Chapter 1: Native title and the right to development

• The right to development
  • Non-discriminatory Development
  • Participatory Development
  • Culture and Development
  • Development that realises economic,
    social and cultural rights
  • Self-Determined Development
• Sustainable Development
• A sustainable development framework for
  native title negotiations
  • Sustainable Development Relies on an
    Effective Process
  • Sustainable Development Requires Capacity
    Development
  • Partnerships
• Footnotes

Australia is a wealthy nation. In 2003, Australia ranked fourth in the
United Nations Human Development Index ⁽¹⁾
indicating Australians enjoyed one of the highest qualities of life in
the world. Overall, Australia ranks equal fourth with the highest life
expectancy at birth (79.0 years) suggesting Australians are among the
healthiest people in the world. ⁽²⁾

However there exists within this wealthy nation another nation whose
people are among the poorest and most materially deprived in the world.
During 1999 - 2001 the Australian Bureau of Statistics estimated the life
expectancy of Aboriginal and Torres Strait Islander newborn males to be
56.3 years and females, 62.8 years ⁽³⁾.
For females, this figure is lower than in India (63 years) and about the
same as in sub-Saharan Africa with AIDS factored out (62 years) ⁽⁴⁾.
For males, this is lower than that in Myanmar, Papua New Guinea and Cambodia,
where the life expectancy is 57 years ⁽⁵⁾.

The recognition by the High Court in 1992 of Australian Indigenous peoples'
relationship to their lands, their laws and their culture through the
concept of native title ⁽⁶⁾
has not affected this profile of poverty, deprivation and ill-health.
Much of the time and resources of Indigenous people seeking their native
title rights since the Mabo decision has been spent preparing claims
to meet the legal tests necessary to prove it exists. The decisions of
the High Court in the Yorta Yorta case ⁽⁷⁾
and the Miriuwung Gajerrong case ⁽⁸⁾
illustrate how difficult it is to prove native title, and once proven,
to benefit from it. In Yorta Yorta the High Court confirmed that
the applicants must show that the traditional owner community has existed
as a community continuously since the acquisition of sovereignty by the
British and that in all that time they have continued to observe the traditions
and customs of their forebears. This evidentiary difficulty is exacerbated
by the Federal Court's rules of evidence which devalue Indigenous evidence
based on oral traditions because it is "hearsay". ⁽⁹⁾
Since the Miriuwung Gajerrong decision Indigenous people have been
weighing up whether the time and effort taken to satisfy these tests are
justified given the ease with which native title can be extinguished and
the nature of the rights that remain after applying the extinguishment
tests. The discriminatory nature of these legal tests is discussed in
detail in my Native Title Report 2002.

While the evidence in native title cases is directed towards satisfying
difficult legal tests, contained within it are the stories of how non-Indigenous
Australia developed, first as a colony and then as a nation, and the effect
of this development on Indigenous people. From the stories which unfold
through the evidence it can be seen that the economic development of the
Australian nation was carried out in a way which undermined the foundations
of Indigenous culture - its social structures, its political structures,
its economic base and its relationship with the land. This history of
dispossession as it affected Indigenous peoples in the Murray-Goulburn
Valley of New South Wales and Victoria was summarised by the trial judge,
Justice Olney, in the Yorta Yorta case.

By 1850s physical resistance to settlement had ceased. The Aboriginal
population of the area had been drastically reduced in number by disease
and conflict. The white population had grown dramatically, and was to
grow even more rapidly following the discovery of gold. An 1857 census
found only 1769 Aborigines left in Victoria. In 1858 a Select Committee
was appointed to "inquire into the present condition of the Aborigines
of the colony, and the best means of alleviating their absolute wants".
Missions and reserves were established in several places to pursue such
a course but in the claim area, only ration depots were developed notably
at Echuca, Gunbower, Durham Ox, Wyuna, Toolamba, Cobram, Ulupna, and
Murchison. Local squatters were appointed as "guardians". ⁽¹⁰⁾

And later:

In 1884 proposals for dispersing "half castes" from the missions and
stations were circulated in Victoria and an Act to the same effect came
into force in 1886. The Act had profound implications for many Aboriginal
people living in Victoria. Extended families were split up, or forced
to move away from places which had been their home for many years. ⁽¹¹⁾

By the twentieth century:

Much of the reserve land had been leased to white farmers after 1921.
The irrigation system failed around 1927 and was not repaired, making
it impossible to grow sufficient vegetables or even fodder for dairy
cattle. Cash wages were abandoned for work on the mission in 1929 and
most equipment was removed to other reserves. Employment generally became
harder to find as the white work force was swelled with returned soldiers
and increased settlement, and the need for labour shrunk with increasing
mechanisation. In the 1930s, funding for the reserve was cut back and
work became harder to find. The problem was compounded by official policies
in New South Wales which provided able bodied men and their families
with no options. Aboriginal people living on reserves were not eligible
for State unemployment relief. Nor were able-bodied Aboriginal people
eligible for rations. ⁽¹²⁾

A similar story of development undermining Indigenous society and culture
unfolds in the Miriuwung Gajerrong decision. The trial judge, Justice
Lee, outlines the development of the Kimberley Region by Europeans. It
is clear from his description that the development of the region was carried
out in a way which was indifferent to the socio-economic structures and
culture of the Indigenous inhabitants of the land:

Land in the East Kimberley was not made available to settlers by the
Crown until late in the 19th century when a report on an expedition
to the region, prepared by explorer and Crown surveyor Alexander Forrest
and published in 1879, indicated that the area would be suitable for
pastoral activities. Forrest stated that the Aboriginal people were
friendly and in his view they were unlikely to be hostile to settlers,
although he noted that they would 'have to learn' that the cattle
that would come with settlers would not be available for hunting. As
Sir Paul Hasluck commented in his work 'Black Australians', Aboriginal
people in the north of Western Australia were left to 'learn'
of the effects of European settlement in their region without guidance
or protection from the Crown:

'No attempt was made in entering into this vast new region to prepare
the natives for contact, to instruct them, to give them special protection
or to ensure either their legal equality or their livelihood.

As settlement spread to remote corners of the colony the difficulty
of doing anything became an excuse for forgetting that it was ever hoped
to do something. Official intentions shrank. The local government ignored
situations that were awkward or beyond its capacity to handle and the
Colonial Office also overlooked or was unaware of any need for a positive
policy.'

The first grants of rights to depasture stock in the region were for
land undefined by survey. Pastoral rights were applied for by marking
on maps the approximate positions of the areas sought. In 1881 two speculators
acquired pastoral rights to approximately 800,000 hectares by 'marking
off' an area that was assumed to follow the Ord River, on the 'understanding'
that when the course of the Ord River was eventually mapped the pastoral
areas would be 'transferred' to match the course of the river.
Shortly thereafter, a group of pastoralists from the eastern colonies,
among them Durack, Emanuel and Kilfoyle, 'reserved' approximately
1 million hectares, including land on the Ord River, wherever the course
of that river may be shown to be by subsequent survey and mapping …

By the end of 1883 approximately 20 million hectares of the Kimberley
had been included in pastoral leases. Within six months of that date
pastoral leases covering almost a quarter of that area had been surrendered
or forfeited. Further leases were abandoned over the next two years
and by the end of 1885 the core of the Kimberley pasture industry remained.
⁽¹³⁾

While the effect of colonial development on Indigenous peoples is laid
bare in these and other native title cases, the purpose of this evidence
is to establish the basis for the final dispossession of surviving Indigenous
culture: the denial by the legal system of its recognition as a native
title right. The sad irony of native title is that where the dispossession
of Indigenous people through colonial and modern development has been
most thorough, brutal and systematic, the less likely it is that the traditions
and customs practiced today by the descendants of those affected will
be recognised and protected as native title rights. The legal tests for
the recognition and extinguishment of native title ensure this result.

Australia's development as a nation has occurred at the expense of Indigenous
people. The law of native title does not redress this injustice. This
failure reinforces a commonly held view that development and human rights
are antithetical concepts, human rights only having a role once economic
development is complete. This notion of development, while still widely
held, has been contested in the past 15 years through the notion of a
right to development.

The right to development ⁽¹⁴⁾

The right to development was recognised in 1986 with the adoption by
the United Nations General Assembly of the Declaration on the Right
to Development (DRD). ⁽¹⁵⁾
Article 1 of the DRD reflects a notion of development which goes beyond
focusing on the growth of Gross Domestic Product of the State:

The right to development is an inalienable human right by virtue of
which every human person and all peoples are entitled to participate
in, contribute to, and enjoy economic, social, cultural and political
development, in which all human rights and fundamental freedoms can
be fully realised.

This Article contains the two elements which characterise the right to
development. First, development is a human right which belongs to people,
not to States. This element is reinforced in Article 2(1) of the Declaration:

The human person is the central subject of development and should be
the active participant and beneficiary of the right to development.

Second, Article 1 makes it clear that the goal of development is the
realisation of all human rights and fundamental freedoms. Development
must be carried out in a way which respects and seeks to realise people's
human rights. Thus development is not only a human right in itself, but
is also defined by reference to its capacity as a process to realise all
other human rights.

The rights-based approach to development marks a fundamental shift from
that adopted in the 1950s and 1960s where the Gross Domestic Product (GDP)
was the principal indicator of development.

One of the effects of defining development as the realisation of rights
is to amalgamate what has been seen as two distinct types of rights: those
concerned with civil and political rights, and those concerned with economic,
social and cultural rights. Presenting the right to development as the
integration of all human rights blurs this distinction. The definition
of development in the second paragraph of the Preamble to the DRD recognises
a comprehensive approach to rights:

Development is a comprehensive economic, social, cultural and political
process, which aims at the constant improvement of the well-being of
the entire population and of all individuals on the basis of their active,
free and meaningful participation in development and in the fair distribution
of benefits resulting therefrom.

This view of development was reaffirmed in the Vienna Declaration and
Programme of Action adopted by consensus at the World Conference on Human
Rights in 1993. Article 10 of the Vienna Declaration states:

The World Conference on Human Rights reaffirms the right to development,
as established in the Declaration on the Right to Development, as a
universal and inablienable right and an integral part of fundamental
human rights.

As a resolution of the General Assembly, with only one State (the USA)
casting a vote against it, and with six abstentions, the DRD provides
a basis for international custom-building and law-making, creating expectations
that States will work towards the goals and through the processes contained
within it.

For Indigenous peoples in Australia the rights approach to development
as elaborated by the DRD provides a basis for their 'free and meaningful
participation in development and in the fair distribution of benefits
resulting therefrom'. Such an approach also has the potential to expand
the native title process beyond merely giving legal definition to the
Indigenous rights that remain after many years of unregulated development.
Instead, under this approach the native title process can also be directed
towards providing a vehicle for Indigenous development to occur within
the cultural and political boundaries established by traditional laws
and customs.

