Native Title Report 2008 - Chapter 3

Native Title Report 2008

Chapter 3

Selected native title cases: 2007-08

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• 1 Other Court decisions
• 2 Bodney v Bennell – the Noongar appeal
  • 2.1 The case
  • 2.2 Successful appeal ground 1 – Continuity
  • 2.3 Successful appeal ground 2 – Connection
  • 2.4 The future of the Noongar peoples’ claim
• 3. Western Australia v Sebastian – the Rubibi appeal
  
  • 3.1 The case
  • 3.2 Content of native title rights and interests
  • 3.3 Extinguishment of native title rights and interests
  • 3.4 The future of the Yawuru peoples’ claim
• 4 Griffiths v Minister for Lands, Planning and Environment (Northern Territory)
  
  • 4.1 The case
  • 4.2 Ground 1: Acquiring native title only, where no other interests in the land exist
  • 4.3 Ground 2: Acquiring land for the benefit of a third party
  • 4.4 Justice Kirby’s dissenting judgment
  • 4.5 The outcome of the case – disposable native title
• 5 Blue Mud Bay – Northern Territory v Arnhem Land Aboriginal Land Trust
  
  • 5.1 The case
  • 5.2 The impact of the National Apology
  • 5.3 The future of fishing in the NT
  • 5.4 Implications of the case on native title and other land rights regimes
• 6 Conclusion
  • 6.1 Section 223
  • 6.2 Presumption of continuity
  • 6.3 Capacity of the court to take into account reasons for change
  • 6.4 Revitalisation of culture
  • 6.5 Recognition and healing

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Resolving native title is not simply about land, it is an historic
opportunity for the State and Commonwealth to turn a new page in
history...^[1]

Federal Court decisions between 2007-08 continue to evidence how the
opportunity to turn the pages of history is rarely realised.

The strong, vibrant and committed Noongar peoples of the South West corner of
Australia had their native title determination over Perth returned to square
one. The Full Federal Court found that the first judge had made a number of
errors in his decision and have sent the case back for consideration by a new
judge, leaving the Noongar peoples uncertain about the future of their rights
over the land. This is despite the Western Australian government openly
acknowledging the Noongar peoples as the Traditional Owners of the land.

The High Court ruled that the Ngaliwurru and Nungali peoples of the Timber
Creek area in the Northern Territory could have their native title rights and
interests compulsorily acquired for the benefit of private business. Although
the case went all the way to the High Court, because of a change of Government
since the case began, the native title interests were never actually acquired.
However, the Griffiths case makes it clear that the Northern Territory
Government can acquire native title rights and interests for any purpose
whatsoever, including for the private benefit of a third party.

Considering the results of court decisions of the past few years, one
can’t help but consider the Yaruwu peoples of the area surrounding Broome
to be lucky that none of the opposing parties found a point of law that could
deny the Yaruwu peoples their native title rights on appeal. However, to have
their rights protected, the matter has been extensively litigated with a number
of decisions delivered by the trial judge and a lengthy judgment in the Full
Court appeal. There may also be more litigation to come, with the Western
Australian government seeking leave to appeal to the High Court. The Yaruwu
peoples will continue the long haul to have their rights recognised, but as the
federal Attorney-General himself has said:

...there will sometimes not be clear cut legal answers or the court’s
decision will not be entirely predictable. So unless participants want to risk
an all or nothing legal throw of the dice, there must be a will on both sides to
devise workable solutions. ^[2]

While native title continues to be determined excruciatingly slowly through
the parties’ resolution of numerous and complicated issues, the Northern
Territory’s coastal Aboriginal population has one very good reason to
celebrate this year. The High Court recognised that the Northern
Territory’s land rights regime (the Aboriginal Land Rights (Northern
Territory) Act 1976), the strongest Aboriginal or Torres Strait Islander
land rights law in the country, provides exclusive possession rights to the
intertidal zone. The intertidal zone contains stocks of barramundi, mud-crab and
trepang. With access along 80 percent of the Territory’s coastline now
dependent on permission from the Traditional Owners, Aboriginal Territorians are
well placed to share in the lucrative commercial fishing industry carried on
close to shore.

