Welcome to BRR Media.  Today I’m joined by Marshall McKenna, who’s a Partner in the Litigation Group with a focus on Native Title and Resources.  Thanks for joining me Marshall.

Pleasure to be here.

Marshall it’s been 20 years since the Mabo decision was handed down, just how significant was the High Court decision?

It was extremely significant.  The 1976 landmark decision in Milirrpum v Nabalco had said that there was not a communal title that could be recognised in Australia; Mabo changed that.  It said that there could be a recognition of Aboriginal rights and interests arising under their traditional laws and customs.  Set aside the whole issue of Terra Nullius, the empty land doctrine that had applied before then.

Just turning to the decision itself, can you take us through the key aspects of that decision?

The most important aspect was the recognition that the indigenous people could retain rights and interests that arose under their traditional laws and customs and from sovereignty, provided those traditional laws and customs still existed.  Other key aspects of the decision were that the legislature and the executive could do things and have done things which extinguish native title, granting exclusive possession leases, granting the vesting of parks and so forth.

What was the reaction to the court’s ruling, both from the indigenous community and the wider Australian community?

It was very mixed.  There was a really good 4 Corners report which gives a lot of detail, but in summary the Government of Western Australia over acted, enacted some legislation that purported to extinguish native title through the whole of the state, that was struck down by the High Court.  There were suggestions that everyone’s backyard was under risk.  On the other hand the indigenous community were both happy at recognition that Australia wasn’t unoccupied when settled by the Europeans, but on the other hand concerned that the new law would somehow restrict their rights.

And now 20 years on, have the expectations of the indigenous community around this decision been met; and have some of the concerns expressed by some in the business sector eventuated?

The answer to that question is rather complex.  On the one hand in relation to indigenous communities things are varied across Australia.  Some areas there’s been recognition of exclusive native title, some non-exclusive and in some areas there’s been a recognition that native title just cannot exist given the disruption caused by European settlement.  In relation to industry, particularly mining, the fears that mining would grind to a standstill in Western Australia and Australia generally haven’t been obviously met, but there is clearly a new group of stakeholders who have legislative standing under the Native Title Act.

And finally have all the issues around Native Title now been resolved?  If not, what’s left to be resolved?

I think many of the key issues have been resolved but there are still very many aspects of native title which have yet to be sorted.  I mean apart from anything else the Act’s gone from metric to imperial, when that was enacted it was about 1cm thick, now it’s an inch.  So there’s obviously a greater legislative complexity.  I think the key question is when will the legislation allow native title groups to veto development, it can happen in very rare circumstances, but the case law is just developing in that regard.

Marshall, thank you very much for your insights today.

Thank you for your time.