As I indicate in chapter 3 native title is more than a legal process.
It is also a political process whereby Indigenous people enter a relationship
with the State on the basis of their identity as the traditional owner
group of an area of land. In some cases native title has provided the
first opportunity since the acquisition of sovereignty for a relationship
of this type to be formed. Where the State is sincere about transforming
the economic and social conditions in which Indigenous peoples live in
Australia, native title can provide an opportunity to lay the foundations
for development within the framework of traditional laws and customs and
consistently with international human rights principles. Applying these
rights Indigenous peoples are entitled to development that is non-discriminatory
in its impact and in its distribution of benefits; involves the effective
participation of Indigenous peoples in defining its objectives and the
methods used to achieve these objectives; facilitates the enjoyment of
Indigenous peoples' cultural identity, and respects the economic, social
and political systems through which Indigenous decision-making occurs.

Non-discriminatory Development

In my Native Title Report 2002 I argue that the extinguishment
of native title by the creation of other rights and interests in the same
land is racially discriminatory. This is made clear by the High Court's
own analysis of the Racial Discrimination Act 1975 (Cth) (RDA)
and its application to the creation of non-Indigenous interests by the
Crown over Indigenous land after 1975 (the date when the RDA came into
effect) in the Miriuwung Gajerrong case. The effect of the RDA
is to either render these interests invalid or to require that compensation
be paid to the traditional owners of the land. Yet the creation of rights
and interests by the Crown over Indigenous land without any regard to
the rights of traditional owners was the way in which the colony and then
the Australian nation developed. The extinguishment principle applied
by the common law and then by the Native Title Act 1993 (Cth) (NTA)
together validate this discriminatory process by which non-Indigenous
development occurs at the expense of Indigenous development.

The Committee on the Elimination of Racial Discrimination (the CERD Committee)
has considered a State's obligation in respect of Indigenous peoples under
the Convention on the Elimination of All Forms of Racial Discrimination.
The way in which the Committee applies the principles of equality and
non-discrimination to Indigenous peoples is evident in its review of States'
reports ⁽¹⁶⁾ and
in its General Recommendation XXIII on the Rights of Indigenous Peoples
⁽¹⁷⁾. General Recommendation
XXIII provides guidelines to a non-discriminatory approach to development,
including the provision by State parties of conditions 'allowing for sustainable
economic and social development compatible with their cultural characteristics'
⁽¹⁸⁾ and requiring
restitution for the deprivation of Indigenous land providing for 'the
right to just, fair and prompt compensation [which] should as far as possible
take the form of lands and territories'. ⁽¹⁹⁾

It should be noted that General Recommendation XXIII addresses the rights
of Indigenous peoples rather than Indigenous individuals or a collective
of Indigenous people. A non-discriminatory approach to development requires
that Indigenous people, as a people, are able to derive the same benefit
from development on their land as that derived by non-Indigenous people.
⁽²⁰⁾ On this basis
the CERD Committee recommends that States recognize and protect 'the rights
of indigenous peoples to own, develop, control and use their communal
lands and territories and resources traditionally owned or otherwise inhabited
or used without their free and informed consent' ⁽²¹⁾.
Indigenous peoples like other self-determining peoples should have control
of resources on their land and enjoy equal protection of their property
interests before the law.

The construction of native title by the Australian legal system does
not lay a foundation for Indigenous development. The effect of the extinguishment
test is that, over time, native title is whittled away whenever an inconsistency
between Indigenous and non-Indigenous interests occurs. While the creation
of a mining lease extinguishes the right of Indigenous people to utilise
their resources on that land, a pastoral lease on the same land at a later
time will further erode native title by extinguishing the right of Indigenous
people to exclude others from the land. Gradually, over time, native title
is reduced to a series of usufructuary rights which are incapable of making
any significant contribution to the development of traditional owners.

The CERD Committee, considering Australia's native title legislation
under its early warning procedures ⁽²²⁾
noted that '[w]hile the original Native Title Act recognises and seeks
to protect indigenous title, provisions that extinguish or impair the
exercise of indigenous title rights and interests pervade the amended
Act' ⁽²³⁾.

Locating development within a human rights framework requires a different
approach to the legal recognition of Indigenous rights to land than that
provided by NTA: one which ensures that the benefits of development on
Indigenous land accrue to the traditional owners.

Participatory Development

The right to development is based on Indigenous peoples' free and meaningful
participation ⁽²⁴⁾
in the formulation, implementation, monitoring and evaluation of any policies
and programmes that will affect their development. It is also a right
to participate in development itself and the benefits it produces. Article
2(3) of the DRD provides:

States have the right and the duty to formulate appropriate national
development policies that aim at the constant improvement of the well-being
of the entire population and of all individuals, on the basis of their
active, free and meaningful participation in development and in the
fair distribution of the benefits resulting therefrom. [Italics
added]

The CERD Committee's General Recommendation XXIII provides guidelines
to a participatory approach to development, including the provision by
State parties of conditions ensuring 'equal rights in respect of effective
participation in public life and that no decision directly relating to
their rights and interests are taken without their informed consent' ⁽²⁵⁾.
Through the mechanism of consent, Indigenous people are brought into the
decision-making processes which determine the use and development of their
land. As participants in the policy process they can ensure that they
benefit from the developments that occur. Article 30 of the UN Draft
Declaration on the Rights of Indigenous Peoples articulates this approach:

Indigenous peoples have the right to determine and develop priorities
and strategies for the development or use of their lands, territories
and other resources, including the right to require that States obtain
their free and informed consent prior to the approval of any project
affecting their lands, territories and other resources …

The Inter-American Court of Human Rights also requires that States obtain
the consent of Indigenous people before granting approval to companies
seeking access to and exploitation of Indigenous land. In the Awas
Tingni decision the Court held:

The State of Nicaragua is actively responsible for violations of the
right to property, embodied in Article 21 of the [American Convention
on Human Rights], by granting a concession to company SOLCARSA to carry
out road construction work and logging exploitation of the Awas Tingni
lands, without the consent of the Awas Tingni Community. ⁽²⁶⁾

Native title, as it is constructed within the Australian legal system,
is not consistent with the principles of participatory development. The
CERD Committee's decision on Australia noted that the formulation of the
amendments to the NTA were taken without Indigenous people's informed
consent and failed to 'recognise and protect the rights of indigenous
peoples to own, develop, control and use their common lands territories
and resources', ⁽²⁷⁾
as emphasised in General Recommendation XXIII.

One set of amendments to the NTA which undermine a participatory approach
to development through native title are those with respect to the right
to negotiate. These amendments reduce the extent to which Indigenous people
can effectively participate in mining projects on their land. Under the
original NTA the full right to negotiate applied when mining was proposed
on any native title land. Through the right to negotiate, native title
parties were active participants in negotiating conditions such as employment
on projects, contracts for ancillary work, local investment, social development
programs, equity participation, infrastructure development, as well as
issues specific to the native title rights being claimed. Under the 1998
amendments to the NTA, the right to negotiate is reduced where native
title is coexistent with other titles, such as a pastoral lease. In these
cases, instead of a right to negotiate, native title parties are given
a right to be consulted on ways to minimise the impact of the development
on native title rights and interests. ⁽²⁸⁾
Accordingly, consultations are limited to ensuring that Indigenous people
can continue to exercise their remnant rights throughout the development
project rather than participating in the benefits generated by the developments
on their traditional land.

While the NTA fails to guarantee Indigenous peoples' participation in
developments on their land, it is argued in this report and discussed
in Chapter 3 that there is scope within State and Territory native title
policies for a broader approach. Where governments have announced that
they wish to advance the economic and social development of Indigenous
people, all developments that occur on traditional land should be seen
as the basis for Indigenous participation and benefit sharing. Native
title agreements can be utilised to define participatory rights for traditional
owner groups, thus counteracting the limitations of the NTA and the native
title determinations it produces. Such agreements could also provide for
Indigenous participation in developing the policies and regimes to regulate
developments that occur on traditional land. This would ensure Indigenous
control at the outset.

Culture and Development

A participative approach to development ensures that developments that
do take place on Indigenous land are not harmful to the cultural identity
of the traditional owners of that land. Article 27 of the International
Covenant on Civil and Political Rights (ICCPR) provides a basis for
the protection of Indigenous peoples' cultural identity:

Members in ethnic, religious or linguistic minorities shall not be
denied the right, in community with the members of their group, to enjoy
their own culture, to profess and practice their own religion, or to
use their own language.

There has been significant resistance from Indigenous groups to their
rights being equated with the rights of cultural minorities within a particular
State. Indigenous people maintain that as the First Peoples of a territory
with a specified history and relationship to that territory including
one of forced colonisation, they have distinct rights in the context of
cultural, social, economic and political protection.

Despite this concern however the Human Rights Committee has interpreted
Article 27 in a way which protects the cultural rights of Indigenous peoples
when threatened by hostile developments. Several cases alleging breaches
of Article 27 as a result of the impact of development on the cultural
identity of the group have been considered by the Human Rights Committee
under the First Optional Protocol to the International Covenant on Civil
and Political Rights. As a result the Committee has established the following
principles in relation to Article 27:

• For it to be valid and not breach Article 27, a restriction upon the
  right of an individual member of a minority must be shown to have a
  reasonable and objective justification and to be necessary for the continued
  viability and welfare of the minority as a whole. ⁽²⁹⁾
• The right of a member of a minority group to enjoy their own culture
  must be considered within the relevant socio-economic context. The economic
  activities of the group may be protected by Article 27 where they are
  an essential element of the culture of the group. ⁽³⁰⁾
• In considering whether the economic activities of the minority group
  are being interfered with in such a way as to threaten the way of life
  and culture of the community, the Committee will take into account historical
  inequities in treatment. ⁽³¹⁾
• The types of economic activities of the minority group that are relevant
  are not limited to activities that support a traditional means of livelihood.
  They may be adapted to modern practices. ⁽³²⁾
• A countervailing consideration will be the role of the State in encouraging
  development and economic activity. ⁽³³⁾
  In doing so, the State is under an obligation to ensure that such activity
  has, at most, only a 'limited impact on the way of life of persons belonging
  to a minority.' ⁽³⁴⁾
  Such a 'limited impact' would not necessarily amount to a 'denial' of
  the rights under Article 27.
• The Committee will consider whether the State has weighed up the interests
  of the Indigenous persons with the benefits of the proposed economic
  activity. Large scale activities, particularly those involving the exploitation
  of natural resources, could constitute a violation of Article 27. ⁽³⁵⁾
• In assessing activities in the light of Article 27, State parties
  must take into account the cumulative impact of past and current activities
  on the minority group in question. Whereas 'different activities in
  themselves may not constitute a violation of this Article, such activities,
  taken together, may erode the rights of (a group) to enjoy their own
  culture.' ⁽³⁶⁾
• The Committee will consider whether the State has undertaken measures
  to ensure the 'effective participation' of members of minority communities
  in decisions that affect them. ⁽³⁷⁾

This overview of the Committee's response to complaints by Indigenous
people under Article 27 ICCPR makes it clear that the Committee considers
Indigenous people have a unique and profound relationship to their land
which extends beyond economic interests to cultural and spiritual identity.
Consequently the impact of developments on Indigenous people's land is
also an impact on this deeper relationship.

