Native Title Report 2001: Appendix 2
Native Title Report 2001
Appendix 2:
Submission of the Aboriginal
and Torres Strait Islander Social Justice Commissioner to the Inquiry
into Indigenous Land Use Agreements by the Parliamentary Joint Committee
on Native Title and the Aboriginal and Torres Strait Islander Land Fund
Executive Summary
Native title agreements
are emerging as an important tool in defining the rights of native title
holders over their land. As Aboriginal and Torres Strait Islander Social
Justice Commissioner I welcome negotiation and agreement-making as a way
of establishing a stable and enduring basis for a dynamic and long term
relationship between Indigenous and non-Indigenous people over land. However
I am concerned that throughout this process there are currently no mechanisms
to ensure that the human rights of Indigenous people are being respected.
Substantive outcomes that are just and equitable are only achieved if
there are minimum standards in place that require recognition and protection
of these human rights.
An increasing number
of native title agreements have been reached across the country, both
within and outside the provisions of the Native Title Act (NTA).
Many agreements reached outside the Act have emerged from negotiations
which were initially conducted within the processes of the NTA. Others
were negotiated entirely outside the NTA, with the provisions of the NTA
acting as a catalyst. In all instances the NTA and the benchmarks contained
within it are instrumental to the process by which native title agreements
are reached and the rights contained within them. It is therefore essential
that these legal benchmarks are consistent with human rights principles
of equality and effective participation.
As explained in the
Native Title Reports 1998, 1999 and 2000 the benchmarks
contained in the amended NTA are racially discriminatory in significant
ways. In the four sets of provisions which these Native Title Reports
identify as discriminatory: the validation, confirmation, primary production
and right to negotiate provisions, any conflict that arises between native
title interests and non-Indigenous interests is resolved by ensuring that
non-Indigenous interests always prevail over Indigenous interests. [1]
The failure of the NTA to provide to native title-holders the same level
of protection of their interests as that provided to non-Indigenous interests
is racially discriminatory. Moreover these provisions were adopted in
July 1998 without the informed consent of Indigenous people.
In the context of
this legislative framework governing native title the human right standard
of equality is not required to determine the allocation of rights under
native title agreements and the standard of effective participation
is not a necessary component in the agreement-making process.
The major human rights
standards elaborated at international law with regard to Indigenous people
are the rights to:
- Non-discrimination
on the basis of race as required by article 2, International Convention
on the Elimination of All Forms of Racial Discrimination (ICERD); article
26 International Convention on Civil and Political Rights (ICCPR) - Equal protection
of property interests before the law as required by article 5, ICERD,
and article 17, Universal Declaration of Human Rights (UDHR) - Protection of
the right to maintain and enjoy a distinct culture as required by: article
2, ICERD, and article 27, ICCPR, and - Right of Indigenous
people to effective participation in decisions affecting them, their
lands and territories as required by: article 5(c) of ICERD, article
1 of the ICCPR, and article 1 of the International Covenant on Economic
Social and Cultural Rights (ICESCR).
The native title
agreement-making process should be based on the following principles that
have been generated from the above human rights principles:
1. Native title
interests are entitled to the same level of protection as non-Indigenous
interests2. Non-extinguishment
of native titleNative title-holders
should not be required to give up native title in order to access or
enjoy benefits that arise from negotiations based on the existence or
prior existence of their native title. Negotiations that respect the
equality of Indigenous peoples' property rights with other property
rights will not seek further extinguishment of native title. Furthermore,
where the legal question of prior extinguishment is uncertain, but native
title parties maintain a relationship with the land based on traditional
law and custom, negotiations should proceed as if native title continues
to exist. Even where native title has been extinguished in a part of
the claim area, this should not preclude negotiations regarding that
land if the interest that extinguished the native title has ceased (and
the land has reverted to Crown title) and the native title claimants
maintain a connection with that land based on the observance of traditional
law and custom.3. Negotiation
of agreements that encourage and allow continued observance of Indigenous
laws and customsInternational human
rights treaties recognise that all peoples have an equal right to practice
and enjoy their distinctive culture. Native title negotiations should
not require native title parties to breach their laws and customs in
order to obtain the benefits of their native title interests.4. Negotiation
of agreements that recognise Indigenous governance within their traditional
landsInternational human
rights principles recognise that Indigenous peoples have a right to
effective participation in decisions affecting their traditional lands.
