Native Title Report 2003 : Native Title Report 2003 Summary
Native Title Report 2003 Summary
The Native Title Report 2003 evaluates native title as a framework
for economic and social development for traditional owner groups. While
the legal framework for native title restricts its capacity to improve
economic and social conditions for Indigenous people, the Report recognises
that the native title agreement-making process provides an invaluable
opportunity for States and Territories to take a broader policy approach.
The approach advocated in the Report is developed in four chapters which
deal with the following topics:
- native title and international standards on development and sustainability;
- native title policies and practices of governments throughout Australia;
- evaluating native title policies as a framework for economic and social
development; and - comparative study of legal and policy frameworks in Canada and the
United States of America.
Chapter 1 - Native title and International Standards on Development
Chapter one of the Report seeks to develop a human rights framework for
economic and social development of Indigenous people based on their distinct
identity. It notes that the growth and development of the Australian economy
throughout our history, culminating in its present stature as one of the
wealthiest in the world, has not benefited Indigenous people to the same
extent as it has benefited non-Indigenous people. Indeed, as documented
in native title cases like the Yorta Yorta case and the Miriuwung
Gajerrong case, economic and social development in Australia has had
a disproportionate impact on Indigenous people who have had to sacrifice
their land and their community structures to make way for growth and development.
The chapter notes that the recognition of native title has not challenged
this inequitable model of development. Native title gives no redress to
the negative impact of past development on Indigenous people. Under native
title law development which either displaced Indigenous people from their
land or prevented them from exercising rights to their land, results in
the extinguishment of native title. Once Indigenous people are
displaced by development, the legal tests for establishing that native
title exists provide an insurmountable barrier to Indigenous people obtaining
recognition of their right to traditional lands.
Human rights principles build a framework for economic and social development
that ensures that Indigenous people are not excluded from its benefits
or disproportionately affected by its impact. Within this framework native
title could play a key role. Drawn from the principles underlying the
right to development defined in the Declaration on the Right to Development
and the international discourse on sustainable development the framework
outlined in chapter one seeks to integrate the ethical principles of equality
and respect with the economic and social forces that direct contemporary
societies. Applying this approach Indigenous people are entitled to development
that is consistent with their human rights. This includes:
- Development that is non-discriminatory in its impact and in its distribution
of benefits, - Development that involves the effective participation of Indigenous
people in defining its objectives and the methods used to achieve these
objectives, - Development that facilitates the enjoyment of Indigenous people's
cultural identity, - Development that realises the economic, social and cultural rights
of Indigenous people, and, - Development that respects the economic, social and political systems
through which Indigenous decision-making occurs.
A further set of principles for an alternative approach to economic and
social development for Indigenous people discussed in chapter one is that
emanating from the discourse on sustainable development. Emphasised in
this discourse is the need to integrate economic growth, social development
and environmental protection as interdependent and mutually supportive
elements of long-term development. The concept of sustainable development
recognises that economic development is not just the exploitation of resources
wherever they happen to exist. It must also take account of the relationships
in which development occurs, including the cultural values of the community.
Chapter one notes that the relationship of Indigenous people to their
land is widely recognised as a basis for their cultural values and identity
and as such must be taken into account in policies aimed at achieving
sustainable economic development. Native title provides an important frame
of reference by which economic and social development can transform the
conditions of Indigenous people's lives. Yet its capacity to contribute
to this process has been hampered, first by the legal system that operates
to restrict rather than maximise these outcomes and second by the failure
of government to build a relationship with traditional owner groups in
which sustainable development is the shared goal.
Having discussed a foundation for the economic and social development
of Indigenous people based on the realisation of their human rights, chapter
one proceeds to explore this notion of development in the context of native
title. It does so 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?
A central element of the Report's response to these questions is directed
to ways in which the capacity of the claimant group can be developed to
take control of the development process. The 2003 Report explains how
capacity development:
- must be driven by a local agenda;
- must build on the existing capacities of the relevant Indigenous group;
- must allow ongoing learning and adaptation within the group;
- requires long term investments; and
- requires that activities be integrated at various levels to address
complex problems.
The native title process must be directed to assist the group to identify
and achieve their development goals. The government's primary role in
the native title process is to facilitate this process.