The Inter-American Court of Human Rights has recognized this relationship
in the case of Awas Tingi ⁽³⁸⁾.
The Court found that the right of everyone to use and enjoy their property
extended to Indigenous communal ownership of land 'through an evolutionary
interpretation of international instruments for the protection of human
rights'. The Court continued:

the close ties of indigenous people with the land must be recognised
and understood as the fundamental basis of their cultures, their spiritual
life, their integrity and their economic survival. For indigenous communities,
relations to the land are not merely a matter of possession and production
but a material and spiritual element which they must fully enjoy, even
to preserve their cultural legacy and transmit it to future generations.
⁽³⁹⁾

In Australia native title is derived from and exercised in accordance
with the traditional laws and customs of the claimant groups. The widespread
extinguishment of native title supported by the NTA and the common law
constitutes a clear and pervasive denial of Indigenous peoples' cultural
rights as understood in international law.

This native title legal framework fails to understand the opportunity
that native title can present to governments endeavoring to break the
cycle of poverty that pervades Indigenous communities. Understood as an
aspect of cultural identity, native title can provide the framework for
Indigenous development that integrates economic and social development
into the cultural values of the group. This is the type of development
envisaged in the preamble to the DRD as 'a comprehensive economic, social,
cultural and political process'.

Development that realises economic, social
and cultural rights

The right to development is specifically directed towards the goal of
realizing the economic, social, and cultural rights of people. The preamble,
paragraph 4, to the DRD specifically recalls the provisions of the International
Covenant on Economic, Social and Cultural Rights (ICESCR). Article
1(1) DRD recognizes that the goal of development is the realization of
all human rights and fundamental freedoms. In addition, Article 8(1) DRD
provides that:

States should undertake, at the national level, all necessary measures
for the realization of the right to development and shall ensure, inter
alia, equality of opportunity for all in their access to basic resources,
education, health services, food, housing, employment and the fair distribution
of income.

The ICESCR complements the DRD by elaborating upon the economic, social
and cultural rights that are the objectives of the development process.
A fundamental right under ICESCR is the right to an adequate standard
of living ⁽⁴⁰⁾ which
in turn requires, as a minimum, that all people enjoy subsistence rights,
i.e. adequate food, nutrition, clothing, housing and the necessary conditions
of care. Linked to an adequate standard of living are economic rights,
including the right to own property ⁽⁴⁰⁾,
the right to work ⁽⁴²⁾
and the right to social security ⁽⁴³⁾.

Under Article 15 of ICESCR, cultural rights include the right to take
part in cultural life, the right to enjoy and benefit from scientific
progress, and the right to protection of the moral, material and artistic
interests from any scientific, literary or artistic production. Closely
linked to these principles is the right to education, which is also a
key feature of economic and social rights. ⁽⁴⁴⁾
Education is an important tool for achieving and advancing economic and
social development.

The DRD is not just about defining the right to development. Its purpose
includes defining the obligations that a State has to the holders of the
right to development. States have obligations in respect of both the process
and the achievement of development goals. Articles 2(3), 3, 4, 5, 6, 7,
8, 10 of the DRD direct States in the goals they must strive to achieve
and the way they should carry out their obligations. These can be described
as obligations of conduct and result ⁽⁴⁵⁾
and include the effective allocation and utilization of resources; representative
participation, including that of women, minorities and Indigenous peoples;
transparency of decision-making process; the adoption of sustainable policies
and programmes that reflect the prior representative consultation; and
the establishment of an enabling legal, political, economic and social
environment.

These obligations entail both immediate and progressive elements to ensure
the realisation of all human rights through development. Article 2 of
ICESCR provides guidelines to States on how their obligations under that
Covenant may be carried out. Given the close relationship between ICESCR
and DRD these guidelines can also assist States in carrying out their
obligations under DRD. Article 2 provides:

1. Each State Party to the present Covenant undertakes to take steps,
   individually and through international assistance and co-operation,
   especially economic and technical to the maximum of its available resources,
   with a view to achieving progressively the full realization of the rights
   recognized in the present Covenant by all appropriate means, including
   particularly the adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee
   that the rights enunciated in the present Covenant will be exercised
   without discrimination of any kind as to race, colour, sex, language,
   religion, political or other opinion, national or social origin, property,
   birth or other status.

In sum, Article 2(1) requires that a State Party take steps:

• to the maximum of its available resources
• to progressively realize economic, social and cultural rights
• by all appropriate means, including legislation.

In relation to the first element, the Observation of the Committee on
Economic, Social and Cultural Rights in relation to Australia's report
in 2000 provides an instructive approach. ⁽⁴⁶⁾
The Committee notes that while Australia had allocated $2.3 billion to
Indigenous programmes, it was deeply concerned at the ongoing comparative
disadvantage suffered by Indigenous Australians. This suggests that the
Committee sees that a State's undertaking to take steps to the maximum
of its resources can be measured against what the State is willing to
expend to meet its obligations under the Covenant.

I comment in chapter 3 on the paucity of funds available to Native Title
Representative Bodies to carry out their duties and functions under the
NTA. In addition, Prescribed Bodies Corporate have no funding source at
all from the Commonwealth or State governments and are thus unable to
provide a governing institution for the traditional owners' ongoing development.
The meagre funding of Indigenous interests within the native title system
puts the Commonwealth and State governments in breach of their obligations
under ICESCR and the right to development under the DRD.

The second element of Article 2(1) (progressive realization of rights)
recognises that a State's obligations under ICESCR are unlikely to be
achieved within a short period of time. Instead, States should provide
a long term commitment to achieving the goals of ICESCR. This includes
monitoring the progress of the steps taken towards these goals.

I discuss below capacity development as a framework for the realization
of Indigenous peoples' rights to development. This approach requires long
term, progressive strategies that enable Indigenous communities to acquire
the capacity, through learning and adaptation, to realize their development
goals.

The third element of Article 2(1) highlights the importance of appropriate
measures, including passing of beneficial legislation, for the realization
of the economic, social and cultural rights enshrined in ICESCR. The appropriateness
of a measure of course depends on who the specific right-holders are.
Indigenous peoples are recognised in international law as having certain
specific characteristics and rights. Therefore the method of meeting obligations
to them will be different. Policies directed to fulfilling a State's obligations
under ICESCR should match the cultural values of the group for whom they
are designed. Achieving this match relies on the effective participation
of Indigenous people in policy design and implementation.

Article 2 ICESCR recognises that appropriate measures may also include
legislation. The NTA provides legislative recognition of the rights and
interests of Indigenous Australians in relation to their traditional land.
The Committee on Economic, Social and Cultural Rights noted with regret
that:

The amendments of the 1993 Native Title Act have affected the reconciliation
process between the State party and the indigenous populations who view
these amendments as regressive. ⁽⁴⁷⁾

The integration of the rights under ICESCR within the DRD not only directs
the right to development towards specific economic, social and cultural
rights, it also provides instruction on a State's obligation to realize
these rights. Applying this approach to the native title process would
have the effect of directing legislative approaches to native title to
the recognition of Indigenous people's economic, social and cultural rights.

The most recent statistical profile of the material circumstances of
Indigenous peoples' lives in Australia ⁽⁴⁸⁾
indicates that addressing their disadvantage through policies that take
no account of the unique social, political and cultural identity of Indigenous
people has not proven successful. Native title would provide an effective
mechanism for States to meet their obligations under ICESCR and the DRD
in a way that is appropriate to this identity. Rather than the government
imposing measures to address disadvantage within Indigenous communities,
native title negotiations can provide a forum for Indigenous participation
in the design of these measures, ensuring they are appropriate to the
community's circumstances.

Self-Determined Development

The DRD not only expressly recognises the right of peoples to self-determination
and full sovereignty over their resources; it also recognises the relationship
between these rights and the right to development. Article 1(2) provides:

The human right to development also implies the full realization of
the right of peoples to self-determination, which includes, subject
to the relevant provisions of both International Covenants on Human
Rights, the exercise of their inalienable right to full sovereignty
over all their natural wealth and resources.

The effect of integrating the right to development with the right to
self-determination has been described as follows:

Self-determination within the right to development addresses a right
to 'self-determined development' ⁽⁴⁹⁾
It is the freedom to pursue economic, social, cultural and political
development, as the Covenants make clear. It is a right that facilitates
the enjoyment of cultural identities and their ability to determine
their own economic, social and political systems through democratic
institutions and actions. It is about sustainable and equitable use
of resources in a manner that fully and completely integrates the range
of rights provided to Indigenous peoples with regard to their land,
territories and resources, their values, traditions and economic, religious
and spiritual relationship to their land, and respects the rights of
minorities to the traditional lands and territories they inhabit. Self-determination
within the right to development is linked to the right to be recognised
as minority or indigenous communities and to meaningfully participate
as a group and thus influence any decisions that affect them or their
regions in which they live. ⁽⁵⁰⁾

This indicates an approach to development that not only puts people as
its main subject but also sees them as controlling its direction. For
Indigenous people, a pre-requisite to their taking control of their own
development is firstly that the State acknowledges that there exists within
its borders a distinct group who legitimately have claims to recognition
as a people; and secondly that the State agrees to enter a relationship
with that group on the basis of equality and mutual respect, in order
to negotiate how that group might engage and participate in society.

One obstacle to this course for Indigenous people is the contention by
certain States ⁽⁵¹⁾
that Indigenous people are not entitled to the right of self-determination.
This contention was dealt with in detail in my Social Justice Report
2002. I point out there that the United Nations Human Rights Committee
and the United Nations Committee on Economic, Social and Cultural Rights
(i.e., the two committees that operate under and interpret the standards
in the two international covenants, the ICCPR and the ICESCR) clearly
identify self-determination as a right held by Indigenous peoples, including
those in Australia. This can be drawn from the following documents and
the jurisprudence of the committees.

