'Back-door' Extinguishment Through Inadequate Resourcing

A racially discriminatory aspect of the Commonwealth's approach to native title which has received comparatively little consideration is the ongoing but avoidable extinguishment of native title caused as a result of the deliberately inadequate resources provided to indigenous bodies charged with protecting native title.

Native title is a unique form of land title in that the onus is on indigenous people to prove native title continues to exist and has not been extinguished by Government action; and in that there are no reliable common law procedural rights protecting native title against the threat of extinguishment. Non-indigenous titles do not suffer there.

To remedy this discrimination, the Native Title Act provides processes to prevent the impairment or extinguishment of native title without some involvement of native title holders. The linchpin in these processes are Native Title Representative Bodies (NTRBs), which represent native title holders, respond to actions affecting native title, organise Federal Court litigation, as well as a myriad of other support activities. Consequently, there is a crucial nexus between protecting native title against extinguishment and appropriate resourcing of NTRBs.

An independent report to ATSIC found that to implement the 1998 Native Title Act amendments, funding to NTRBs would have to be drastically increased. Despite this, the Commonwealth has ensured a freezing of funding at 1997 levels. NTRBs therefore simply cannot properly undertake their obligations to protect native title from extinguishment, resulting in delays, uncertainties and confusion for all. Such difficulties are being experienced by NTRBs throughout Australia.

As NTRBs are deliberately plunged into crisis, the mechanisms established to protect non-indigenous title are properly resourced and remain strong. Inadequate resourcing of NTRBs is a form of racial discrimination.