Chapter 2 - Native title policies and practices in Australia
State, Territory and Commonwealth governments' native title policies
have a significant effect on the scope and content of the agreements they
make with native title applicants. Such policies influence whether agreements
will be confined to the legal definition of native title rights and interests
or whether they will address broader criteria. Chapter two provides a
national overview of native title policies as they are presently formulated
at the State and Federal level and the bureaucratic structures in which
these policies are situated. This is followed in chapter three by an evaluation
of whether these policies provide a framework for economic and social
development
The material included in this chapter was drawn from publicly available
government policy documents and also information from various Indigenous
organisations across Australia. In each State and the Northern Territory,
consultants retained by the Commissioner interviewed officers from all
Native Title Representative Bodies and also various other organisations
and people who had relevant experience of the Government's engagement
with traditional owner communities. Representatives of the Commissioner
and consultants then met with every State Government and, subsequently,
the Commonwealth Government. The research and consultations provides the
material for a set of policy profiles which form the basis of chapter
two of the Report.
Chapter 3 - Evaluating the native title policies and practices in Australia
This chapter evaluates State and Commonwealth native title policies by
reference to whether they direct the native title negotiation process
towards the sustainable economic and social development of the claimant
group. In order to achieve this goal the policies must aim to build the
capacity of the native title group to identify and realise its own development
objectives. The following issues emerged from the evaluation of government
policies. The chapter discusses each of these issues in relation to particular
State, Territory and Commonwealth policies. While Commonwealth policies
were assessed separately in the chapter many of the following issues were
relevant to that evaluation.
Issue 1: Negotiate Not Litigate
A common theme of native title policies is a willingness to negotiate
rather than litigate. The reasons for this vary from practical concerns
about the cost and delays associated with litigation of native title claims
to more substantive concerns about the effectiveness and viability of
litigated outcomes. Absent from most native title policies however is
the identification of the broader policy goals that native title negotiations
are seeking to achieve.
This gap in native title policies means that native title negotiations
have no consistent goals but change depending on the circumstances of
the case. It also means that there has been little policy development
at a State level around defining the elements of a native title agreement
or the processes of negotiation that may be required to contribute to
the sustainable development goals of the traditional owner group. Developing
policy in this way may consider:
- measures to build the capacity of the group for economic management
and governance; - tailoring the agreement to the development agenda of the group;
- ensuring a cultural match between the terms of the agreement and the
values of the group; - providing or working towards the provision of assets on which economic
growth can be built; - providing a basis for sharing benefits generated from developments
that occur on the land; and - monitoring and evaluating the implementation of the agreement against
agreed criteria.
In relation to Commonwealth and many State native title policies this
type of policy development has not occurred.
Issue 2: The Relationship between Native Title Policy
and Indigenous Policy
While there is a failure by many governments to fully develop policy
objectives for native title negotiations, this policy gap could be filled
if they were willing to align native title negotiations with the economic
and social development objectives contained in their broader Indigenous
policies. However, native title continues to be positioned outside this
broader policy framework. In many cases the role of native title is patently
absent from policy responses to the reconciliation process. Native title
negotiations and agreements are not seen as part of the policy toolbox
directed towards transforming the conditions of Indigenous people's lives.
The failure to co-ordinate the goals of native title negotiations with
the State's strategies to address the economic and social development
of Indigenous people not only isolates the native title process from broader
policy objectives; it limits the capacity of those broader policies to
achieve their objective of addressing the economic and social conditions
of Indigenous people's lives. By disregarding native title, broader Indigenous
policy fails to understand the importance of filtering development through
the cultural values and structures of the group which is the subject of
this policy.
The chapter urges that firstly native title policy is informed by the
broader policy agenda directed to the economic and social development
of Indigenous people and that secondly, the legal recognition of inherent
rights through native title is seen as a policy tool that contributes
to this goal.
Issue 3: Negotiations occur within a Legal Framework
The failure of many governments to fully develop a policy direction for
the negotiation of native title agreements means that the process takes
place largely within a legal framework rather than a policy framework.
Consequently, the scope and content of these agreements are predominantly
directed to defining the legal rights that will be enshrined in a native
title determination.