Human Rights Committee (HRC)

• Concluding observations on Australia, UN Doc CCPR/CO/69/AUS,
  which states at para 10 that 'The State party should take the necessary
  steps in order to secure for the Indigenous inhabitants a stronger
  role in decision making over their traditional lands and natural resources
  (article 1, para 2)'. The List of Issues of the Committee (UN Doc:
  CCPR/C/69/L/AUS, 25/04/2000, Issue 4) had asked 'What is the policy
  of Australia in relation to the applicability to the Indigenous peoples
  in Australia of the right of self-determination of all peoples?'
• Concluding observations on Canada, UN Doc: CCPR/C/79/Add.105,
  7/4/99, paras 7,8
• Concluding Observations on Norway, UN Doc: CCPR/C/79/Add.112,
  05/11/99, paras 10 and 17, which note (at para 17) that 'the Committee
  expects Norway to report on the Sami people's right to self-determination
  under Article 1 of the Covenant, including paragraph 2 of that article'
• Concluding Observations on Mexico, UN Doc:CCPR/C/79/Add.123,
  para. 14
• Concluding observations on Sweden, UN Doc: CCPR/CO/74/SWE,
  24/4/2002, para 15
• Lubicon Lake Band v Canada (1990) Un Doc: CCPR/C/38/D/167/1984
• Marshall (Mikmaq Tribal Society) (1991) UN Doc: CCPR/C/43/D/205/1986

Committee on Economic, Social and Cultural Rights (CESCR)

• List of Issues: Australia, UN Doc: E/C.12/Q/AUSTRAL/1, 23/05/2000,
  Issue 3: 'What are the issues relating to the rights of indigenous Australians
  to self-determination, and how have these issues impeded the full realization
  of their economic, social and cultural rights?'
• Concluding observations on Canada, UN Doc: E/C.12/1/Add.31,
  10/12/98 (see also CESCR, List of issues: Canada, UN Doc: E/C.12/Q/CAN/1,
  10 June 1998, Issue 23);
• Concluding observations on Colombia, UN Doc: E/C.12/1/Add.74,
  30/11/2001, paras 12, 33.

These documents make it clear that within the jurisprudence of international
law Indigenous peoples are considered to be entitled to the right to self-determination.
Under Article 1(2) of the DRD, Indigenous peoples' right to development
entitles them to control the direction that their development takes.

In this position of control and using their own decision-making structures,
Indigenous people can participate in the design and implementation of
development policies to ensure that the form of development proposed on
their land meets their own objectives and is appropriate to their cultural
values. The International Court of Justice notes in its Advisory Opinion
on Western Sahara, the essential requirement for self-determination is
that the outcome corresponds to the free and voluntary choice of the people
concerned. ⁽⁵²⁾

It follows that a further essential feature of self-determined development
is that it does not have a prescribed or pre-determined outcome.
Each community must develop its own agenda for development. There are
as many outcomes possible as there are communities, ways of governing,
exercising control and administering decisions.

Similarly, self-determined development is ongoing. It is not a
singular event or something that is defined as at a particular moment
in history:

Self-determination should not be viewed as a one time choice, but as
an ongoing process which ensures the continuance of a people's participation
in decision making and control over its own destiny … This view makes
it possible for incremental changes to be implemented rather than forcing
parties to agree on definitive changes which can be too radical for
some and insufficient for others. Rather, it should be seen as a process
by which parties adjust and re-adjust their relationship, ideally for
mutual benefit. ⁽⁵³⁾

Below I argue that it is not sufficient that Indigenous communities have
control of the development process. They must develop the capacity to
exercise that control in order to achieve their development goals. The
object of development is the expansion of the capabilities of people to
realise that which they value. Capacity development can take a long time.
It also requires a long term relationship between government and Indigenous
communities during which communities can learn from their experiences
and build on their changing abilities.

A further component of self-determined development for Indigenous people
is the recognition of their sovereignty over land and resources. Erica-Irene
Daes's final report on Indigenous Peoples and their Relationship to
Land, ⁽⁵⁴⁾ contains
a list of objectives that 'may be useful for assessing the value and appropriateness
of proposed principles and other measures or endeavours relating to the
rights of indigenous peoples to lands and resources'. ⁽⁵⁵⁾
The following of these objectives reflect the importance of Indigenous
peoples' right to land and resources as a component of their right to
development:

1. To ensure that indigenous peoples have land and resources sufficient
   for their survival, development and well being as distinct peoples and
   cultures, including, so far as possible, their traditional cultural
   and sacred sites;
2. To correct in a just manner the wrongful taking of land and resources
   from indigenous peoples;
3. To resolve and avoid uncertainty of land and resource ownership, and
   to avoid conflict, instability and violence in relation to indigenous
   rights to lands and resources;
4. To assure the rule of law, non discrimination and equality before
   the law in regard to indigenous peoples and their rights to lands and
   resources, while recognizing the right of indigenous peoples to exist
   as distinct cultures with certain unique rights;
5. To assure that all lands and resources are utilized in a sustainable
   and ecologically sound manner. ⁽⁵⁶⁾

The report gives these a more concrete form, in its 'Principles for State
and international actions regarding indigenous land, territories and resources'
⁽⁵⁷⁾.

The merit of a self-determination approach to development as outlined
above is not only that it is consistent with human rights principles.
According to studies conducted by the John F Kennedy School of Government
at Harvard University, ⁽⁵⁸⁾
this approach is essential to breaking the cycle of poverty in Indigenous
communities and laying the foundation for economic and social development.

Sovereignty, nation-building, and economic development go hand in hand.
Without sovereignty and nation-building economic development is likely
to remain a frustratingly elusive dream …. ⁽⁵⁹⁾

A 'nation-building' approach to the problem of Indigenous poverty and
unemployment builds an enabling environment 'that encourages investors
to invest, that helps businesses last, and that allows investments to
flourish' ⁽⁶⁰⁾.
The building blocks for this environment are the communities' own governing
structures and institutions:

Putting in place effective institutions of self-governance is a critical
piece of the development puzzle, but it is not the only one. Institutions
alone will not produce development success. Sound institutions have
to be able to move into action. In our research and in our work with
Indian nations, we think about development as having four central pieces
or building blocks: sovereignty, effective institutions, strategic direction,
and decisions/action.

Sovereignty is the starting point; without it, successful development
is unlikely to happen in Indian Country. But as we have argued above,
sovereignty has to be backed up with effective governing institutions.
These provide the foundation on which development rests. Development
itself, however, still needs focus. For most Indian nations, not just
any kind of development will do. Most nations have priorities: aspects
of their society or situation that they wish to change, features that
they wish to preserve or protect, directions they see as compatible
with their views of the world, directions they wish to avoid. The crucial
issues for societies to decide as they put together their agenda are
these:

• What kind of society are we trying to build?
• What do we hope to change in our society?
• What do we hope to preserve or protect? What are we willing to give
  up?
• What are our development priorities (e.g. sovereignty, health, employment,
  income, skill development, etc.)?
• What are our development concerns (e.g. cultural impacts, environmental
  impacts, changing demographics, out-migration, etc.)?
• What assets do we have to work with?
• What constraints do we face?

The answer to these questions form the basis of a development strategy.
They provide criteria against which development options can be evaluated
and development decisions can be made. ⁽⁶¹⁾

Native title presented an opportunity in Australia to put in place the
building blocks of Indigenous development by recognising the institutions
that reflect the sovereignty of Indigenous people. It was an opportunity
to give recognition to the distinct political identity of Indigenous people
and the cultural, economic and political values that characterise this
identity. However, the legal construction of native title in the High
Court's decisions in the Miriuwung Gajerrong and the Yorta Yorta
cases and through the NTA ensures that native title cannot be a vehicle
for Indigenous sovereignty.

The recognition of native title in Australia is premised on the supreme
and exclusive power of the State. While this premise underlies the High
Court's decisions in both the Mabo ⁽⁶²⁾
and the Miriuwung Gajerrong cases, it is most clearly stated in
the Yorta Yorta decision:

what the assertion of sovereignty by the British Crown necessarily
entailed was that there could thereafter be no parallel law-making system
in the territory over which it asserted sovereignty. ⁽⁶³⁾

In the Miriuwung Gajerrong decision the Court attributes the 'inherent
fragility' of native title to the imposition of the new sovereign order:

An important reason to conclude that, before the NTA, native title
was inherently fragile is to be found in this core concept of a right
to be asked permission and to speak for country. The assertion of sovereignty
marked the imposition of a new source of authority over the land. Upon
that authority being exercised, by the creation or assertion of rights
to control access to land, the right to be asked for permission to use
or have access to the land was inevitably confined, if not excluded.
But because native title is more that the right to be asked for permission
to use or have access (important though that right undoubtedly is) there
are other rights and interests which must be considered, including rights
and interests in the use of the land. ⁽⁶⁴⁾

It can be seen in the Miriuwung Gajerrong decision that the construction
of native title at common law as an inherently fragile and inferior interest
in land, originates from an assumption that the nature of the power asserted
by the colonizing state is singular, total and all-encompassing. The Yorta
Yorta decision illustrates the consequences of this for the recognition
of native title:

Upon the Crown acquiring sovereignty, the normative or law-making system
which then existed [Indigenous laws and customs] could not thereafter
validly create new rights, duties or interests. Rights or interests
in land created after sovereignty and which owed their origin and continued
existence only to a normative system other than that of the new
sovereign power, would not and will not be given effect by the legal
order of the new sovereign. ⁽⁶⁵⁾

This is a very limited view of Indigenous rights and not one accepted
in international law. In relation to Australia's obligations under Article
1 of the International Covenant on Civil and Political Rights,
the Human Rights Committee recommended in its Concluding Observations
on Australia that:

The State party should take the necessary steps in order to secure
for the indigenous inhabitants a stronger role in decision-making over
their traditional lands and natural resources. ⁽⁶⁶⁾

Nor is the High Court's view on Indigenous rights accepted in other common
law jurisdictions. In Chapter 4 I contrast the position adopted by the
High Court in Australia in relation to Indigenous sovereignty with that
taken by the Courts in Canada and the USA. What is relevant here is that
the construction of native title in Australia is not only inconsistent
with the human right to development, it also fails to provide a useful
tool for Indigenous communities and government to change the circumstances
of Indigenous people's lives in a sustainable and empowering way.

However the native title process is not just about the way in which the
NTA and the common law give recognition and protection to legal rights
and interests. While this element presently dominates the native title
process, there is another component that has the capacity to redirect
native title towards the economic and social development of Indigenous
people in a way which is consistent with their right to development.

