Native title is a cultural issue, not just a legal one
Published 21 Sep, 2021 · 4-minute read
Jahmillah Johnson, Master of Laws, shares her unique perspective on native title and what needs to happen next.
As a proud Kuku Yalanji, Waanyi, Wangan & Jagalingou, Birri Gubba and Mununjali woman, and a law postgraduate, Jahmillah Johnson sees native title from two angles. Her UQ Master of Laws equipped her with a thorough theoretical understanding of the matter, while her family’s lived experience has demonstrated the real effect native title has on the people involved.
“My cultural identity, combined with my academic studies, has allowed me to see the importance of native title and understand more fully the intricacies of the native title process,” Jahmillah says.
“I became interested in native title during law school, when I realised how much of a direct impact this area of law had on my family in relation to the Wangan and Jagalingou peoples and the Clermont- Belyando Area Native Title Claim.”
Native title timeline
1982 – Native title first recognised in Australian law by the High Court of Australia
1985 – The Commonwealth Government returns Uluru Kata-Tjuta National Park to its traditional Aboriginal owners
1992 – The High Court upholds the Mabo claim, acknowledging native title and ruling that Australia was never terra nullius
1993 – The Native Title Act passes, creating a process for claiming and recognising native title land
1994 – Establishment of the Native Title Tribunal
1996 – The High Court hands down the Wik Decision, ruling that pastoral leases and native title can co-exist
1998 – The Howard Government makes amendments to the Native Title Act
2006 – A federal court ruling upholds one of Australia’s largest native title claims from the Noongar people in Western Australia
2009 – Another federal court ruling upholds South Australia’s largest native title claim from the Adnyamathanha people in Flinders Range
2016 – The country’s longest-running land claim, the Kenbi land claim, settles after 37 years and multiple appeals, reviews and hearings
2019 – The High Court makes a landmark ruling that recognises customary value as a component of compensation
Why do we need to keep improving our approach to native title?
Navigating the complexities of native title can be challenging, even for people with a law degree. And for those who aren’t affected by the rulings and outcomes, it’s not always easy to appreciate the significance of the improvements we’ve made – and the improvements Jahmillah believes we still need.
“It’s important for Australia to continue taking strides in the native title area, because it’s an avenue for native title holders and claimants to create intergenerational economic change that subsequently assists in the Reconciliation process."
“Further improvement is needed in several key areas in order to make it a more just system,” she says.
Jahmillah has plenty of ideas for some steps that we could take towards progress.
“If I had to pick one, I would say legislation that endows sacred sites such as Uluru with their own legal personalities."
Heading in the right direction
There have been recent outcomes we can look to as positive indicators. For example, Jahmillah sees the 2019 Timber Creek decision as an important milestone.
“The High Court of Australia determined, for the first time, the approach to be taken with resolving native title compensation claims,” she says.
“This case is important because, firstly, native title holders may be eligible for compensation for cultural and spiritual loss. Secondly, as the Commonwealth and state governments are primarily responsible for compensating the native title party, it’s likely these compensation costs will be passed on to the proponents.”
But Jahmillah believes we’re still a way off from the just system and perfect world she envisions.
“An ideal future would include a native title compensation scheme that incorporates compound interest,” she says.
“Also, where there is unlocated state land, there would be an opportunity for native title holders to be given back the land under Aboriginal freehold land tenure.”
The 2019 Timber Creek Decision
Jahmillah says this decision ruled that native title compensation claims take three aspects into account when determining compensation:
the loss of the economic value of the native title rights
an amount of interest to reflect the loss of that value over time
compensation for cultural and spiritual loss caused by the loss of native title rights.
Jahmillah sees engaged law postgraduates like herself as the key to unfolding this future.
“My Master of Laws equipped me with enhanced research skills and analytical skills, and it ultimately developed my higher-level thinking regarding how contemporary community standards and financial practices influence current laws,” she says.
“These skills have helped me remain cognisant of how the law is never black and white and is rather reactionary and malleable over time."
“In a Master of Laws program, foundation subjects are assumed knowledge, so there’s scope to build upon and expand on that knowledge base in an academic space. Therefore, graduates develop a higher level of understanding of specialised areas of law.”
"Master of Laws graduates can help create this future by conducting the research and synthesising relevant information to come up with innovative and practical solutions."
We know legal postgrads and professionals have already achieved some significant milestones around native title. What remains unknown is what the next few milestones will be.