This is not to deny that recognising the legal rights of native title
parties is a necessary element of a native title policy in which the objective
is the sustainable development of the group. Recognition of native title
rights and interests could well provide to the group important assets
on which development could be built, particularly where these native title
rights and interests give the group control of access to the land and
the resources that are on the land. However, the assets of the group are
just one element of what is needed to achieve the group's development
objectives. A broader approach to negotiations within the native title
process should complement native title determinations by facilitating
processes and outcomes that would lead to sustainable development.
One result of constricting agreements within a litigation model is that
it obstructs the negotiation process. For some government's, the legal
tests which determine whether the native title rights asserted can be
recognised and enforced by a Court determine the threshold for entering
negotiations with claimant groups. As a result of applying these tests
the opportunity for States to enter a relationship with traditional owner
groups and discuss their development objectives is not taken up or is
delayed. The Report proposes that once a group has established that it
has traditional links with the land, there should be minimal obstacles
to negotiations commencing, even though the conduct of these negotiations
will be affected by a range of factors. It outlines the approach to negotiation
adopted in parallel situations in Canada where the Courts have refused
to deal with matters where the government has not pursued negotiation
with claimant groups to the greatest extent possible.
Issue 4: Negotiations occur within Land Management Framework
The other framework in which native title negotiations are conducted,
discussed in chapter three, is where the State, as managers of land and
resources, seeks to utilise land or permit the public or private interests
to utilise land that is the subject of a native title claim. In these
cases the future act provisions of the Native Title Act provide
processes for the conduct of negotiations between the State and native
title claimants and an opportunity for States to negotiate with traditional
owner groups as if these groups had legally recognised rights to the land.
The State policy profiles show that, as land managers, States invariably
adopt a pragmatic approach to these negotiations, finding practical solutions
to address the differing interests of the parties. States are realising
that the recognition of native title does not necessarily stand in the
way of the State's economic development or the public's recreational and
conservation needs.
Native title claimants whose land is the subject of future acts are also
benefiting from these negotiations. Agreement-making in itself requires
a level of organisation and decision-making that builds the capacity of
the group for future negotiation and development. The group is treated
by the State as an integrated entity with rights and responsibilities
to the land, much like the State's role as land managers. In addition,
these agreements can provide an important foundation for the ongoing development
of the group including employment opportunities, training and skill development,
infrastructure investment and utilisation of cultural knowledge. As these
agreements multiply, so too the capacity of the group to manage and build
upon their successes improves.
The Report acknowledges the benefits that future act negotiations can
produce for traditional owner groups. However it also notes two limitations
to the generation of agreements through this approach.
The first limitation is that the capacity of this approach to generate
benefits for native title claim groups depends on whether the land the
subject of the claim happens to also be the subject of the State's land
management responsibilities. Indigenous priorities often take second place
to the priorities of the State in its land management role. Unless there
is a broader policy framework that posits the group's development as a
goal in its own right, then development will not occur for those claimant
groups whose land has no priority in the State's land management regimes.
The second limitation is that, even where there is an intersection between
the State's land management regime and a native title claim, the land
management regime may not be capable of providing an economic and social
development basis. Many State land management regimes provide for consultation
with Indigenous people where developments are proposed on their land,
but very few provide Indigenous people with a right to negotiate or share
the benefits of that development process. Yet the economic development
of traditional owner groups is greatly enhanced by the right of Indigenous
people to negotiate with developers over the nature and extent of the
development. Based on this right Indigenous people could negotiate partnerships
in relation to enterprises in which Indigenous input would be mutually
rewarding both for themselves and for developers.
Issue 5: The Relationship between Native title and Existing
Indigenous Land Regimes
Native title is just one of a range of land regimes aimed at recognising
the land rights of Indigenous people. The unique characteristic of native
title is that the rights that are recognised emanate from the traditional
laws of Indigenous people, not from the laws of non-Indigenous people.
However the development of the law of native title through amendments
to the Native Title Act and restrictive interpretations by judges has
severely limited the extent to which rights and interests arising from
Indigenous laws and customs are recognised.
In some States the recognition of native title, even in its limited sense,
has caused disruption and division between Indigenous groups which have
already been allocated rights to land under State legislation and those
entitled to native title rights. This is particularly so where the allocation
of rights under the existing State scheme is not based on traditional
connection to land but on the people's status as residents of a particular
area or their historical connection to that area. The Report criticises
the failure of some States to develop policies to address these divisions
so as to integrate native title into the system of land distribution regimes
that already exist.