This potential arises from the fact that native title requires governments
to engage with Indigenous people as the traditional owners of the land.
This is a special type of engagement that carries with it an acknowledgement
of Indigenous peoples' distinct identity based on their relationship to
the land. It is my hope that this engagement will mature through the native
title process to one that acknowledges that native title holders are a
distinct group who legitimately have claims to be recognised as a people.
From this it is but a small step to an engagement between government and
native title holders directed to the development objectives of Indigenous
peoples and to a dialogue about how these might be achieved within the
development of the Australian nation.

Sustainable Development

The concept of sustainable development has been evolving since at least
the early 1970s. Starting in 1972 the key principles have been set out
in a number of declarations and reports, including The Declaration
of the United Nations Conference on the Human Environment, 1972; UN
General Assembly World Charter for Nature, 1982; World Commission
on Environment and Development's report, Our Common Future, 1987;
Rio Declaration on Environment and Development, and Agenda 21,
1992; The Johannesburg Declaration on Sustainable Development, 2002.

These declarations and reports have produced strategies that have become
the basis for development practices worldwide. The basic tenets of sustainable
development are the integration of environmental protection with economic
and social development, futurity, conservation of resources, equity, quality
of life and participation. ⁽⁶⁷⁾
These principles lay a basis for development that weaves environmental
considerations, economic outcomes and social justice into an holistic
development model.

The discourse of sustainability provides Indigenous people with a useful
set of principles and processes which would enable greater participation
in economic development based on recognition of their distinct identity
and their unique relationship to land and resources. Increasing attention
is being given to the role of sustainable development in programs designed
to address economic development within Indigenous communities. Linking
economic development outcomes to the social, ecological, political and
cultural needs of Indigenous communities gives rise to new ideas for sustainable
economic, social and cultural outcomes.

The 1987 World Commission's report, Our Common Future, examined
the effects of development on Indigenous peoples and concluded that they
are specifically and profoundly at risk from imposed economic exploitation.
This is because they live in isolated, often resource-rich environments,
and that the sustenance, socio-legal structure, religious beliefs and
place of residence of Indigenous communities are founded on the natural
environment in which these communities live.

The 1987 Report also acknowledged the important influence of Indigenous
peoples' knowledge and their profound relationship to land on the core
idea of sustainability; that the land and the environment is an intrinsic
part of humanity's economic, social and cultural existence. Such observations
led the Commission to conclude that the traditional rights of Indigenous
groups must be respected in the context of sustainable development. ⁽⁶⁸⁾
This approach to Indigenous rights was reflected in the Rio Declaration,
which states:

Indigenous people and their communities and other local communities
have a vital role in environmental management and development because
of their knowledge and traditional practices. States should recognise
and duly support their identity, culture and interests and enable their
effective participation in the achievement of sustainable development.
⁽⁶⁹⁾

More specifically, Agenda 21 states that 'Indigenous people and
their communities shall enjoy the full measure of human rights and fundamental
freedoms without hindrance or discrimination'. ⁽⁷⁰⁾
Agenda 21 also promotes the effective participation of Indigenous
groups in land management practices on their traditional country and in
national policy approaches to land and resource management.

The vital role of Indigenous peoples in sustainable development was reaffirmed
in the World Summit on Sustainable Development held in Johannesburg in
2002. The Indigenous Peoples' Plan of Implementation on Sustainable
Development, ⁽⁷¹⁾
drafted by Indigenous Peoples attending the World Summit, asserted a number
of important principles underlying the basis of Indigenous peoples' participation
in the sustainability dialogue. These included:

• custodianship over traditional territories (to own, control and manage
  our ancestral lands and territories, waters and other resources)
• obligations of inter-generational transfer of knowledge, resources
  and territories
• full and effective participation in all developments affecting Indigenous
  peoples
• free and prior informed consent
• protection of traditional knowledge and Indigenous intellectual property
• equitable sharing of benefits arising from "agreed" development

The Indigenous Peoples' Plan of Implementation on Sustainable Development
together with the Kimberley Declaration ⁽⁷²⁾
formed the basis of a Partnership formed at the World Summit called the
Partnership on Indigenous Rights and Sustainable Development. The Partnership
is a common platform for sustained dialogue between Indigenous peoples'
organisations, governments and multilateral agencies. It aims to promote
knowledge on Indigenous Peoples' rights and priorities in development
agencies and national governments, exchange experiences of good practice,
and influence policy processes and decision making regarding sustainable
development and human rights. Significantly the notion of capacity building
in this context applies not only to Indigenous organisations but also
to the capacity of government and other agencies to enter into a dialogue
on sustainability with Indigenous People.

A guiding principle of the partnership is that the dialogue should be
based on the principles of:

• recognition of Indigenous peoples rights to land and self determination,
• mutual respect and recognition,
• honesty and transparency,
• joint decision making and monitoring
• mutual agenda setting, and,
• respect and recognition of indigenous cultures, language and spiritual
  beliefs. ⁽⁷³⁾

The principles and concepts shaping the sustainability dialogue are not
new to Indigenous people. In fact they are informed by the same concepts
underlying Indigenous peoples' right to self-determination: a recognition
of their political status as a people and a concomitant right to freely
dispose of their natural wealth and resources and freely pursue their
economic, social and cultural development.

The critical difference is not the concepts which make up the discourse
on sustainability, but its location in both the public and private sphere
of economic development. Sustainability not only seeks to provide an ethical
underpinning to the relationship between the citizen and the State. It
is equally applicable to the relationship between a developer and those
affected by, or participating in, the development.

Some multinational companies, eager to gain access to resources and maintain
conditions of stability for their long term projects, have shown a willingness
to enter the sustainability dialogue and in some cases change their practices
to match their stated positions. The Report of the Mining Minerals and
Sustainable Development Project, (MMSD Project), Breaking New Ground
⁽⁷⁴⁾ presents an
analysis of a large industry group utilising the dialogue on sustainable
development to provide a new framework for mining developments. The recognition
of principles such as prior and informed consent in relation to land use
decisions indicates a progressive approach to development.

Native title provides a limited framework for traditional owner groups
to enter negotiations with companies seeking access to their land and
resources. Rather than utilising the native title process to integrate
economic development with the values that make up Indigenous identity,
native title has stultified this holistic approach.

The construction of native title as a bundle of rights and interests,
confirmed in the Miriuwung Gajerrong decision, reflects the failure
of the common law and the Native Title Act to recognise Indigenous
people as a people with a system of laws based on a profound relationship
to land. Native title constructed as a bundle of separate and unrelated
rights with no uniting foundation engenders a fragmentation of economic,
social and cultural values rather than their integration.

Despite the invasive legal structures which keep Indigenous identity
and economic development apart, it is generally agreed that agreement
making and negotiation processes within the native title system are capable
of generating economic benefits for Indigenous people. The challenge is
to maximise the capacity of native title to generate wealth through the
recognition of a distinct Indigenous identity.

A sustainable development framework for native title
negotiations

It is clear from the discussion above that the construction of native
title in the NTA does not provide a foundation for Indigenous people to
realise their right to sustainable development. However it is also clear
that the legal recognition of Indigenous peoples' relationship to their
traditional lands through native title is a necessary first step in a
rights-based approach to development. It reflects the importance of land
to the identity of Indigenous people. It also provides a foundation to
Indigenous people's own development in which their economic, environmental,
social and cultural values are seen as interrelated through the traditional
laws and customs from which they originate.

The aim of this section is to move beyond this first step of the legal
recognition of native title in a direction different to that taken in
the NTA, by asking 'What would a government and a native title claimant
group discuss if the agreed aim of the native title process was the realisation
of the group's right to sustainable development?'. How would native title
negotiations and agreement-making be structured so as to achieve this
agreed goal? These questions can be answered by addressing the following
principles.

Sustainable Development Relies on an Effective
Process

What emerges from the principles of both the DRD and sustainable development
is that development is a process. In the words of Dr Manley Begay, co-director
of the Harvard Project on American Indian Economic Development:

Sustained and systemic economic development … does not consist or arise
from building a plant or funding a single project. Economic development
is a process, not a program ⁽⁷⁵⁾.

This is a critical point in relation to the negotiation of native title
agreements. It is not enough that agreements contain good economic, social
and cultural outcomes in exchange for the settlement of the native title
claim. The process of reaching these outcomes is just as important ⁽⁷⁶⁾.
Thus, at the outset the parties to a native title negotiation must discuss
the process most conducive to the claimant group's economic and social
development and their respective roles in this process.

Discussions focused on the process of development might include
the issue of time frames and how long it might take the traditional owner
group to identify its objectives and develop capacity to engage effectively
with the development process. Resourcing the process of development would
also be an issue for discussion in which non-financial resources, including
knowledge and skills necessary to assist traditional owners and Native
Title Representative Bodies (NTRBs) identify and achieve the goals could
be included.

Sustainable Development Requires Capacity
Development

Sustainable development declarations have long identified the need for
capacity building to achieve sustainable development goals. ⁽⁷⁷⁾
Principle 9 of the Rio Declaration states:

States should cooperate to strengthen endogenous capacity-building
for sustainable development …

Sustainable development is a locally driven process that occurs within
a system of interrelated levels and understandings, including the local,
regional, state, national and international levels. Accordingly, the focus
of a sustainable development approach is on those who are seeking to achieve
it. For Indigenous communities this approach sees them as agents of their
own development. This approach is consistent with that outlined in the
Aboriginal and Torres Strait Islander Commission's (ATSIC's) Annual Report
for 2002-03 where the Acting Chairman describes the challenge facing Indigenous
communities and ATSIC as follows:

We want Indigenous people and communities to drive change and shape
their own futures. But that means we have got to get two things right:

• The capacity of community members and the community as a whole to
  make good policy and to campaign and negotiate for the outcomes they
  want; and,
• The good governance and self-management of Aboriginal and Torres
  Strait Islander people at national, regional and local levels.

'Capacity building' and 'good governance' are buzz words around at
the moment. But the issues that they cover are fundamental. Basically,
they mean building the skills of all Indigenous people to improve ourselves,
to shape our own lives, to run our own affairs, and to take our rightful
place as a unique part of Australian society. ⁽⁷⁸⁾

In native title negotiations this approach requires that traditional
owners play a central role in their own development and that the pace
and agenda of a capacity development process is determined by the abilities
and objectives of the traditional owner group.

Capacity development directed to the sustainable development of Indigenous
communities has five main elements:

• It must be driven by a local agenda
• It must build on the existing capacities of the group
• It must allow ongoing learning and adaptation within the group
• It requires long term investments
• It requires that activities be integrated at various levels to address
  complex problems. ⁽⁷⁹⁾

A locally driven agenda ⁽⁸⁰⁾

This principle is fundamental to capacity development. The purpose of
a locally driven agenda is to empower communities and groups who aspire
to achieve sustainable development to determine the process themselves.
This requires that the group establish its own objectives.

