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Native Title Report 2010: Executive Summary

Native Title Report 2011

Executive Summary

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Executive Summary

It is with great pleasure that I present my second Native Title Report as the Aboriginal and Torres Strait Islander Social Justice Commissioner. I
launched my first Report, the Native Title Report 2010 in February 2011.
These reports are produced each year in accordance with the requirement under
the Native Title Act 1993 (Cth) (Native Title Act) for me to report
annually on the impact of the Native Title Act on the exercise and enjoyment of
the human rights of Aboriginal and Torres Strait Islander
peoples.[1]

In last year’s Native Title Report and Social Justice
Report I identified the priorities to guide me in my work as Social Justice
Commissioner.[2] These priorities
include ensuring the principles of the United Nations Declaration on the
Rights of Indigenous Peoples (the Declaration) are given full effect in
Australia and also promoting the development of stronger and deeper
relationships:

  • between Aboriginal and Torres Strait Islander peoples and the broader
    Australian community
  • between Aboriginal and Torres Strait Islander peoples and governments
  • within Aboriginal and Torres Strait Islander communities.

In the Native Title Report 2010, I built on this framework in the context of our
rights to our lands, territories and resources and outlined four broad themes in
native title and land rights that I will focus on during my term. In the Native Title Report 2011, I concentrate on two of these
themes:

  • creating a just and fair native title system through law and policy
    reform
  • enhancing our capacity to realise our social, cultural and economic
    development aspirations, including through strengthening our
    communities.[3]

Chapter 1: Reviewing key developments in the
Reporting Period

In this Chapter, I review key developments within the native title system
that occurred throughout the Reporting Period (1 July 2010 to 30 June 2011) and
consider the impact of these events on the exercise and enjoyment of Aboriginal
and Torres Strait Islander peoples’ human rights.

Guided by the Declaration I review a number of legislative changes and
consultation papers in light of whether they contribute to the creation of a
fair and equitable system to recognise and adjudicate our rights to our lands,
territories and resources. I also review some significant moments which mark the
ongoing operation of the Native Title Act and consider developments at the
international level which impact on our rights to our lands, territories and
resources.

At the national level the Reporting Period was quiet in terms of legislative
amendment to the Native Title Act. However, there were a number of proposals
which, if enacted, could prove to have a substantial effect on the native title
system.

Senator Siewert of the Australian Greens introduced a private Senators Bill
which, if passed, would significantly reform the Native Title
Act.[4] In addition, the Australian
Government introduced a bill to give legislative effect to its Carbon Farming
Initiative.[5]

In the previous reporting period, two other pieces of native title reform
legislation were introduced but not enough time had passed for me to effectively
report on their operation in last year’s Report. [6] Now that sufficient time has passed, we
are able to have a better understanding of their effect during the Reporting
Period.

At the State level, the State of Victoria passed the Traditional Owner
Settlement Act 2010 (Vic) which sets the benchmark for other states to meet
when resolving native title claims.

I also discuss a number of consultation papers which have relevance to our
rights to our lands, territories and resources. Given the possible effect of the
proposed changes on our rights, it is important that the Australian Government
engages meaningfully and effectively in order to obtain our free, prior and
informed consent. These include:

  • Draft Indigenous Economic Development Strategy Discussion Paper
  • Leading practice agreements: maximising outcomes from native title benefits
    Discussion Paper
  • Native Title, Indigenous Economic Development and Tax Consultation
    Paper
  • Stronger Futures in the Northern Territory Discussion
    Paper.

Independent of the legislative changes and proposals, the
native title system continues to lumber on. Whether the system is fair or
delivers justice is questioned, however until appropriate reform is progressed
we must make the best of what we have. Native title parties continue to make
applications for native title, continue to reach agreements, and continue
tirelessly, to seek remedy in some way to the injustices of the past. In this
Chapter I note two milestones worthy of reflection:

  • the registration of the 500th Indigenous Land Use Agreement
  • South Australia’s first compensation application for the
    extinguishment of native title.

I also consider developments in
international human rights law that concern native title and our rights to our
lands, territories and resources. I urge the Australian Government to consider
these developments and further implement its commitment to supporting human
rights. These developments include:

  • Expert Mechanism on the Rights of Indigenous Peoples 2010
  • United Nations Permanent Forum on Indigenous Issues 2011
  • Australia’s appearance at the Universal Periodic Review
  • Australia’s appearance before the Committee on the Elimination of
    Racial Discrimination.