In relation to native title negotiations, this right should lead to:
- Recognition
of native title holders as owners or joint-owners and managers of
the land;- Provision for
joint-management arrangements in national parks;- The group itself
should determine membership of the native title party based on General
Recommendation VIII, of ICERD which states that 'group membership
shall, if no justification exists to the contrary, be based upon self-identification
by the individual concerned. [2]5. Recognition
that native title is a group right and that the inter-generational aspect
of the right must be protected6. Recognition
that native title is a unique interestNative title has
cultural, religious and social significance. Furthermore, its economic
value to Indigenous people is limited by the fact that it is inalienable.
Consequently, purely economic assessments of land value are not appropriate
for the calculation of compensation. Negotiated agreements should reflect
this.7. Native title
parties' "connection" to land should not be interpreted restrictively.It must be recognised
that, just as non-Indigenous Australian culture has changed since the
British acquisition of sovereignty, so have Indigenous cultures. 'Connection'
to land may include contemporary cultural beliefs and practices forming
a distinct indigenous culture that has developed from an earlier traditional
culture as it existed at the time of the acquisition British sovereignty.
I advocate the use
of framework agreements to institute these principles into the native
title agreement-making process.
Native title agreements are
limited by the discriminatory standards contained in the NTA
My concern that native
title agreements are not required to meet human rights standards is substantiated
by an examination of the legislative context in which agreement-making
occurs. In addition to the four sets of provisions which the previous
three Native Title Reports identify as discriminatory (referred
to above), the future act provisions of Division 3 Part 2 of the NTA,
as they have recently been interpreted by the Federal Court, also fail
to provide to native title holders protection of their interests that
is equal to that provided to non-Indigenous interests. These procedural
rights are particularly significant in determining whether and at what
level Indigenous people are engaged in negotiations concerning state-wide
land use policy including water management, infrastructure, national parks,
agricultural activities etc. Two cases are of particular significance
in this regard.
In the course of
a native title determination application before the Federal Court, the
Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples sought a declaration
that a buoy mooring authority issued by the State to Pasminco Century
Mine Limited was invalid. [3] The primary basis of the
invalidity was asserted to be non-compliance with the procedural requirements
of the future act provisions of the NTA.
The Court held that
non-compliance with the notification or other procedural requirements
of those subdivisions of the NTA does not affect the validity of a future
act. [4]
The decision raises
serious questions about the value of the protections offered by the NTA
pending a determination of native title, particularly in relation to non-mining
future acts. It appears to render compliance with the procedural requirements
of certain provisions of the NTA optional on the part of governments and
third parties.
The decision in Harris
v Great Barrier Reef Marine Park Authority [5] also highlights
the failure of the NTA to provide adequate protection to native title
interests. Between November 1998 and February 1999 the applicants received
109 notices for permits, primarily for tourism activities, in the area
of sea covered by their native title claim.
The notices did not
disclose the identity of the applicant for the permit in each case nor
the area or location within the claim area where the proposed act was
to occur. The majority of the notices provided little more than a blanket
description of the areas.
The Court held
that the notices complied with the requirements of section 24HA NTA.
Further, the Court held that there was no requirement in subsection
24HA(7) NTA requiring notification to be given to registered native
title claimants before an Authority had determined to grant the permit
requested. [6]
Here again, the Court's
decision raises serious questions about the value and utility of the procedural
rights available to native title holders under Subdivision H Division
3 Part 2 NTA.
The majority of Indigenous
Land Use Agreements (ILUAs) deal with 'future acts' and their impact on
native title rights. [7] Where the NTA permits the non-Indigenous
party to proceed with the proposed act without notifying or consulting
Indigenous parties, native title parties have no real bargaining power
in the agreement-making process.