Map 1: Selected cases from 2007-2008

Click to enlarge

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1 Other Court decisions

There were many Federal Court hearings throughout the year that considered
native title issues. A number of these were a direct result of the changes made
to the system in 2007.^[3]

In summary, between 1 July 2007 and 30 June 2008, ten determinations of
native title were made^[4] and eight
claims were struck out by the Federal
Court.^[5]

2 Bodney v Bennell – the Noongar
appeal

In my Native Title Report 2007, I summarised the Federal Court
decision which held that the Noongar people have native title rights and
interests in the southwest corner of Australia, including
Perth.^[6] However, in April 2008 the
Full Federal Court found that Justice Wilcox had erred in his judgment in that
case.^[7] Allowing the appeal, the Full
Federal Court held that in some respects Justice Wilcox had strayed from the
questions and evidence that Yorta Yorta required him to address. The Full
Court was not prepared to substitute its own answers on the issues of continuity
and connection, and ultimately they could not determine whether or not native
title rights and interests exist. The case was sent back to a new judge to
decide how the matter should
proceed.^[8] The parties have agreed to
negotiate the claim.

Once again, the decision highlights how the Native Title Act and its
procedures for a determination often result in unjust outcomes. These outcomes
are not only out of step with the intent of Parliament in passing the Act, but
they go against the government’s policies of acknowledging past injustices
and encouraging reconciliation.

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2.1 The case

In Bennell v Western
Australia^[9] (the first
Noongar decision), the Federal Court held that the Noongar people, comprising
400 family names, held native title rights and interests over the Perth
metropolitan area.

In the case, Justice Wilcox accepted that a single Noongar society existed in
1829 and that it continued through to today as a body united by its observance
of some of its traditional laws and customs. In his decision, Justice
Wilcox conceded the enormous impact of European settlement and the cessation of
observance of many traditional laws and customs. Nevertheless, consciously
referring back to words used by the High Court in Yorta
Yorta,^[10] he said that the
Noongar normative system was:

much affected by European settlement; but it is not a normative system of a
new, different society.^[11]

The modifications to traditional law and custom that Justice Wilcox observed
were, in his view, within the parameters of acceptable change, and so the story
of the Noongar was one of continuity and
adaptation.^[12]

The decision of Justice Wilcox in the first Noongar case was appealed by the
Western Australian and Commonwealth governments and other parties. The Full
Federal Court allowed the
appeal^[13], deciding that Justice
Wilcox had failed to consider two matters that the Noongar claimants were
required to establish under s 223 of the Native Title Act if they were to be
successful in proving their native title.

The first was that Justice Wilcox hadn’t properly considered whether
there had been continuous acknowledgment and observance of the traditional laws
and customs by the Single Noongar Society from sovereignty until today.

The second was that Justice Wilcox hadn’t properly considered whether
the Noongar people had proven a connection with the specific area before the
court. The area the Noongar people were claiming native title over in this case
was the Perth Metropolitan Area. This area was labelled ‘part A’ of
a broader claim area called the Single Noongar Claim, which had earlier been
split in to part A and part B. The Full Federal Court considered that Justice
Wilcox had wrongly taken the view that it was enough that the claimants had
established a connection with the broader area of the Single Noongar claim (part
A and part B combined). Some aspects of the decision have broader implications
for native title and are of concern.

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2.2 Successful appeal ground 1 – Continuity

There were a number of aspects of the requirement for continuity that the
Full Federal Court commented on in the Noongar appeal. The Full Federal Court
considered that Justice Wilcox had erred by asking whether the community
survived, rather than whether the laws and customs in relation to land continued
from sovereignty to the present:

Instead of enquiring whether the laws and customs have continued to be
acknowledged and observed substantially uninterrupted by each generation since
sovereignty, [Justice Wilcox] asked whether the community that existed at
sovereignty continued to exist over subsequent years with its members continuing
to acknowledge and observe at least some of the traditional 1829 laws and
customs relating to land. ^[14]

The Full Federal Court also considered that Justice Wilcox did not give
enough regard to whether the Noongar people had observed their law and customs
‘generation by generation between sovereignty and the present
time’.^[15] They considered
that in deciding whether there had been continuity of observance, Justice Wilcox
should have considered whether ‘for each generation since sovereignty,
acknowledgment and observance of the Noongar laws and customs have continued
substantially
uninterrupted’.^[16]

As it has been stated in many native title reports, providing such evidence
generation by generation, while being subject to the strict rules of evidence,
is a herculean task for people of an oral culture with a history of
dispossession and generations of children that were removed from their parents.
It is also contrary to Australia’s human rights
obligations.^[17]

In his decision, Justice Wilcox was careful to follow the precedent on what
constitutes continuity, as set down by the High Court in Yorta Yorta.
Despite this, the Full Federal Court did not agree with the manner in which he
framed his application of the principles to the Noongar.

