Site navigation

Speech Title: Proactive engagement with the Native Title system

Event: Native Title Development Program

Date: Wednesday 1 August , Start:  6.00 - 7.30pm

Audience: Native Title Representative Bodies, Chief Executive Officers and Management staff

Length: 30 minutes with a panel session.

Where: Westpac Conference Centre – Ingleside, Sydney

Details: Dinner Session:  Standards of Agreement-Making and Human Rights Compliance

DISCUSSION: Panel Members: Tom Calma, Vanessa Jackson &  Brian Wyatt

Close session:   7.30pm

---

Proactive engagement with the Native Title System

I’d like to acknowledge the traditional owners of this country and pay my respect to Elders past and present.   I’d like also to acknowledge my fellow panel members and thank Richard for inviting me to speak tonight. 

I have been asked to discuss a number of topics with you tonight, including

• ‘dealing with government’,
• ‘community development’, and
• ‘building supportive networks’. 

I hope that by the end of my speech and our presentation tonight we will have touched on all of these areas to some degree.  We are also going to convene a panel after my presentation where you can ask questions on a range of issues relating to Indigenous affairs and Brian Wyatt will share with us some of his experiences in the international arena over the past year.

Tonight I would also like to reflect on some of the interesting findings of the HREOC National Survey on Land, Sea and Economic Development.   As you may be aware this survey informed a significant component of the Native Title Report 2006.   

However, firstly I thought I might talk briefly about my role as the Aboriginal and Torres Strait Islander Social Justice Commissioner and why the Reports I produce are so important.

So, let me start by giving a brief description of HREOC.  As you may know HREOC is a national, independent, statutory body established under the Human Rights and Equal Opportunity Commission Act 1986.  It has a President and five Commissioners.  HREOC’s enabling legislation confers specific human rights protection and promotion functions.  In broad terms, these functions are addressed under four areas of action: 

• Human rights education and promotion
• Inquiring into discrimination and human rights complaints
• Human rights monitoring
• Policy development and legislative reform

I have a dual role at HREOC as the Aboriginal and Torres Strait Islander Social Justice Commissioner and the Acting National Race Discrimination Commissioner.  As the Aboriginal and Torres Strait Islander Social Justice Commissioner my functions are to monitor the enjoyment and exercise of human rights for Indigenous Australians including human rights as they relate to native title.  Under the HREOC Act and the Native Title Act, 1993 (Cth) I am required to produce annual Social Justice and Native Title Reports.  These reports are tabled in the Federal Parliament and the AG sends them to his state counterparts and Ministers of Indigenous Affairs. 

My most recent Social Justice Report 2006 focuses on new ‘whole-of-government’ arrangements in Indigenous affairs.    

The report documents the broad government commitments to overcoming Indigenous disadvantage.     My analysis shows that many of the government commitments are not being met because of a lack of strategic focus detailing how the difficult and important jobs are to be done.

I reported that the most significant problem with the government’s approach is the lack of capacity for engagement and participation of Indigenous peoples. This manifests as a lack of connection between the local and regional level, up to the state and national level.  This also means that there is a disconnection between the making of policy and its implementation.

My Native Title Report 2006 focuses on economic development activity on Indigenous-owned land.  It contains findings from a national survey of Indigenous land owners and you as their representatives about their capacity to realise their aspirations for their land and to understand and engage in agreement- making for economic development.  It also contains five case studies describing various economic projects and initiatives on communally-owned Indigenous land.  Both reports are on the web and I commend them to you. 

In addition to the reports I engage in a wide range of other human rights public education activity.  This includes delivering speeches such as this one today.  I am also regularly involved in drafting media releases on matters affecting Indigenous Australians, drafting newspaper opinion pieces, journal articles, and making radio and television appearances.  As part of my work I also hold consultations with a range of peak bodies, community groups, NGOs, parliamentarians, business and industry groups, academics and government officers on human rights matters as they impact on Indigenous Australians, and provide submissions to parliamentary committees.  For example, recently I provided four submissions to the Federal Attorney General on the proposed amendments to the Native Title system as well as a submission to a Senate Legislation Community Affairs Committee on the amendments to the Northern Territory Land Rights Act.