In view of this legislative
framework and the inequality between Indigenous and non-Indigenous parties
devised by the NTA, I am not confident that, in their current form, the
ILUA provisions can guarantee outcomes that transform these unequal relationships.
I have advocated legislative amendment in my preceding three Native
Title Reports and before this Committee (23 February 2000) as the
most secure method of removing the discriminatory benchmarks in the native
title process. In particular I have recommended that the Federal government
commence negotiations with Indigenous representatives and native title
applicants ensuring that the NTA has the consent of Indigenous people.
I advocate this approach
not so as to finally determine the rights of the Indigenous and non-Indigenous
parties over native title. The NTA should be amended so that the agreements
that will inevitably continue to be reached between Indigenous and non-Indigenous
people over native title can form the basis of an enduring and stable
relationship between them. Where racial discrimination remains intrinsic
to the agreement-making process, the relationship between Indigenous and
non-Indigenous people will always be contingent upon its eradication.
In this submission
I focus upon the agreement-making process as an alternative course available
to Federal, State and Territory governments, and peak bodies that have
the political will to deal with native title rights on the basis of equality.
A clear illustration of how agreements can mitigate the discrimination
contained within the NTA is their capacity (under sections 24BB and 24CB)
to change the extinguishing effects of the validation of intermediate
period acts. Unfortunately, to date, no ILUA has been used for this purpose.
Native title is the
recognition of the laws and customs that make Indigenous people distinct.
Native title agreements provide an opportunity to governments and other
parties to deal with Indigenous people on the basis of the recognition
of this unique identity. What I advocate is the use of framework agreements
to institute non-discriminatory standards in the native title process.
These standards then provide a benchmark against which site-specific and
project-specific agreements can be negotiated.
The utilisation of framework
agreements to ensure the adoption of minimum standards by negotiating
parties
Settling co-existence
by agreement cannot be bypassed. Legislation does not and cannot dictate
the way in which people sharing land will live together. A court does
not and cannot direct the parties to a dispute on how they should interact.
Only the parties to the relationship can do this.
As I have indicated
framework agreements provide an opportunity to both Indigenous and non-Indigenous
parties to settle upon a set of standards for the co-existence of their
interests in land. The human rights principles outlined above provide
the basis for a co-existence that is productive, stable and enduring.
There are many examples
of States and peak bodies entering framework agreements with Indigenous
representatives in order to set standards and templates for subsequent
site-specific or project-specific agreements. The South Australian Government,
Farmers Federation and Chamber of Commerce are working with native title
groups and the representative body, Aboriginal Legal Rights Movement,
to establish a state-wide framework agreement in which an enormous range
of issues, including, native title determinations, access agreements,
service provision, public health, heritage protection, intellectual property
rights, water management, environmental management infrastructure, heritage
clearance and notification procedures are on the table. In Victoria the
State government, ATSIC and the Mirimbiak Nations Aboriginal Corporation
have agreed to a Protocol for the Negotiation of a Native Title Framework
Agreement for Victoria in in order to resolve native title applications
as well as a broad range of issues outside of native title. In New South
Wales, the NSW Aboriginal Land Council and NSW Minerals Council have signed
a Protocol for the Negotiation of Agreements for Exploration and Mining
for NSW. In Queensland the State government and Indigenous representatives
are negotiating an ILUA for determining the process for issuing of notifications
under s29 of the NTA. Western Australia is currently reviewing its guidelines
in relation to native title and in relation to s29 notifications. Clearly
there is a willingness by governing and representative bodies to establish
a framework for the co-existence of Indigenous and non-Indigenous interests
in land.
The process by which
this framework is being established is as important as the standards that
it sets. Indigenous people must be invited to participate in the process
through negotiation, not consultation. Issues that integrally affect Indigenous
people should only be decided upon with their informed consent.
The following is
a discussion of just some of the issues that have arisen in the formulation
of framework agreements.
1. The settlement of native
title applications by agreement.