Issue 6: Indigenous Participation in Policy Formulation
One way of ensuring that development is at the forefront of the native
title process is through the effective participation of Indigenous people
in the formulation of native title policy. Effective participation occurs
when Indigenous people are substantially involved in formulating the policy
and have given their prior and informed consent to both the policy goals
adopted and the way in which these goals are implemented and evaluated.
Issue 7: Commonwealth's Participation in the Native Title
Process
The Commonwealth participates in native title litigation either as a
party with a property interest in the land affected by a claim, or as
the administrator of the Native Title Act with a policy interest in the
Court's interpretation or application of the legislation to the claim
before it. A further avenue through which Commonwealth policy affects
the native title process is the Commonwealth's funding of participants
in the native title system. The Commonwealth's performance in each of
these roles is discussed in chapter three. Of particular concern is the
effect of the Commonwealth's funding of native title system in determining
whether the native title process can contribute to the economic and social
development of Indigenous peoples.
I note in Chapter 3 how my criticisms of native title funding in previous
Native Title Reports have not been addressed. Despite almost unanimous
support for further funding to native title representative bodies there
are still insufficient funds to allow them to carry out their statutory
functions so as to ensure the recognition and protection of native title.
Nor has the distribution of funding between the institutions within the
native title system been equalised. The system still favours those institutions
whose role is to manage the resolution of native title over and above
those institutions whose role is to represent the interests of native
title holders. The result of this inequity is that the priorities of the
former institutions dominate the native title system. The result of the
current funding formula is a preference for litigation over a negotiation
model, there being insufficient funds for the latter to be fully developed
while funds are being devoted to ensure Court proceedings are advanced.
This leaves no opportunity for traditional owner groups or governments
to pursue development goals through the native title process.
A further worrying aspect of the funding of native title noted in chapter
3 is the failure of the Commonwealth to make provision for Prescribed
Bodies Corporate. These are the legal entities that hold or manage native
title on behalf of native title holders after a determination by the Federal
Court that native title exists. The number of Prescribed Bodies Corporate
is expected to grow as the number of determinations of native title increases
over time. Yet there is a lack of resources for prescribed bodies corporate.
This is a significant flaw in the native title system. It inhibits native
title holders from achieving broader social, economic and cultural development
for their community despite having a determination that their native title
continues to exist.
Chapter 4 - Comparative Study with Canada and the United States of America
Chapter four raises the question of how native title, land rights, and
agreement-making with Indigenous peoples are being approached both at
a juridical and policy level in other comparable developed countries.
The lens through which these international comparisons are viewed is that
of the human right to development and the international discourse on sustainable
development. By analysing other approaches to Indigenous rights and economic
development the situation in Australia is illuminated.
Initiatives in the US and Canada provide concrete examples of what is
required by principles of sustainable development, human rights and the
right to development. In these countries we see an integration of social
and economic development policies directed to Indigenous people with the
recognition of their distinct identity.
In the US, government programs and policies accept, and work toward,
Indigenous self-governance. This is not simply Indigenous involvement
in the administration of government programs. Rather, the US initiatives
involved Indigenous control of land and its natural, and even in some
places, recognition of Indigenous legal and court processes.
The Canadian legal system also provides a broader basis for recognition
of Indigenous connection to land than that provided in Australia. The
Canadian equivalent of Australia's 'native title' recognises Indigenous
rights to resources in land, a right to the land itself (not just to carry
out activities on the land), and receives constitutional protection (prohibiting
Aboriginal rights from being extinguished without consent). These provide
a much stronger basis for reaching economic, social and cultural outcomes
in agreements. The Report outlines a recent trend of incremental treaty-making
undertaken in British Columbia.
The recognition of the distinct identity of Indigenous people and the
cultural, economic and political values that characterise this identity
are essential to the development agenda of Indigenous people. While the
legal construction of native title in Australia has diminished the extent
to which the law will recognise Indigenous laws and customs and decision-making
structures, a broader policy approach to native title can give recognition
to Indigenous identity as it manifests in the way of life of a vast array
of traditional owner groups throughout this country. Negotiating development
within the parameters of this broader understanding of native title provides
an inbuilt mechanism for ensuring that many of the elements necessary
to ensure the success of development policies are present.
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10 March 2004