In the absence of a national Indigenous representative body,  the role of the Aboriginal and Torres Strait Islander Social Justice Commissioner is paramout to putting the issues faced by Indigenous people on the table to be addressed by government through policy and legislation

Through the reports I produce, I am able to advocate and lobby on behalf of Indigenous people and their representatives, to represent aspirations and issues of regional and national relevance. 

However, these reports are not just about identifying the issues.  They must also be about promoting the participation of Indigenous people and their communities in the development of solutions.   

My experience working within government, has shown me that the only way to do this effectively is through unwavering strategic diplomacy.    This means that forming constructive meaningful partnerships with the government goes a long way to producing meaningful outcomes for people on the ground.

In order for me to advocate credible strategies, the advice and recommendations I provide in my reports must be evidence based.   This is where I rely on individuals, community, the leadership, and representative organisations to provide feedback through surveys, requests for information and suggestions for case studies.   

Information provided by you and your clients is invaluable to illustrate to government where the gaps are and how we go about filling the gaps.  The positive feedback received from government about the Native Title Report 2006 and the HREOC National Survey on Land, Sea and Economic Development demonstrates this.   

Let’s have a look now at some of the findings of the HREOC National Survey.

As leaders of representative organisations at the coalface you are responsible for:

• the facilitation of native title rights and access to lands;
• engaging intimately with the main stakeholder in this process, Indigenous people; and
• facilitating the relationships between the traditional owners, government and industry.

There are lessons to be learnt from the key messages relayed in the findings of the survey.  Some of these messages have come from the Native Title Representative Bodies themselves.   

As we are all aware, the current policy position of the Australian Government is for Indigenous people to take hold of the opportunities provided through funding and support programs, generate capital and undertake economic development in their communities and on their lands.  Particularly, opportunities for home ownership. 

A key finding of the Overcoming Disadvantage Key Indicators 2003 Report was that economic development is central to improving the well being of Indigenous Australians.

The HREOC survey identified a distinct disparity between the governments’ economic development agenda on Indigenous lands and the importance to the traditional land owners of economic development on land. 

The survey revealed that while traditional owners are most likely to value their position as the custodians of their land and seas above all other roles, a traditional owner from the Yorta Yorta nation pointed out that

economic development is an important tool in which to gain self determination and independence, but it should not come at the expense of the collective identity and responsibilities to your traditions, nor the decline in the health of your country.1

The Native Title Report advocates innovative ways that Indigenous people can utilise mainstream processes to maximize opportunities for cultural, economic and community development through native title and other forms of agreement making.

However, in order for us to do this successfully, Indigenous people must be active participants in setting the development goals and agenda’s for our communities and our lands.   

The Australian Government is currently failing in its obligation to ensure that its policies, legislation, and practices are inclusive of a human rights based approach to development, which makes provision for:

• the right to self-determination;
• the right to the protection of culture;
• economic, social and cultural rights;
• free, prior and informed consent; and
• equality before the law.

This failure has been highlighted with the amendments to the Aboriginal Land Rights Act (Northern Territory) 1976 providing for the 99 year lease scheme, and more recently with the proposal for 5 year leases as a component of the welfare reform process in the Northern Territory. 

As representatives of Indigenous stakeholders you are placed in a precarious position.  You have statutory obligations and timeframes to meet, set by governments and other external influences.  And you also have to ensure that all measures have been taken to achieve the best possible outcome for your clients.   

So let me elaborate a little on what a human rights based approach to development means.

As I have just mentioned Principles relating to self-determination, non-discrimination, equality before the law and minority group cultural rights have been interpreted as requiring this.   It is also set out in the Declaration on the Rights of Indigenous Peoples that was adopted by the UN Human Rights Council in June 2006, and – although its future is unclear – it may be adopted by the General Assembly in late 2007.