The membership of
the native title group, its traditional lands, and its relationship to
this land can be agreed upon through regional or state-wide agreements
aimed at facilitating productive future negotiations between Indigenous
and non-Indigenous people. The South Australian state-wide agreement process
demonstrates the potential of agreement-making to determine native title
applications where native title groups across the State are involved in
the process.
Blanket opposition
and conditional opposition to settling native title determinations through
agreement have been raised at the government level.
Blanket Opposition
The Federal Attorney-General
has criticised the use of the agreement process for the purpose of settling
native title claims.
ILUAs and determination
are both important but very different tools - they have different objectives
and serve different purposes. One is not capable of replacing the other.
ILUAs were never intended to be an alternative to a native title determination.A determination
of native title - whether by consent or at the end of a hearing before
a court - establishes the area over which native title exists, its nature,
content, and extent, and the identity of the native title holders. Determinations
guarantee important procedural benefits for native title holders under
the Act. [8]
In my view this approach
gives too much credit to the capacity of courts and the legal system to
determine native title claims in a just and equitable manner. The court
process, from application through to a hearing followed by a determination,
has not proven to be a fruitful process for Indigenous people claiming
native title.
The Yorta Yorta
case [9] stands as a poignant reminder of the injustice
contained within the common law's recognition of native title. That is,
where the dispossession of Indigenous people through colonialism has been
most brutal and systematic, the less likely that the traditions and customs
practiced today by the descendants of these Indigenous people will be
recognised and protected by the law as native title rights.
Even though Justice
Olney made it quite clear in the Yorta Yorta decision that he was
not concerned with addressing this fundamental injustice within the common
law, his treatment of the evidence before him and his limited construction
of native title as a bundle of rights compounded this injustice.
The case demonstrates
the limitation of the legal concept of native title and its failure to
protect contemporary Indigenous culture when constructed as a bundle of
frozen rights recognising only traditional practices as they occurred
prior to sovereignty.
In contrast to determining
native title through the legal system, the agreement process is premised
on the understanding that the parties to the agreement have an equal right
to be at the negotiating table. Of course issues might arise between the
Indigenous parties as to who constitutes the native title party. Non-Indigenous
parties also need to be assured that they are dealing with the right parties.
These issues are discussed below. The central issue in the agreement making
process however is how the rights of the parties affect each other. It
may be of no consequence to a farmer that native title is either a bundle
of rights or a right to land, or that it is either extinguished or suspended
by inconsistent acts, so long as he is able to continue unimpeded in his
enterprise. A framework agreement based on human rights principles, involving
all those affected throughout the state or in a particular region can
bypass the injustice inherent in the legal system where there is no practical
reason to rely upon it.
Conditional Opposition
A developing practice
by state governments is to require a connection report from independent
experts about the merits of the native title claim prior to entering into
negotiations with the claimant group. Connection Reports are a pivotal
part of native title policy in Queensland and are a significant part of
the Western Australian draft guidelines currently under review. [10]
The primary purpose
of the connection report appears to be to satisfy the government as to
the legitimacy of the native title claim in order to protect the
non-native title parties rather than assisting in the process of building
a long lasting, stable and equitable set of relationships between all
stakeholders.
Connection reports
are reports written about Indigenous people, culture and land by non-Indigenous
people. They contribute very little to intra-Indigenous agreement regarding
who speaks for what country or about the basis of the native title claimed.
In fact, the production of genealogies using prescriptive and culturally
inappropriate criteria for establishing membership of the group through
biological descent has in some communities greatly increased division
regarding how to pursue native title interests.