Finally, in what will be the first in a
series of annual ‘Report Cards’, I provide an assessment of the
Australian Government’s performance across a range of issues, including
its progress towards implementing my recommendations from the Native Title
Report 2010, and draw some concluding observations about progress made
during the Reporting Period. In all, the Reporting Period has been a mixed bag
for our communities trying to navigate the native title system.

Throughout my term I will continue to advocate for a system that allows us to
fully realise our rights as set out in the Declaration and I will continue to
use the Native Title Report as a tool to monitor and assess developments that
impact on our rights.

Chapter 2: Lateral violence in native title: our
relationships over lands, territories and resources

In Chapter 2, I start a conversation about lateral violence and the ways that
we, as Aboriginal and Torres Strait Islander peoples, can create the foundations
for strong relationships with each other.

Lateral violence is often described as ‘internalised colonialism’
and according to Richard Frankland includes:

[T]he organised, harmful behaviours that we do to each other collectively as
part of an oppressed group: within our families; within our organisations; and
within our communities. When we are consistently oppressed we live with great
fear and great anger and we often turn on those who are closest to
us.[7]

These behaviours might include bullying, gossiping, jealousy, shaming, social
exclusion, family feuding and organisational conflict, which can and often does
escalate into physical violence.

The theory behind lateral violence explains that this behaviour is often the
result of disadvantage, discrimination and oppression, and it arises from
working within a society that is not designed for our way of doing things.

Our history of colonisation in Australia has created an environment where
Aboriginal and Torres Strait Islander peoples are relatively powerless and
lateral violence is able to thrive.[8] This history, including the dispossession of our lands and waters, is an ongoing
experience for many Aboriginal and Torres Strait Islander peoples as
non-Indigenous peoples and organisations continue to control the structures,
processes and policies that provide access to wealth and power.

Lateral violence occurs in native title because the non-Indigenous process
imposed by government reinforces their position of power and reignites questions
about our identity. Concepts of power and identity are aggravated in native
title because of the inherent contradiction between past government policies in
Australia that removed our peoples from our
country[9] and the current requirement
under the Native Title Act for us to prove continuing connection to our lands
and waters since the arrival of the British.

Native title can reinforce the imbalance of power between non-Indigenous
peoples and Aboriginal and Torres Strait Islander peoples as well as positions
of authority within our communities. For government and industry, the native
title process can be used to affirm their control, access to and use of lands
and resources. Within our communities, native title can be used to promote
positions of authority as we deal with our history of powerlessness and
oppression, and questions about our identity.

I argue in Chapter 2 that native title itself can generate positive outcomes
for Aboriginal and Torres Strait Islander peoples by recognising our rights to
and interests in our lands and waters.

However, often this potential is not realised and the process that we need to
follow to prove our native title provides opportunities for lateral violence
within our families, communities and organisations. I set out the native title
process and explain how – at each stage of the native title process
– lateral violence can be generated.

I also report on two case studies that demonstrate how Aboriginal and Torres
Strait Islander communities themselves can minimise the impact of lateral
violence in native title: the Quandamooka People’s native title consent
determination on North Stradbroke Island in Queensland; and the Right People
for Country Project in Victoria.

Chapter 3: Giving effect to the Declaration

In Chapter 3, I examine how the Declaration can guide the development
of healthier relationships, not only with governments, industry and the wider
Australian community but also within our Aboriginal and Torres Strait Islander
families, communities and organisations.

I consider how the Declaration can build legislative and policy frameworks
such as native title to ensure that they comply with international human rights
standards and principles and as a result, empower Aboriginal and Torres Strait
Islander peoples to reach their full potential and to respond to lateral
violence when it occurs.

Lateral violence requires a human rights based response that uses the
following key principles that underpin the Declaration.

Self-determination

Self-determination as it applies to Indigenous peoples ‘is the right of
a group of peoples to meet the human
needs[10] of that group, including
the means to preserve that group’s identity and
culture’.[11]

Achieving self-determination is difficult because of the dichotomy of a
government that focuses on the pursuit of individual wealth creation and
Aboriginal and Torres Strait Islander peoples who may pursue self-determination
as individuals or groups within a cultural context that focuses more broadly on
social, cultural and environmental as well as economic benefits.

Participation in decision-making and free, prior and informed
consent

The denial of our right to participate in decision-making and the
deterioration of our community norms and protocols increases the potential for
conflict resulting in lateral violence. In order to avoid this outcome, our
participation in decision-making must be underpinned by the principle of free,
prior and informed consent.