The requirements for participation have been expressed as the principle of free, prior and informed consent that I will discuss in a minute or two.   At the international level, this is gaining wide acceptance.  United Nations agencies are guided by what is known as the Common Understanding of a Human-Rights Based Approach to Development Cooperation. This integrates policy and program development for human rights, development and poverty eradication.    It is based on the recognition that people are key actors in their own development, rather than simply being passive recipients of services. 

I also recommend a series of guidelines that were developed at a UN workshop here in Australia. The guidelines, entitled Engaging the Marginalized are for governments, the private sector and civil society. They outline ways to engage with indigenous people based on human rights standards. They are available online at the HREOC website.

The most important consideration for you as the facilitator’s of positive engagement in the system is that your clients are able to provide their free, prior and informed consent to agreements or activity taking place in their communities and on their lands. 

In relation to development activity, the principle of free, prior and informed consent requires that:

• no coercion or intimidation is used to gain consent;
• consent is sought and freely given well in advance of authorisation of development activities;
• full information is provided about the scope and impacts of the proposed development activities on their lands, resources and well-being; and
• that Indigenous people have the choice to give or withhold consent over developments on their lands.

A traditional owner from North Queensland expressed his frustration regarding people’s capacity to give their free, prior and informed consent.   He said

Stop giving us tonnes of paperwork that we don’t understand, put it clearly in simplified plain English, otherwise people sign on the dotted line without understanding what they’re signing to.2 

A number of you have also expressed similar frustration.   You told us that:

The level of understanding varies between individuals.     While most community leaders within claim groups have a good understanding, many of the other claimants do not.

Whilst the timeframes provided enable consultation to occur, the quality of the resultant consultation is not always ideal.   More time would often provide better informed decision making.3

And

There is often insufficient funding and resources available.   Increasingly time and effort is diverted away from communication with claim groups to comply with funding requirements, court requirements, legal requirements and so on.

It is very difficult to comply with all of the myriad of requirements of funders, courts, the State, other parties as well as spending time on explaining processes to traditional owners.  The terminology and concepts are also often very difficult to convey in culturally appropriate ways, with most meetings and discussions having long agendas and little time to spend on details discussions.4

The first lesson we can learn from the survey results is that there is a critical need for plain English explanations of:

• what is native title;
• legal processes including the difference between State and Federal legislations and land regimes;
• practical implications on the ground; and
• in relation to economic development, what support is available and how to access that support.

Respondents to the survey considered these requirements as essential to effective Indigenous participation in negotiating native title and land tenure outcomes that met responsibilities as custodians and also supported their economic development aspirations and opportunities. 

Traditional owners are frustrated at trying to engage effectively in the native title and land tenure system.  Traditional owners who completed the survey indicated that they do not have a good understanding of land agreements. 

Only 25 percent of traditional owner respondents claimed to understand the agreements they were signing.  They identified the lack of understanding of the native title legal terminology and process as the main factor preventing their understanding of land agreements, followed by the lack of an Indigenous perspective and lack of information.

This is interesting considering that 60 percent of responses from their representative bodies claimed that traditional owners were able to understand agreements. 

This raises questions about whether representative bodies are aware of levels of comprehension amongst traditional owner groups.    Based on this evidence it would also suggest that the majority of traditional owners cannot confidently participate in negotiations and this limits their ability to realise and leverage opportunities.

So what can rep bodies do to improve their engagement and consultation with traditional owners and Indigenous communities and increase their understanding of land regimes and agreement-making?

A key message from the survey findings is that information and explanation is the key to overcoming limited levels of understanding.  An information and education campaign is required to ensure understanding of the negotiation process. 

Then once there is an agreement, that there is capacity to execute and manage the requirements under that agreement. 

Targeted assistance in the form of workshops, plain English guides, and application templates is necessary.    These workshops could be conducted at land summits, cultural festivals and at traditional owner pre-negotiation meetings. 

The second lesson we can learn from the survey relates to how we can build capacity with our clients to progress economic and community development on their lands. 

42% of survey respondents claimed that they need skilled personnel to support them.    39% of survey responses identified funding, or an income source, to progress and support development on land. 