The Kimberley Land
Council has explained its concern at a restrictive test, based on genealogies,
for inclusion in the claim group in relation to the registration test
as follows:
The conditions
and implementation of this aspect of the registration test marginalise
the customary law and cultural practices of Aboriginal people in the
Kimberley, where traditional connections to country remain strong. In
order to comply with the registration test, native title claimants are
forced to find ways of expressing extended kin relationships that do
not correlate with the traditional Western definitions based on marriage
and blood ties. The requirement for those in the claimant group to express
the relationships which connect them in terms of biological descent
is at odds with traditional ways of defining who has rights to countryAboriginal ways
of defining their relationships within a claimant group are belittled
when they must do so according to Euro-centric notions of a biological
descent group. This feature of the registration test and its administration
is creating an artificially narrow definition of the claimant group
The laws and customs which underpin native title rights should be accorded
legitimacy in the process of registering native title claims. [11]
The assumption that
native title parties' claims must be 'legitimised' through the production
of 'connection reports' takes away native title parties capacity to speak
for themselves. I argue below that an important part of building enduring
relationships between all stakeholders is empowering Indigenous people
to speak for and represent their own interests.
Building relationships
between all stakeholders
Building relationships
between all stakeholders through native title agreements will require
that some basic issues about the nature of native title and the native
title group be established early in the negotiation process. These issues
include;
- ensuring that
negotiations are conducted with native title parties who, in accordance
with their tradition, can speak for country. There is mutual benefit
to parties to a native title agreement including in the agreement some
level of definition to the membership of the native title group. For
Aboriginal people it ensures adherence to the principle that no-one
can speak for another person's country. For non-Indigenous parties it
ensures that negotiations are being held with those people who have
the authority to provide binding promises in relationship to the land
in question. - establishing what
country native title parties can speak for, and - establishing basic
information about their relationship with the land.
The process of building
a stable set of relationships between all stakeholders relies upon
the existence of stable agreement between and within Indigenous communities
about these issues. Where these are unclear it is essential that Indigenous
communities themselves are involved in sorting out the issues. Building
this agreement requires that, as a first and fundamental step to all negotiation
processes, Government must engage directly with Indigenous communities
and resource Indigenous people to work out amongst themselves how they
wish to pursue their native title rights. This may involve:
- empowering Indigenous
people to resolve disputes over native title issues, and to this end: - allocating resources
(time, money and personnel) for Indigenous institution building, - allocating resources
(time, money and personnel) for capacity-building in Indigenous communities,
and - resourcing Indigenous
people to effectively participate in negotiation processes within their
own communities and with other stakeholders in land.
As a result of these
processes, native title parties themselves could produce a report (a negotiation
report) such as that suggested by the Western Australian Aboriginal Native
Title Working Group (WAANTWG) "Submission to the Review of the State
Government's General Guidelines" of 16th May 2001.[12]
In this way, it may be possible to clarify issues that are central to
all native title negotiations and are fundamental to establishing stable,
equitable relationships between all parties, while ensuring that the processes
according to which the negotiations are conducted respect the fundamental
human rights of all parties.
Agreements offer an opportunity to return decision-making power over group
membership to Indigenous people. Such an approach has the support of the
CERD Committee through General Recommendation VIII, which states that
'group membership shall, if no justification exists to the contrary, be
based upon self-identification by the individual concerned. [13]
A benefit for all stakeholders in adopting this approach is that it ensures
that each individual member act with the authority of the claimant group.
2. Future Act Agreements
As indicated the
majority of native title agreements, both under the ILUA regime or outside
the NTA, deal with 'future acts' and their impact on native title rights.
[14] These agreements decide the terms by which Indigenous
people and non-Indigenous people co-exist on native title land. While
these agreements deal with a vast range of issues, from mining projects
to the installation of moorings, it is important that they are all guided
by a set of minimum standards consistent with human rights principles
set out in the executive summary above. Framework agreements, on either
a state or regional level, can ensure that co-existence agreements are
premised on an understanding of native title that:
- applies the non-extinguishment
principle (see definition at s238 NTA) - entitles it to
the same level of protection as non-Indigenous interests - encourages and
allows continued observance of Indigenous laws and customs - recognises Indigenous
governance within their traditional lands including recognition of native
title holders as owners or joint-owners and managers of the land
Framework agreements
can also establish protocols for resolving disputes between the parties
in the negotiation of or for the duration of a particular project. These
may include referral to the National Native Title Tribunal (NNTT) or some
other mediation service culturally sensitive to the issues. The use of
compulsory acquisition to resolve disputes between Indigenous and non-Indigenous
parties is an unacceptable dispute resolution strategy. It is not conducive
to stable and long term relationships between Indigenous and non-Indigenous
people in the area. Nor is it consistent with the human rights principles
of equality and effective participation.