This principle should be the basis upon which to develop all frameworks of
engagement with Aboriginal and Torres Strait Islander peoples and is fundamental
to ensuring our effective participation in decision-making on issues that affect
us. Securing commitment to these key principles early on in the native title
process also ensures that the frameworks and processes do not further exacerbate
existing conflicts or create new ones.

Non-discrimination and equality

Discrimination and inequality perpetuates lateral violence in three ways:

  • Racial discrimination reinforces negative stereotypes about Aboriginal and
    Torres Strait Islander peoples, which can become internalised and generate
    lateral violence.
  • Lateral violence thrives in environments where our human needs (such as
    acceptance, access and security needs) are not met.
  • Equality requires acknowledgement of cultural difference and recognition
    that historical discrimination has continuing negative
    impacts.

Governments need to remove existing structural and systemic
impediments to healthy relationships within our communities and reinforce
protections against race discrimination. In the native title context, this will
improve relationships between traditional owners and governments, and facilitate
positive relationships between traditional owners and external parties to native
title negotiations.

Respect for and protection of culture

The native title system and other land rights and cultural heritage processes
directly question our culture and our cultural identities. This has been a
source of considerable conflict and lateral violence and this will continue
until appropriate structures are established with Aboriginal and Torres Strait
Islander peoples that promote, maintain and protect our culture.

Therefore, the recognition of Aboriginal and Torres Strait Islander cultures
and cultural differences must be a key consideration in policy development and
implementation in Australia. The Declaration provides a strong basis from which
Aboriginal and Torres Strait Islander peoples can affirm their rights and define
their aspirations in their relations with governments and other stakeholders
around development with culture and identity.

In relation to native title, the Declaration assists us to develop
responses to lateral violence that:

  • empower us to take control of our community and community aspirations
  • promote and develop our community decision-making and dispute resolution
    protocols
  • address discrimination and negative stereotypes by promoting equality that
    recognises difference
  • build culture as a form of resilience and strength that promotes healthy
    cultural norms and recognises differences and diversity.

Chapter 4: Options for addressing lateral violence in
native title

Chapter 4 considers options for addressing lateral violence in environments
concerning our lands, territories and resources. These options aim to provide
Aboriginal and Torres Strait Islander peoples and communities with some ideas
about how to address lateral violence through the establishment of strong
structural foundations and principles.

The Chapter also discusses options for governments to provide support to
Aboriginal and Torres Strait Islander peoples to address lateral violence played
out in native title processes. It demonstrates how the Declaration can be
applied as a human rights framework to guide the creation and maintenance of an
environment where Aboriginal and Torres Strait Islander communities can reach
their full potential.

In applying a human rights-based approach, the
following options may assist to address lateral violence in the native title and
land rights environment.

Naming lateral violence

Naming lateral violence is essentially a process of education. It is about
giving our communities:

  • the language to name lateral violence behaviour
  • the space to discuss its impact
  • the tools to start developing solutions.

The native title system
must foresee when lateral violence is likely to occur and be equipped to
identify it and address it. This means that engaging in native title processes
requires solid preparation and robust frameworks to accommodate the potential
for disagreement and conflict, and enable people to work through it.

Legislative and policy review and reform

Legislative and policy review and reform can assist Aboriginal and Torres
Strait Islander communities to address lateral violence by creating structures
that promote healthy relationships both within our communities and with external
stakeholders. These structures should involve a strengths based approach that is
informed by human rights standards and applied to both governments and
communities.

The Attorney General’s Department has progressed a number of native
title reforms to move towards a more flexible approach that encourages
negotiated outcomes and discourages litigation and adversarial approaches.
However, it is my view that we cannot simply reform the native title system in
isolation to the broader legislative and policy framework and hope that this
will ‘fix’ the native title system. In order for the native title
system to be as effective as possible, the legislative and policy framework
within which it exists must also support its operation.

On 27 January 2011, Australia appeared before the Human Rights Council
Universal Periodic Review (UPR).[12] The Human Rights Council recommended that Australia revise its Constitution,
legislation, public policies and programs to enable the full implementation of
the United Nations Declaration on the Rights of Indigenous
Peoples.[13]

We currently have three opportunities to progress legislative and policy
reform that would respond to this recommendation and significantly improve the
operation of the native title system. These are to:

  • ensure that the unique and inherent rights of Aboriginal and Torres Strait
    Islander peoples are protected under the National Human Rights Framework
  • reform the Australian Constitution to recognise Aboriginal and Torres Strait
    Islander peoples, and prohibit discrimination on the basis of race
  • maintain efforts aimed to create a just and equitable native title
    system.
Culturally relevant frameworks

The process to recognise our native title must be culturally relevant if it
is to achieve successful outcomes for Aboriginal and Torres Strait Islander
peoples. Otherwise, the native title system will continue to operate in ways
that exclude and divide Aboriginal and Torres Strait Islander peoples and
communities. We will continue to be disempowered and struggle amongst ourselves
to define our own destinies.

