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dural rights should be designed to impinge
on traditional structures as little as possible, but even with the best will in the world
there are limits: it is simply not feasible to
graft liberal procedural rights onto a system
of traditional law and custom without causing some friction and a certain amount of
underlying cultural transformation.
• New procedural rights do not escape the
gravity of underlying political and
economic pressures: in the end it was hard
not to think that the native title system
mainly functioned to facilitate resource
development. A true right of veto would
have made the situation very different as it
would have given traditional landholders
the genuine capacity to decide whether or
not to participate in the resource economy
on a case-by-case basis.
• Adequate resources and expert advice is
essential to ensure that indigenous peoples
are fairly able to utilise procedural rights to
their advantage.
• Standardising procedures, cost recovery
measures and cross communications
protocols can go some way toward
maximising rights and opportunities.
• Rightly or wrongly, the participation of
indigenous people in the system was
confined by the limitations placed by a predefined process, including the absence of
any right of veto.
Conclusion
Any system which creates rights for indigenous people – no matter how well
intentioned or designed – will still
inevitably have a transformative effect to
the extent that it requires the people in
question to act and think in new ways. In
Australia, the Native Title Act did succeed
in giving indigenous people a seat at the
bargaining table every time a resource
developer wanted to mine or explore on
land under claim. The consequence was
large-scale benefits coming into indigenous
communities and development causing
less destruction than it may have otherwise
entailed. But it would be wrong to imagine
that native title in Australia acted as break
on development. Far from it, the native title
system provided a way of bringing traditional indigenous rights in land within
Australia’s resource economy in an orderly
way. Things changed, so that things could
remain the same.
CONTACT DETAILS
David Ritter
Head of Biodiversity
Greenpeace UK
Tel: +44 77 1770 4595
Email: david.ritter@greenpeace.org
REFERENCES
There is an extensive array of writing about the native title system in
Australia. The comprehensive guide to the current state of Australia’s
native title system can be found in Neate G. et al., Native Title Service,
LexisNexis. On the distinctive nature of native title law in Australia see:
Strelein, L. (2009) Compromised Jurisprudence. AIATSIS, Canberra.
The author’s own views on native title as expressed in this essay are
expanded and set out in:
Ritter, D. (2009) The Native Title Market. UWA Press: Perth
Ritter, D. (2009b) Contesting Native Title. Allen & Unwin: Sydney.
Ritter, D. (2010) ‘The ideological foundations of arguments about Native
Title.’ Australian Journal of Political Science, 45:2, pp. 191-207.