13% of respondents identified a need for training and employment. 

Experts in the areas of mediation and negotiation, business development and management, and corporate governance are required to raise the capacity of Indigenous people’s to effectively engage in land processes and achieve their desired development outcomes.    

The Australian Government has increased the number of programs available to support Indigenous business including loans schemes and support funding.  These are managed through Australian Government departments, Indigenous Business Australia and the Indigenous Land Corporation and some state programs.

While there are some good programs, the initiatives require individuals or groups to apply for funds.    In many cases it is only those communities and individuals who are business literate or who have appropriate supports that are able to access these programs.

Survey results showed that less than 50 percent of representative bodies and traditional owners who completed the survey were accessing Australian Government funds. 

Only 44 % of the NTRB survey respondents are receiving land development funds or funds for projects on land.    As we received survey responses from all but two of the NTRB’s operating in Australia, these findings are an accurate representation of actual activity.   Although, this data does include those Native Title Service Providers who have no mandate to manage economic development and are only able to resolve native title claims. 

According to the survey findings, rep bodies are limited in their capacity by statutory and funding obligations and are unable to support traditional owners in enterprise development.  As explained by North Queensland Land Council

The Office of Indigenous Policy Coordination sees the funding we receive as relating to core functions,  that is, native title claims.   We are restricted in the use of funds and are not allowed to help in collateral ways.  Any involvement in securing land or use of land other than by the recognition of native title has to be seen to be as a matter incidental to native title and as part of the negotiation of native title rights.

While it is recognised that native title funding is linked to functions prescribed in the Native Title Act, time and resource constraints as well as the difficulty in completing complex funding applications and meeting the application criteria also restrict access to these programs. 

As I discussed earlier, this highlights the importance of developing positive relationships with government and demonstrates the need for skilled personnel and business expertise to access program funding and to strengthen economic development agreements.   

For those communities without independent sources of capital, or major mining interests, bilateral assistance from government is essential.  Governments need to ensure that communities with the greatest need for resources have the appropriate support to access available program funding.    Reliable data will assist governments to assess the barriers that exclude some Indigenous groups from obtaining program funding.

So while there is a significant role for government in addressing some of these barriers we must also be strategic about economic and land development opportunities.

As representative bodies you have potential through Indigenous Land Use Agreements to negotiate economic development outcomes and the support that is required for Indigenous people  and their communities to achieve outcomes, but also to ensure the development of capacity for future independence and self determination. 

The Argyle Participation Agreement case study included in the Native Title Report 2006 demonstrates this.    Traditional owners, with support from business advisors, provided for by the agreement, have since negotiated an Education Program that provides scholarship opportunities for their community by leveraging monies derived from the ILUA to obtain government funds through a Shared Responsibility Agreement. 

This is a prime example of Indigenous people utilising mainstream processes to maximise opportunities for cultural, economic and community development through native title and other forms of agreement making.

Consequently, the second key message from the survey results is that we must be innovative in our approach to development on land and utilise all avenues of funding and support to ensure the most beneficial outcomes are achieved. 

The second part of this message is that traditional owners and Indigenous communities want to be able to do business themselves and ‘we’ – meaning you as rep bodies and myself as the Aboriginal and Torres Strait Islander Social Justice Commissioner, are in a position to identify the barriers to and negotiate the requirements for capacity development to ensure this.

Finally, I would like to congratulate you on the establishment of the National Native Title Council. 

This group as a national representative organisation has the potential to be a driving force in lobbying government and industry to progress the development aspirations of Indigenous people on their lands and for their communities.   You also are in a position to demonstrate to government that Indigenous representation at the regional and national levels is required to effect meaningful change.     I’m sure I have no need to emphasize the importance of credibility as a national representative organisation.  This can only be achieved through a united front, and effective consultation and engagement with all stakeholders, most importantly Indigenous people on the ground.

The challenge we face is making rights real.   I look forward to working with you to create an efficient mechanism where our Indigenous peoples are represented in total equality with the non-Indigenous sectors of society and rights become a reality.

Thank You.

---