Whether commencing a native title claim process, negotiating an Indigenous
Land Use Agreement or establishing a Prescribed Body Corporate, we need
appropriate frameworks for participation, decision-making and conflict
management to prevent behaviours that result in lateral violence. These
preventative measures need to be negotiated with the affected groups as early on
in the process as possible:

... at the outset of any native title agreement-making process, there is a
need for the negotiation of an agreed decision-making and dispute management
framework amongst the Indigenous parties as a prerequisite to the successful
implementation and sustainability of
agreements.[14]

These measures will assist those involved to set up guidelines for
engagement, identify historical and contemporary issues and possible points of
contention, and establish protocols for managing conflict that can lead to
lateral violence behaviours.

Conclusion

In conclusion, I highlight the need to ensure that legislative and
policy frameworks advance the rights of Aboriginal and Torres Strait Islander
peoples and empower us to reach our full potential in accordance with the
Declaration.

The recognition of our native title provides a unique opportunity for many
Aboriginal and Torres Strait Islander peoples to overcome disadvantage.

But the native title system must operate in a way that empowers us to achieve
this outcome. It must be supported by strong foundations that ensure our
self-determination and enable our effective participation in decision-making.

[1] Native Title Act 1993 (Cth), s 209.

[2] M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2010, Australian Human Rights Commission (2011), ch 1. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011); M Gooda, Aboriginal and Torres Strait Islander Social
Justice Commissioner, Social Justice Report 2010, Australian Human Rights
Commission (2011), ch 1. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport10/index.html (viewed 18 July 2011).

[3] M Gooda,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2010, Australian Human Rights Commission (2011), ch 1. At http://www.humanrights.gov.au/social_justice/nt_report/ntreport10/index.html (viewed 18 July 2011).

[4] Native
Title Amendment (Reform) Bill 2011
(Cth).

[5] The Government’s
Bill received assent on 15 September 2011 and is now the Carbon Credits
(Carbon Farming Initiative) Act 2011 (Cth).

[6] Native Title
Amendment Act (No 1) 2010 (Cth), Native Title Amendment Act 2009 (Cth).

[7] R Frankland and P
Lewis, Presentation to Social Justice Unit staff, Australian Human Rights
Commission, 14 March 2011.

[8] R
Frankland, M Bamblett, P Lewis and R Trotter, This is ‘Forever
Business’: a framework for maintaining and restoring cultural safety in
Aboriginal Victoria (2010), p
19.

[9] The Protection Acts that
governed the removal of Aboriginal and Torres Strait Islander peoples can be
found at AIATSIS, To Remove and Protect, http://www1.aiatsis.gov.au/exhibitions/removeprotect/index.html (viewed 21 September 2011).

[10] For a discussion on human needs theory, see Chapter 2 of the Social Justice
Report 2011.

[11] UNESCO,
‘Conclusions and recommendations of the conference’ in van Walt van
Praag (ed) The implementation of the right to self-determination as a
contribution to conflict prevention, 1999, p
19.

[12] The Universal Periodic
Review is a unique process, established by the Human Rights Council to review
the human rights records of every country. See United Nations Office of the High
Commissioner for Human Rights, Universal Periodic Review, http://www.ohchr.org/EN/HRBodies/UPR/Pages/UPRMain.aspx (viewed 20 September 2011).

[13] Human Rights Council, Report of the Working Group on the Universal Periodic
Review Australia, UN Doc A/HRC/17/10 (2011), rec 106. At http://www.ohchr.org/EN/HRBodies/UPR/PAGES/AUSession10.aspx (viewed 8 September 2011).

[14] Visiting Research Fellow, Toni Bauman has published a Native title Research Unit
Issues paper which sets out some of the process issues, practical implications
and techniques arising out of IFAMP’s case study. See T Bauman,
‘Waiting for Mary: Process and Practice Issues in Negotiating Native Title
Indigenous Decision-making and Dispute Management Frameworks’ (2006) Vol.
3, Issues Paper No. 6. Land, Rights, Laws: Issues of Native Title, p 1.
At http://www.aiatsis.gov.au/ntru/docs/publications/issues/ip06v3n6.pdf (viewed 12 October 2011).