sovereignty. Leaving aside
the possibility that the assertion of British sovereignty might itself count
as a substantial interruption, the recommendation of the Social Justice
Commissioner is clear: the UN Declaration (Article 11) provides the right
to revitalize indigenous cultures, and the Native Title Act will need to be
amended accordingly.