AIATSIS Summit: Plenary Panel Discussion

AIATSIS Summit: Plenary Panel Discussion

Melbourne Convention Centre

4 June 2024

Katie Kiss

Good morning all – as a Kaanju, Birri/Widi woman, I firstly would like to pay my respects to the Wurundjeri people of the Kulin Nation. I pay my respects to your elder's past, present and emerging, and thank your ancestors and elders for their care of me while I am here on your country.

I have been asked to speak today about how native title fits within a broader human rights and policy context and provide reflections on the role they play in securing durable social justice outcomes.

I come to this discussion through a number of lens’ – this includes as a traditional owner, who experiences country from a distance due to removal policies and practices that almost permanently disconnected my family's physical connection to our lands in Cape York and North Queensland.

But I also come to this discussion through my work in the native title system and now as the Aboriginal and Torres Strait Islander Social Justice Commissioner. In this role, my job is to consider how native title enables and facilitates Aboriginal and Torres Strait Islander Peoples access to – and enjoyment of – their native title rights and interests.

I do this through the lens of human rights. And I consider this more broadly, taking into consideration the connections between native title and other land tenure and management regimes, like cultural heritage, national park joint management arrangements, water and climate change, but also emerging arrangements such as the developing treaty arrangements.

Australia has voluntarily entered into commitments to protect the human rights of ALL people in Australia by ratifying seven major international human rights treaties. 

We also have a domestic regime of anti-discrimination legislation – including federal legislation such as the Racial Discrimination Act, as well as anti-discrimination legislation in each state and territory.

And several states and territories now have their own Human Rights Acts too – Victoria, ACT and Queensland. 

These rights are universal and apply to everyone. In terms of the rights of Aboriginal and Torres Strait Islander peoples, the United Nations Declaration on the Rights of Indigenous Peoples provides the overarching guidance for how those universal human rights are applied in the context of respecting and realising our rights – Indigenous Peoples rights.

In effect, the Declaration or UNDRIP provides the governance framework to support us in our engagement with systems that interact with our rights and interests. That includes supporting our people in the assertion of self-determination, and in determining our governance and decision-making arrangements, our representative structures and our institutions that are established to support our participation in the process.

The Declaration can be viewed through four overarching principles that support all of the individual and collective rights contained within its 46 articles. They are:

• Self-determination
• Participation in decisions that affect us through the principle of Free, Prior, and Informed Consent
• Respect for and Protection of Culture
• Equality and non-Discrimination.

Specifically, Articles 26 - 32 provide that we have the right to our lands, territories and resources that we have traditionally owned, occupied or otherwise used or acquired – and that we have the right to own, use, develop and control those lands, territories and resources. 

The Declaration also gives clear guidance to States and Territories on implementing these rights and interests. States are to provide legal recognition and protection to these lands, territories and resources, giving due respect to our customs, traditions, and land tenure systems, AND they are required to establish and implement, in partnership with Indigenous peoples – a fair, independent, impartial, open and transparent process – to recognise and adjudicate the rights of Indigenous peoples to their lands, territories and resources.

The Declaration was endorsed by the Australian Government in 2009 – it has been in place for 16 years, but has had minimal impact on ensuring the that the native title system works in the best interests of our peoples.

The onus is still on our people to prove we were dispossessed, the extent of that dispossession and how we have fought to maintain a physical and spiritual connection since colonisation. Non-Indigenous rights continue to be given priority over the rights and interests of First Nations rather than treated equally, and our people continue to engage in a system that has not evolved substantially to accommodate our traditional laws and customs, or our cultural governance and decision-making requirements. 

While some traditional owners have been able to successfully navigate the native title system and leverage positive outcomes for their people, the system is not transparent, nor does it enable First Nations peoples to participate effectively in the process – either with governments in negotiations for determinations or in agreement making, and 30 years on, traditional owners are largely unaware of, or unable to track negotiated outcomes contained within ILUA’s, or hold agreement parties accountable to their commitments.

In terms of the next 30 years of native title, we have some big issues to address – in a post native title landscape, we will be engaged in processes that seek to resolve native title compensation, PBC’s will be required to play a much bigger role in the management of country and the relationship with government on activities and impacts concerning their lands and territories, and traditional owner groups will need to consider and engage with establishing treaty governance arrangements – which may or may not be aligned with native title governance arrangements.

So, in this regard, our governance capacity will be critical to our ability to realise our collective rights to our lands, territories and resources, and to leveraging those rights to enable and enact other rights, like the maintenance and preservation of our culture, heritage and traditional knowledge systems, our and rights that support our well-being – health, education etcetera.

In terms of treaty-making, there are lessons to be learnt from our engagement with the native title system: 

• we need to ensure that our priorities and interests are front and centre
• we need to work internally to heal the division and conflict caused to many who have been damaged through their engagement in the native title system, and 
• we need to ready ourselves to come to that table healed and determined to leave no-one behind.

In terms of governments responsibilities in this regard, ALL Australian Governments have signed up to the National Agreement on Closing the Gap. In addition to the targets to increase our rights and interests in our lands and territories by 15 percent, Australian Governments have committed to four Priority Reform Areas – one of which is Transforming Government.

Government needs to sort out the policy and legislative landscape to support the establishment of effective governance and representative organisations, and to operate in our best interests. 

This will require a review of how legislative arrangements support the realisation of our rights and interests – the native title system and the inter-related policy areas that intersect with land rights must be a part of that.

We have 30 years of experience – and lessons learned – in establishing new governance arrangements that seek to reconcile our law and culture with colonial legal requirements. 

We know that we do not have complete control over this – we do not set the platform upon which our processes to establish governance structures in all the relevant regimes plays out. 

We need the time, resources and supports to be able to unify, come together according to our own processes, to work out what WE want, and HOW we want to go about it. 

The Declaration actually requires that we are provided with this. And our experiences in native title illustrate what happens when this doesn’t happen. 

Finally, it will not be possible to come to a sustainable, just land settlement without truth-telling in the broader sense, and also specifically with regards to the native title system over the last three decades. 

If the outcomes of native title, or any other agreement-making are not considered just, then they will never suffice. They will remain just another part of the unfinished business that will need their own truth-telling platform in years to come.