The process of determining a locally driven agenda requires an informed
and effective decision-making structure within the group. Such a structure
should provide the foundation of a governance model. This is particularly
true in the context of native title, which, based on traditional owner
structures, provides a cultural foundation for the establishment of decision-making
structures that may develop into more formalized governance structures.

However, traditional decision making processes may not adequately address
the type of issues which arise from a development agenda. It is critical
therefore that the capacity of traditional owners and their representatives
to undertake effective decision-making be further developed. Native title
negotiations can provide a framework for the group to discuss with government
the time-frames and the resources necessary to ensure that decision-making
structures can be adapted to respond to the development process.

While the NTA prescribes the establishment of bodies corporate to hold
and exercise native title rights on behalf of the group, there is no mechanism
to ensure these bodies have the capacity to manage the development agenda
of the group. Native title negotiations can provide a forum for discussions
between the group and government on the suitability of these bodies as
a vehicle for sustainable development, the identification of skills that
need to be developed to achieve the local agenda and the time frames necessary
for capacity development within the governing institution.

Building on local capacities and assets

Capacity development recognises that all communities or organisations
possess capacity that can be further developed. Capacity may exist in
terms of an organisation's committed membership, its representative nature
or a community's ability to sustainably use and manage their natural environment.
Traditional owner groups have cohesive cultural and social relationships,
a unique relationship to the land of their ancestors, and values that
are shared by the members of the group. This internal capacity forms the
basis for capacity development. ⁽⁸¹⁾
The emphasis of capacity development is on building the skills of people
within a community or an organisation rather than using external skills
to identify and drive the achievement of objectives.

This principle has important implications for native title negotiations.
These capacities are important assets in a development process. It gives
the group a basis to establish their own objectives and take control over
the development process, even though particular skills may need to be
developed to implement these goals effectively.

While traditional owner groups have structures and processes for decision-making,
these may not be adapted to the type of decisions that arise from their
development agendas. It may be that the group needs to build upon these
traditional governance structures in order to make effective decisions,
manage the process, overcome complex problems, engage with external groups
and build a vision for the future.

For example, senior traditional owners have the governance capacity to
make decisions about important sites through the decision making structures
established by traditional law and customs but may not have the capacity
necessary to make decisions about the management strategy for an Indigenous
business enterprise. Therefore it is necessary that adequate and appropriate
governance institutions are established to enable Indigenous groups to
make decisions. Prioritising governance ensures that Indigenous groups
are able to make effective sustainable decisions.

Ongoing learning and adaptation

Ongoing learning and adaptation are important features of a capacity
development approach. Capacity development objectives may change over
time and the skills of proponents should develop and advance with the
success or setbacks of their development goals.

A series of new ideas, values, rules and behaviours must be learned,
internalized and institutionalized, particularly those that shape the
relationships amongst people in a society. Stakeholders must learn new
ways of problem solving, team building, leadership and conflict resolution.
Learning is not 'delivered' to participants but is acquired by experience
and through inter-action ⁽⁸²⁾.

An important mechanism for ongoing learning and adaptation are monitoring
and evaluation programs. The purpose of monitoring and evaluation is to
identify progress and strengthen capacities. Therefore the monitoring
and evaluation process of a capacity development approach should be developed
at the outset of the project and set criteria based on the objectives
of the development process. Native title negotiations can provide a forum
for the group to discuss with government realistic targets and agreed
indicators of success. In this way the role of the government in facilitating
the group to achieve these targets can be discussed at the outset.

The monitoring and evaluation programs should include indicators that
measure the success of sustainable development objectives. For example,
if traditional owners have negotiated an agreement that includes employment
outcomes, a relevant evaluation would measure the number of peoplefrom
the traditional owner group employed under the agreement and identify
barriers to employment. These monitoring and evaluation programs can asses
not only the strategies adopted to achieve the development goals, but
also the process of capacity development. ⁽⁸³⁾
Specifically, 'the effectiveness of process must be monitored as well
as product or outcomes'. ⁽⁸⁴⁾
This approach requires long timeframe to accurately evaluate capacity
development initiatives.

Ongoing learning and adaptation requires that traditional owners have
the opportunity to develop capacity and evaluate their objectives over
time. The current practice in native title negotiations to develop a singular
agreement in order to settle a claim does not support an ongoing and evaluative
approach. By contrast, ongoing learning should be applied in a manner
similar to the incremental treaty making process currently being undertaken
in Canada. This involves negotiating a series of agreements over time
that allows for the gradual development of capacity within the group.

Long term investments

Capacity development requires long term investment in time and resources.
Learning, assessment, successes and failures are all part of a capacity
development approach. These processes occur over time and form a transformative
process of learning:

… in all areas of human endeavor the beliefs that individuals, groups,
and societies hold which determine choices are consequences of learning
through time - not just the span of an individual's life or of a generation
of a society, but the learning embodied in individuals, groups and societies
that is cumulative through time and passed on inter-generationally by
culture or society. ⁽⁸⁹⁾

Understanding the intergenerational nature of learning and the role of
time within this process is crucial to the success of a capacity development
approach. The importance of a long term commitment to programs or services
directed to Indigenous people is widely recognised. The Commonwealth Grants
Commission in its 2001 Report on Indigenous Funding identified
a 'long term perspective to the design and implementation of programs
and services, thus providing a secure context for setting goals' ⁽⁹⁰⁾
as a key principle for improving the allocation of resources to meet Indigenous
need.

In contrast, time within native title negotiations is a rare commodity.
Traditional owners and their representatives are under constant pressure
to comply with the Court timeframes which fail to take account of the
need for traditional owners to build effective decision-making structures,
identify the capacity needs and aspirations of their group and begin to
actively participate in native title negotiations. Short timeframes are
a serious impediment to capacity development within traditional owner
groups and threaten any opportunity at achieving sustainable development.

Long term investments in capacity development also require the investment
of adequate and consistent resourcing ⁽⁹¹⁾.
Within the native title system the Native Title Representative Body has
primary responsibility for assisting traditional owners in native title
negotiations and are well placed to facilitate capacity development within
traditional owner groups. In addition Prescribed Bodies Corporate (PBCs)
are responsible for the ongoing management of native title and provide
the organizational structure to enable ongoing and sustainable development.

As discussed in detail in Chapter 3 the Commonwealth government has failed
to provide adequate funding to NTRBs nor indeed any funding to PBCs, even
though these institutions are the primary vehicles for achieving the development
objectives of the native title claim group. Native title negotiations
must focus on the need for long term and stable resourcing commitments
to institutions that are integral to the success of the development process.

Integration of activities

As indicated above, sustainable development is a locally driven process
that occurs within a system of interrelated levels and understandings,
including the local, regional, state, national and international levels.
Capacity development must therefore occur at a number of levels and respond
to the power relationships between them. In relation to native title,
capacity development must ensure that the goals of the various institutions
operating at different levels within the overall system are consistent
with the realization of the right of the native title claimant group to
development.

Agencies within State and Commonwealth governments, Aboriginal and Torres
Strait Islander Services (ATSIS), NTRBs, the National Native Title Tribunal,
the Federal Court and industry bodies are the key actors within the native
title sector. To begin a process of capacity development with traditional
owner groups, the actors within the sector level must support such an
approach. Their policies and programs must be co-coordinated towards this
goal.

This approach would require State and Commonwealth government commitment
to capacity development within native title negotiations; adequately resourced
NTRBs; flexible Federal Court timeframes to support capacity development
and effective native title negotiations; co-operative relationships between
State and Federal governments and NTRBs; and the support of the National
Native Title Tribunal through its mediation role. Most importantly each
of these actors must commit themselves to supporting a capacity development
approach to native title negotiations. Lack of support from just one of
these actors may undermine the process and its likelihood of success.

The goal of the recently implemented Council of Australian Governments
(COAG) 'Whole of Government' initiative managed by the Commonwealth is
the co-ordination of services so as maximize the effectiveness of government
agencies across government. Based on a COAG Communique released in November
2000, this initiative is being trialed in 8 Indigenous communities throughout
Australia. Its central platform is 'Shared Responsibility - Shared Future'.
⁽⁹²⁾ Recognising
that Indigenous policy and programs need improvement, the initiative proposes
that:

• governments must work better together at all levels and across all
  departments and agencies; and
• Indigenous communities and governments must work in partnership and
  share responsibility for achieving outcomes and building the capacity
  of people in communities to manage their own affairs.

While the co-ordination of government services is consistent with a capacity
development approach it is not sufficient in itself to achieve the sustainable
development of the group. In addition the question needs to be asked whether
the coordinated government services are directed towards empowering the
Indigenous community to achieve its development goals.

I discuss in chapter 3, part 2 how native title has effectively been
excluded from the "Whole of Government" initiative. There has been little
consideration given either by State or Commonwealth agencies, to utilizing
the assets which are built from the recognition of the inherent rights
of Indigenous people through native title. This is evidenced by the failure
to coordinate native title policy objectives with those that are directed
to the economic development of Indigenous people.

At an organizational level capacity development may require changes in
corporate culture, organizational structures, personnel functions and
management systems. ⁽⁹³⁾
Organisations such as NTRBs may require improvement or capacity building
to assist traditional owner groups to achieve sustainable development
goals.

The 2001-2002 Federal Budget provided $11.4 million to capacity building
for Native Title Representative Bodies. The need for NTRB capacity building
became apparent from the NTRB re-recognition process required under the
1998 amendments and ATSIC cyclical reporting. These two processes revealed
that many NTRBs were struggling to manage the demands of their 'grassroots'
obligations and statutory functions, while others lacked appropriate internal
administration systems and office/communication infrastructure. The capacity
building program includes a four year partnership between NTRBs and ATSIC,
and a framework agreement between identifying objectives, strategies and
projects to be funded under the program agreed. ⁽⁹⁴⁾

A joint NTRB and ATSIC forum ⁽⁹⁵⁾
in 2001 targeted the following areas for the program:

• corporate and cultural governance,
• management and staff development,
• native title technical training,
• collaborative relationships, and,
• research and applied capacity building.

While capacity building directed to organisations such as NTRBs is an
important element of achieving sustainable development, it must be consistent
with and enhance the development objectives of traditional owner groups
by providing opportunities, skills and resources necessary to facilitate
and promote their empowerment.

It is clear from the above discussion of the elements of capacity development
that sustainable development is an ongoing process that requires not that
sustainable development be 'delivered', but that those who seek to achieve
sustainable development within their communities are actively engaged
in setting the agenda and determining the outcomes. The greatest challenge
in this process is developing the governance structures within the traditional
owner group to carry this responsibility.

