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Now to the story...

No progress on native title in Australia's southern states

Extract from The Melbourne Age, on June 3rd 2001.
Story by: Darrin Farrant

It's simple, Patrick Kennedy's place. The corrugated iron shack near Antwerp, in Victoria's west, has three rooms, dirt floors, no electricity, no phone and no running water. Lately it's been leaking a bit since white ants got into the roof.

But this place is also a few hundred metres from where Uncle Patrick was born, near the banks of the Wimmera River, and it's on the same land where he has spent most of his life. This place is home.

The Wotjobaluk elder, 72, wants native title to be recognised for the small parcel of land around his house. It's part of a much bigger claim by his people to thousands of hectares of Crown land (much of it desert or national park) across the Wimmera. The claim was first lodged in 1995, and yet today a resolution remains far away. Now Uncle Patrick, who is battling severe kidney problems, wonders whether his poor health may claim him first.

Nine years after the High Court's Mabo judgment, and seven years after the State Government pushed through laws to apparently reflect the changes, native title has not been recognised anywhere in Victoria. Nor is there any immediate prospect of a claim being resolved.

Some critics blame the intransigence of the current and previous state governments. Some say the claims are too broad. Others say Victoria simply does not have the right kind of history and geography. Whatever the reason, the state's indigenous people are increasingly doubtful that the native title system can deliver the justice they want.

Campbell Thomson, a barrister working for Mirimbiak, the corporation set up to run native title claims on behalf of Victorian Aboriginal groups, says that in many senses the system is failing. Claims can spend years being processed and mediated and even then they may still have to go before the Federal Court to be decided.

"It's failing because we inherited a bureaucracy opposed to native title ... We're in mediation (the Wotjobaluk claim) - meetings about having meetings in effect and lots of meetings about how we should talk about things."

Native title is not only a new area of law, but a complex one. It has not been helped by the convoluted legal and administrative machinery hurriedly put in place after Mabo by state and federal governments.

The Victorian Farmers Federation's general manager of policy, Clay Manners, says the resolution of claims (often contested by literally hundreds of different respondents) are always going to take time. He wonders whether the original expectations of many participants were realistic.

Victoria is not the only state having problems; neither South Australia, Tasmania nor the ACT have recognised any native title yet either. One theory is that it is much harder for Aborigines in southern states to show the necessary continuing connection to land because of the greater colonial contact and development there.

Mr Thomson says many Victorian indigenous groups, for example, were placed on missions and forbidden to practise their rituals. He is furious with the stereotypes about what is a "real" native title-holder. "You don't have to conduct corroborees to be an Aborigine with a traditional culture that is connected to your country."

Mr Manners, though, thinks many of the claims made so far have been unnecessarily broad, covering so much territory that inevitably the disputes take much longer to resolve. The Wotjobaluk claim has drawn hundreds of respondents, from graziers to miners to beekeepers.

"I suspect the Wotjobaluk people are mainly interested in land adjoining the Wimmera River, not some unused road up the back of Stawell. This system is gummed up with that sort of thing."

The hopes of all sides were raised when the Bracks Government took office in 1999 and Attorney-General Rob Hulls made the resolution of native title claims an immediate priority.

Early last year Mr Hulls personally visited key sites in the Wotjobaluk area, such as the scar trees from which bark canoes were carefully carved. He said the claim should be resolved by the end of 2000. Yet the Aborigines say that since then, government negotiators have stalled, especially over the issue of connection reports.

The reports are anthropological documents that detail Aborigines' continuing connection to an area, and are used to determine the bona fides of an application.

Last year Mr Hulls said the connection reports would be less important in negotiations, a move welcomed by Aborigines who say the reports are expensive and difficult to prepare.

But Mr Thomson said cabinet has still not approved the policy - even though a consultant's report on the issue was handed to the government late last year.

Uncle Patrick sees a pattern repeating itself. "I don't see any change. Not a bloody thing. They're all blaming one another."

Mr Thomson suspects political winds are at fault, especially given the bush's role in bringing Labor into power in 1999. "If you have a very slender majority, it doesn't make sense to want to disturb that majority."

But a spokesman for Mr Hulls says the mediation is going well and points out that members of the National Native Title Tribunal, which supervises the negotiations, have expressed confidence in the process. In last month's budget, the government also agreed to spend an extra $7 million on handling native title claims.

"Obviously it is seven years since the laws came in," says the spokesman. "But it's still reasonably early days for the Bracks Government and this issue is very high up on the government's agenda. This is a complicated issue but the government is working as quickly as possible."

For the Wotjobaluk, there have been small steps forward. An indigenous land-use agreement was reached on some land in the town of Birchip and a similar deal was struck with mining groups. But they affect only a tiny part of the overall claim.

Jack Kennedy, Patrick's 82-year-old brother, fought in Syria in World WarII.

He says many of the local Aborigines have, and will continue to, practise their traditional ways, such as hunting and fishing, regardless of whether a government or a court formally recognises native title.

"We're not going to let that stop us ... (But) if we can win the claim, it will not just be for today, it will be for the future."



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