3. Enduring Relationships
A benefit of framing
native title agreements in human rights principles is that it enhances
the durability of the relationship created through the agreement. Two
aspects of the current agreement process detracts from this goal:
- Transferrees of
the non-Indigenous interest are not bound by the native title agreement
whereas successive generations of native title holders are bound by
the agreement. The National Native Title Tribunal have made a number
of suggestions to overcome this inequality at page 4 of its submission
to this inquiry. I endorse these suggestions. I also recommend amendment
of the NTA to rectify this imbalance.
- The recent withdrawal
of the NSW government from a framework agreement that it signed with
the NSW Aboriginal Land Council in March 1999 in relation to the management
of national parks raises the issue of whether such agreements are binding
on governments who are signatories to them or their successors. If,
as it appears, governments are able to renege on these important agreements
without liability then Indigenous parties need to seek further protection
of their rights outside of the agreement. While registration of such
agreements under the ILUA as 'alternative procedure agreements' may
provide some security, further security would be gained by entrenching
the rights agreed to through regulation or legislation.
1.
The Acting Aboriginal and Torres Strait Islander Social
Justice Commissioner argued to the Committee on the Elimination of All
Forms of Racial Discrimination that the validation, confirmation, primary
production upgrade and the amendments to the right to negotiate provisions
are discriminatory see: HREOC, CERD submission, paras 43 - 90. www.humanrights.gov.au
An analysis of these provisions and their application by State and Territory
governments is also contained in the Native Title Report 1999,
pp49 - 67. The Committee on the Elimination of Racial Discrimination also
found these four sets of provisions to be discriminatory in March 1999.
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.
2. International
Committee on the Elimination of Racial Discrimination, General Recommendation
VIII - Identification with a particular racial or ethnic group (Article
1,
paras 1 & 4), 24 August 1990, in UN Doc:
A/45/18.
3. Lardil,
Kaiadilt, Yangkaal and Gangalidda Peoples v Queensland [2001] FCA 414,
Full Court, 11 April 2001
5. (Unreported)[2000]
FCA 603 (11 May 2000) per Heerey, Drummond and Emmett JJ.
6. Per
Heerey, Drummond and Emmett JJ at 15.
7. See
National Native Title Tribunal, Submission to this Inquiry, 30 November
2000, p4
8. The
Hon Daryl Williams, Opening Address, Native Title Forum 2001, Negotiating
Country, Beyond Mabo: The Practical realities of negotiating native title,
Customs House, Brisbane, 2 August 2001
9. The
members of the Yorta Yorta Aboriginal Community v The State of Victoria
and Others (unreported, Federal Court of Australia) [1998] FCA 1606, 18
December 1998 Olney J ('Yorta Yorta').
10. Wand
Review of Western Australian 'General Guidelines - Native Title Determinations
and Agreements"
11. Kimberley
Land Council, Submission to the Parliamentary Joint Committee on Native
Title and the Aboriginal and Torres Strait Islander Land Fund -
Section 206d inquiry into the operation of the Native Title Act 1993,
8 March 1999, (Herein Kimberley Land Council Submission to section 206d
inquiry) pp 5-6.
page 7
12. International
Committee on the Elimination of Racial Discrimination, General Recommendation
VIII - Identification with a particular racial or ethnic group (Article
1, paras 1 & 4), 24 August 1990, in UN Doc: A/45/18.
13. Op
cit, Submission to this Inquiry of the National Native Title Tribunal,
p4
14. At
the National Native Title Tribunal Agreements Conference in Brisbane held
on 1 - 3 August 2001, Senator Jeannie Ferris, Chairperson of this Committee,
informed the conference that compulsory acquisition had been used by a
State government to break a deadlock in negotiations between local Aboriginal
parties and the local council over a community riverbank project.