The Northern Territory government recognizes the challenge of bringing
together contemporary governance arrangements with culturally based systems
of authority and decision-making:

Previous policies have resulted in largely imposed localized structures
that have been designed for "governing for dependence". Without effective
governing institutions, leaders who have cultural legitimacy and the
ability for Indigenous institutions to exercise real decision making
powers, the aims [of the COAG trial] will simply not be sustainable
or of any long term social or economic benefit. ⁽⁹⁶⁾

In a recent paper for the Northern Territory Indigenous Governance
Conference held 4-7 November 2003, Professor Mick Dodson recognised:

'Governance' is about power, relationships and processes of representation,
decision making and accountability. It is about who decides, who has
influence, how that influence is recognised and how decision makers
are held accountable. 'Good governance' is about creating the conditions
for legitimate and capable decision making and for collective action
about a community's affairs. It's about robust and accountable decision
making at a collective level with transparent grievance processes that
protect privacy. ⁽⁹⁷⁾

Governance enables communities to make decisions and work together to
reach outcomes. It is an essential element of capacity development. Governance
both enables capacity development to begin - how else would Indigenous
groups identify their own objectives - and expand as the capacity of the
group to achieve its own objectives develops. In this way capacity development,
becomes an immediate and foundational mechanism to build governance within
Indigenous communities.

Governance has been identified by the research of the Harvard Project
as the most important element in achieving sustained social and economic
development within American Indian Nations.

The Harvard Project on American Indian Economic Development ⁽⁹⁸⁾
set out to understand why some tribes had been able to break away from
long term poverty and economic stagnation, with all the attendant social
problems, while others had not. Stephen Cornell of the Harvard Project
has observed that among the key research findings of the Project is the
critical role of self-governance:

In the United States at least, genuine self-rule appears to be a necessary
(but not sufficient) condition for economic success on indigenous lands.
⁽⁹⁹⁾

Cornell and Taylor have observed that on the basis of twelve years of
research:

The evidence is compelling that where tribes have taken advantage of
the federal self-determination policy to gain control of their own resources
and of economic and other activity within their borders, and have backed
up that control with good governance, they have invigorated their economies
and produced positive economic spillovers to states. ⁽¹⁰⁰⁾

However, in a discussion relevant to Australian traditional owner sustainable
development, Cornell sought to identify the meaning of self-government,
noting that it is significantly different to mere administrative control.
The key findings of the Harvard research point to five factors as the
key determinants of tribal economic success: sovereignty, governing institutions,
cultural match, strategic thinking and leadership.

• Sovereignty
  
  In every case examined where there has been sustained economic performance,
  the major decisions about governance structures, resource allocations,
  development strategy and related matters are in the hands of the Native
  American Indian nations concerned.

• Governing institutions
  
  Self rule is not enough, it has to be exercised effectively, which
  means stability in the rules by which governance takes place, and
  keeping community politics out of day-to-day business and program
  management. As well, there has to be fair, effective and non-politicized
  resolution of disputes. It is necessary to put in place capable tribal
  bureaucracies that are able to effectively deliver services and implement
  decisions.

• Cultural match
  
  The Harvard Project has identified the need to develop tribal governing
  institutions that have credibility within Indian society, that "resonate
  with indigenous political culture". As Cornell points out, historically
  outsiders, typically the US Government, have designed and imposed
  tribal governing institutions; and accordingly these institutions
  are ineffective and inappropriate in managing sovereign societies.
  However, the evidence is that there is no one model that applies across
  all Indian nations, and that the solution to "cultural match" has
  to be worked out according to the particular situation of each group,
  and its response to the need to build institutions on an indigenous
  base.

• Strategic thinking
  
  Despite the pressures for Indigenous communities to look for short
  term outcomes, the Project has noted the key importance of longer
  term strategic thinking and planning, involving a systematic examination
  not only of assets and opportunities but also of priorities and concerns.

• Leadership
  
  The Project noted the key role of leadership in terms of persons who
  can envisage a different future, recognize the need for foundational
  change, are willing to serve the tribal nation's interests instead
  of their own, and can communicate their vision to other community
  members.

In summary, the Harvard Project, without diminishing the importance of
economic factors (resources, distance to markets etc) found that the primary
requirements for developmental success were political rather than economic,
focusing around issues of governance, or more broadly speaking, "nation
building" or "nation re-building":

Nation-building refers to the effort to equip indigenous nations with
the institutional foundations that will increase their capacity to effectively
assert self-governing powers on behalf of their own economic, social
and cultural objectives. ⁽¹⁰¹⁾

The findings of the Harvard Project are compelling - sustainable outcomes
for Indigenous communities cannot be achieved without effective Indigenous
governance institutions. ⁽¹⁰²⁾.

I discuss above how the legal construction of native title in the High
Court's decisions in the Miriuwung Gajerrong and the Yorta Yorta
cases and through the NTA disables native title cannot as a vehicle for
Indigenous governance and sovereignty. Through native title, governments
and courts had an opportunity to give legal recognition to the distinct
political identity of Indigenous people. The Harvard project confirms
that the failure to take up this opportunity makes it more difficult for
policies and programs aimed at the economic development of Indigenous
people to succeed.

However, native title is more than a construct of legislation and the
common law. While the Commonwealth has failed to envisage a development
role for native title, the opportunity exists within native title negotiations
and agreement-making to build the governance models necessary to achieve
sustainable development for the traditional owner group.

Partnerships

The concept of partnerships is embedded within strategies to achieve
sustainable development. The Rio Declaration and its program for implementation,
Agenda 21, identify the importance of a partnership approach, declaring
that 'States shall cooperate in a spirit of global partnership' ⁽¹⁰³⁾
to achieve sustainability goals. The role of partnerships was reiterated
in the 2002 World Summit on Sustainable Development where the UN Commission
on Sustainable Development (CSD) was given responsibility for promoting
initiatives and partnerships to achieve sustainable development ⁽¹⁰⁴⁾.
The CSD undertook this role acknowledging that 'partnerships, as voluntary
multi-stakeholder initiatives, contribute to the implementation' of sustainable
development outcomes. ⁽¹⁰⁵⁾

Sustainable development, conceived as a process that occurs within a
system of interrelated levels requires partnerships between these levels
in order to connect organisations, sectors and individuals to its goals.

If native title negotiations are to contribute to achieving sustainable
development goals, key stakeholders within the native title system must
connect through this common objective.

The most important relationship for Indigenous people seeking sustainable
development is their relationship with government. For traditional owner
groups to achieve their sustainable development goals it is critical that
this relationship is one where the group retains control of the development
process with the government adopting a facilitative role to assist the
group to achieve its development goals.

The Council of Australian Governments (COAG) 'Whole of Government' initiative,
discussed above, proposes that governments work in partnership and share
responsibility for achieving outcomes and building the capacity of people
in communities to manage their own affairs.

In August 2003 the then Minister for Immigration, Multicultural and Indigenous
Affairs included partnerships as an element of his approach to Indigenous
issues:

[There is a] need to recognise that there is a partnership of shared
responsibility between governments and Indigenous people. Governments
and outsiders alone cannot effect the necessary changes.

• Indigenous Australians have rights like all other Australians -
  rights to education, health services and the like. Governments therefore
  have obligations to provide those services in a fair, reasonable and
  appropriate way.
• But rights and responsibilities are inseparable, and there is a
  view, well founded I believe, that the responsibility of the individual
  has not been given sufficient attention. ⁽¹⁰⁶⁾

Agreement making was identified as the mechanism for implementing the
government's shared responsibility and partnership approach. In August
2002, the Minister stated that 'we need agreements that are a two-way
undertaking that change the relationship from one of passive welfare dependency
to a much more equal relationship' based on empowerment. ⁽¹⁰⁷⁾
Such agreements, he stated, should be guided by principles of involvement
of the local Indigenous community in decision making; shared responsibility;
flexibility to meet local circumstances; and an outcomes focus with clear
benchmarks to measure progress.

These commitments of the government offer significant potential for making
real advances in the situation of Indigenous peoples. Yet native title
is not an element of this approach. Nor does the government explore the
potential of native title agreement-making to establish the parameters
of a partnership arrangement in which the development of the native title
claim group is a mutual objective.

What is indicated from this failure to include native title in a partnership
approach is that the partnerships contemplated between government and
Indigenous people are not based on the acknowledgement of distinct Indigenous
identity and cultures or on recognition of the distinct status and inherent
rights of Indigenous peoples. It is not based on recognising Indigenous
jurisdictions or on sharing power.

Consequently the partnerships contemplated are not between equals. They
are partnerships that contain the same asymmetrical relationships which
have fostered the type of dependency that the government is purporting
to address.

The limitations of the government's approach to native title require
that traditional owners find alternative partnerships in order to pursue
their development goals. These may include state governments and their
agencies (including in some instances, agencies other than those dealing
with native title), non-government organisations, and other Indigenous
organisations. Based on an agreed vision that native title negotiations
can contribute to sustainable development these partnerships can work
together to overcome complex problems.

Important partnerships may also develop between traditional owners and
industry groups, particularly where native title negotiations arise from
an industry or resource development project. While the ambit of native
title rights has been limited by the NTA, native title negotiations can
be more wide-ranging, particularly where sustainability principles have
become embedded in the culture of the company concerned.

The international dialogues discussed above on the right to development
and sustainable development establish a new basis on which Indigenous
people can enjoy the benefits of development rather than suffering its
impact. Native title provides an opportunity to lay the foundations for
Indigenous peoples' development consistently with their economic, social,
cultural and political structures and with international human rights
principles.

---

Footnotes

1. Four indictors combined
   create the Human Development Index: adult literacy, enrolment in education,
   per capita GDP, and life expectancy at birth (the later as an indicator
   of physical and mental health status).
2. United Nations Development
   Programme, 'Human Development Index', UN Human Development Report
   2003, Oxford University Press (2003) at 237
3. Australian Bureau of Statistics,
   Deaths (2001), Cat no 3302.0, Commonwealth of Australia (2002)
   at 101 ('Experimental Estimates of Life Expectancy at Birth, Indigenous'
   - unnumbered table, Adjusted Life Expectancy)
4. World Health Organisation
   World Health Report 2002 at xv
5. United Nations Development
   Programme, 'Human Development Index', UN Human Development Report
   2003, Oxford University Press (2003) at 237 - 240
6. In Mabo and others v
   Queensland (No. 2) (1992) 175 CLR 1.
7. Members of the Yorta
   Yorta Aboriginal Community v Victoria [2002] HCA 58 (12 December
   2002)
8. Western Australia v Ward
   [2002] HCA 28 (8 August 2002).
9. The rule against hearsay
   means evidence of the spoken word is not admissible unless certain conditions
   are met. S82(1) NTA states 'The Federal Court is bound by the rules
   of evidence, except to the extent that the Court otherwise orders.'
   Section 82(2) states 'In conducting its proceedings, the Court may take
   account of the cultural and customary concerns of Aboriginal peoples
   and Torres Strait Islanders, but not so as to prejudice unduly any other
   party to the proceedings.'
10. The Members of the Yorta
    Yorta Aboriginal Community v The State of Victoria and Others [1998]
    1606 FCA (18 December 1998), para 36 .
11. ibid, para 39.
12. ibid, para 43.
13. Ben Ward & Ors v State
    of Western Australia & Ors (1998) 159 ALR 483 at 489-90.
14. The approach to the right
    to development adopted in this chapter reflects that taken by the Independent
    Expert on the Right to Development for the United Nations Commission
    on Human Rights, Professor Arjun Sengupta. These views are expressed
    in the numerous reports made by the Independent Expert extending from
    the First Report of the Independent Expert on the Right to Development
    in 2000, (UN Doc Ref: E/CN.4/2000/WG.18/CRP.1, September 2000) to the
    Fourth Report of the Independent Expert on the Right to Development,
    (E/CN.4/2002/WG.18/2, December 2002), and various reports by the Independent
    Expert to the Open-Ended Working Group on the Right to Development.
15. Declaration on the Right
    to Development found at www.unhchr.ch/html/menu3/b/74.htm
16. Recent concluding observations
    in which the Committee addressed Indigenous rights were in relation
    to Australia, Denmark, Finland, Sweden (56th and 57th sessions in 2000),
    Argentina, Bangladesh, Japan and Sudan (58th sessions, March 2001).
17. CERD GR XXIII (51), HRI/GEN/1/Rev.5,
    18 August 1997.
18. ibid, para 4(c).
19. ibid, para 5.
20. I discuss below, in the
    section headed 'Self-Determined Development' why Indigenous people
    should be considered as a people and accordingly are entitled to the
    right to self-determination.
21. CERD GR XXIII (51), HRI/GEN/1/Rev.5,
    18 August 1997
22. Committee on the Elimination
    of Racial Discrimination, Decision (2)54 on Australia - Concluding
    observations/comments, 18 March 1999. UN Doc CERD/C/54/Misc.40/Rev.2.
23. ibid, para 6.
24. DRD, preamble, para 2.
25. CERD GR XXIII (51), HRI/GEN/1/Rev.5,
    18 August 1997, para 4(d).
26. The Mayagna (Sumo) Awas
    Tingni Community v Nicaragua Inter-American Court of Human Rights
    (31 August 2001), para 142 at www1.umn.edu/humanrts/iachr/AwasTingnicase.html
    accessed 18 December 2003.
27. Committee on the Elimination
    of Racial Discrimination Decision (2)54 on Australia, op cit,
    para 9.
28. NTA, s43A
29. Kitok v. Sweden,
    Communication No. 197/1985, UN Doc CCPR/C/33/D/197/1985 (1988), para
    9.2.
30. ibid, para 9.3.
31. Chief Ominayak and the
    Lubicon Lake Cree Band v Canada. Communication No 167/1984, Report
    of the Human Rights Committee, UN Doc A/45/40 (1990).
32. Lansman et al v Finland
    No. 1 (24 March 1994) CCPR/C/49/D/511/1992.
33. ibid, para 9.4.
34. ibid.
35. Lansman et al v Finland
    No. 2, (25 November 1996) CCPR/C/58/D/671/1995, paras 10.5, 10.7.
36. ibid, para 10.7.
37. ibid.
38. The Mayagna (Sumo) Awas
    Tingni Community v Nicaragua, www1.umn.edu/humanrts/iachr/AwasTingnicase.html
    accessed 18 December 2003.
39. ibid at para 149.
40. Article 11(1) International
    Covenant on Economic, Social and Cultural Rights (ICESCR); see also
    Article 25 Universal Declaration on Human Rights (UDHR) and Article
    27(1) Convention on the Rights of the Child (CROC).
41. UDHR Article 17(1).
42. UDHR Article 23(1), ICESCR
    Article 6(1).
43. UDHR Articles 22 and 25(1);
    ICESCR Article 9; CROC Article 26(1).
44. UDHR, Article 26(1); ICESCR,
    Article 13(1); CROC, Articles 28(1).
45. The identification of a
    State's obligations as ones of "conduct and result" is made by the Independent
    Expert on the Right to Development in his first four reports cited at
    footnote 11.
46. UN Committee on Economic,
    Social and Cultural Rights, Concluding Observations of the Committee
    on Economic, Social and Cultural Rights - Australia, UN Doc. E/C.12/1/Add.50,
    1 September 2000.
47. ibid, para 16.
48. See Chapter 2 Social
    Justice Report 2003.
49. United Nations Development
    Programme, UNDP Policy Note, UNDP and Indigenous Peoples: A policy
    of Engagement, UNDP (8 August 2001) p8.
50. ME Salomon and A Sengupta,
    The Right to Development: Obligations of States and the Rights of
    Minorities and Indigenous Peoples, Issues Paper, Minority Rights
    Group International, 2003, p36.
51. See discussion in Social
    Justice Report 2002, Chapter 2
52. M van Walt van Praag (Ed.),
    op.cit, p27; Advisory Opinion on Western Sahara (1975)
    ICJ 12, pp32-33.
53. M van Walt van Praag, ibid,
    pp27-28.
54. E-I Daes, Special Rapporteur
    of the Sub-Commission on Prevention of Discrimination and Protection
    of Minorities and President of the Working Group on Indigenous Populations,
    Indigenous Peoples and their Relationship to Land, UN Doc: E/CN.4/Sub.2/2001/21,
    11 June 2001.
55. ibid, para. 86
56. ibid, para 86.
57. ibid, para 144.
58. The Harvard Project on
    American Indian Economic Development (the Harvard Project) was founded
    by Professors Stephen Cornell and Joseph P. Kalt at Harvard University
    in 1987. The project is housed within the Malcolm Wiener Center for
    Social Policy at the John F. Kennedy School of Government, Harvard University.
    Papers on the findings of the research projects conducted can be found
    at www.ksg.harvard.edu/hpaied/overview.htm
    accessed 17 December 2003.
59. S Cornell and JS Kalt Sovereignty
    and Nation-Building: The Development Challenge in Indian Country Today,
    www.ksg.harvard.edu/hpaied/res_main.htm
    pp2-3 accessed 15 January 2004.
60. ibid p8.
61. ibid pp24-25.
62. Mabo and others v Queensland
    (No. 2) (1992) 175 CLR 1.
63. Members of the Yorta
    Yorta Aboriginal Community v Victoria [2002] HCA 58 (12 December
    2002) at [44].
64. Western Australia v
    Ward; Attorney-General (NT) v Ward; Ningarmara v Northern Territory
    [2002] HCA 28 (8 August 2002) per Gleeson CJ, Gaudron, Gummow and Hayne
    JJ at [91].
65. Members of the Yorta
    Yorta Aboriginal Community v Victoria [2002] HCA 58 (12 December
    2002) at [43] per Gleeson CJ, Gummow and Hayne JJ. Italics in the original.
66. UN Doc CCPR/CO/69/AUS,
    para 9.
67. M Jacobs, 'Sustainable
    Development: A Contested Concept', in A Dobson (ed) Fairness and
    Futurity, Oxford University Press, 1999.
68. Our Common Future, op
    cit, pp114-116.
69. Rio Declaration on Environment
    and Development, Agenda 21, Chapter 37, UN document A/CONF.151/26,
    12 August 1992, ('Rio Declaration'), endorsed by UN General Assembly
    on 22 December 1992 (UN document A/RES/47/190, Principle 22.
70. UN Department of Economic
    and Social Affairs, Division for Sustainable Development, Agenda
    21, Section III, Ch. 26, para 26.1 at www.un.org/esa/sustdev/documents/agenda21/english/agenda21toc.htmaccessed
    17 December 2003.
71. The Indigenous Peoples'
    Plan of Implementation on Sustainable Development, Johannesburg,
    South Africa, 2002 found at www.treatycouncil.org/Final%20Indigenous%20Peoples%20Implementation%20Plan.pdf
72. Kimberley Declaration,
    International Indigenous Peoples Summit on Sustainable Development,
    Khoi-San Territory, Kimberley, South Africa, 20-23 August 2002.
73. ibid
74. Mining Minerals and Sustainable
    Development Project, Breaking New Ground, Earthscan, 2002.
75. Manley Begay Jr, "Corporate
    and Institutional Strengthening for Effective Indigenous Self-Governance
    on the Ground - Policy Lessons from American Indian Nations", paper
    presented at the Indigenous Governance Conference, Canberra,
    3-5 April 2002, p.5. Available at www.reconciliationaustralia.org
76. P Agius & o'rs, 'Doing
    Native Title as Self-Determination: Issues From Native Title Negotiations
    in South Australia', draft paper for International Association for
    the Study of Common Property Pacific Conference, Brisbane, September
    2003.
77. See;Rio Declaration; UN
    Commission on Sustainable Development, Capacity-building for Sustainable
    Development, Report of the Secretary General, 4 March 1996, UN Economic
    and Social Council, UN. Doc E/CN.17/1996/15
78. Acting Chairperson's review
    of ATSIC. Annual Report 2002-2003, ATSIC, Canberra 2003, p9.
79. J., Bolger, 'Capacity Development:
    Why, What and How', Capacity Development Occasional Series, Vol
    1, No.1 May 2000, Canadian International Development Agency
80. United Nations Economic
    and Social Council, United Nations system support for capacity-building,
    New York 1-26 July, 2002, E/2002/58
81. This approach is upheld
    by the Rio Declaration, Principle 9 which requires that 'States should
    cooperate to strengthen endogenous capacity-building for sustainable
    development …'
82. United Nations Development
    Programme, Capacity Development and UNDP, Supporting Sustainable
    Human Development, Draft 1 15 May 1997 www.magnet.undp.org/Docs/cap/BKMORG~1.htm
    accessed 20 October 2003
83. UNDP ibid 1997
84. UNDP ibid 1997,
    p. 18
85. See chapter 4 for a comparative
    analysis of Indigenous policy and legal regimes in Canada, the United
    States of America and Australia.
86. In 1993, the federal and
    provincial governments and the First Nations Summit launched the B.C.
    treaty process and established the B.C. Treaty Commission (BCTC). The
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10 March 2004