Although the Court considered that Justice Wilcox had focused on the
continuity of society rather than continued acknowledgement and observance of
laws and customs^[18], they went on
to consider Justice Wilcox’s discussion of those traditional laws and
customs. They then criticised Justice Wilcox for what they considered to be
giving little consideration, as required by Yorta Yorta, to the level of
adaptation and change that was
acceptable.^[19]

Finally, the Full Federal Court also criticised Justice Wilcox’s
failure to have regard to anthropologists’ evidence which could have
assisted him in considering whether there had been continuous observance of
traditional laws and customs.^[20]

(a) The effects of white settlement?

The law provides that native title does not require strict proof of
continuous acknowledgement and observation of traditional law and custom. In Yorta Yorta the High Court made it clear that there must not be substantial interruption of that observance, nor should there be too much
adaptation or change to the content of the law and
custom.^[21] That is, there is some,
albeit very limited, room for traditional laws and customs to have changed since
sovereignty and still be recognised by the law as it stands.

In the first Noongar decision, Justice Wilcox referred to the effects that
white settlement have had on the Noongar people and their traditional laws and
customs. However, as I noted above, he concluded that the modifications to
traditional law and custom that he observed were within the parameters of
acceptable change and
adaptation.^[22]

The Full Federal Court did not agree with this reasoning. It held that
Justice Wilcox had made too much allowance for the changes inflicted upon
Noongar society by European settlement. The Full Federal Court stated that
Justice Wilcox should have simply been examining whether the change meant that
the law or custom was no longer
traditional:^[23]

[A]cknowledging that the change from home areas to boodjas is a significant
change, his Honour says at [78] that the change is readily understandable
because it was forced on the Aboriginal people by white settlement. The reason
for such an important change is irrelevant: Yorta Yorta HC at
[89].^[24]

The Court considered that the law’s requirement that the continuous
acknowledgment and observance of traditional laws and customs be
‘substantially uninterrupted’ as opposed to
‘uninterrupted’ is the mechanism for taking in to account the impact
of European settlement on the community:

...But if, as would appear to be the case here, there has been a substantial
interruption, it is not to be mitigated by reference to white settlement. The
continuity enquiry does not involve consideration of why acknowledgment
and observance stopped. If this were not the case, a great many Aboriginal
societies would be entitled to claim native title rights even though their
current laws and customs are in no meaningful way traditional... In reaching
his conclusion that Noongar laws and customs of today are traditional, his
Honour’s reasoning was infected by an erroneous belief that the effects of
European settlement were to be taken in account – in the claimants’
favour – by way of mitigating the effect of
change.^[25]

I do not agree with what the court is implying. An Indigenous person who
revitalises their culture and practices their laws and customs is still
traditional, and also has the right to practice their culture, law and customs
and have those rights recognised, acknowledged and
protected.^[26]

However, this finding and the words of the Full Federal Court do not only
deny Indigenous peoples their rights, but it will limit any future judge’s
willingness to comment and give due recognition to the devastating impact of
colonisation on Australia’s Indigenous peoples. More concerning though, is
that it also encourages claimants to deny the catastrophic impacts that
colonisation and other white policies had on them and on their ancestors. At the
Native Title Conference in June 2008, Chief Judge Joe Williams, the Chief Judge
of the Maori Land Court put it as:

In Australia the surviving title approach to transitional justice requires
the Indigenous community to prove in a court or tribunal that colonisation
caused them no material injury. This is necessary because, the greater the
injury, the smaller the surviving bundle of rights. Communities who were forced
off their land lose it. Those whose traditions and languages were beaten out of
them at state sponsored mission schools lose all of the resources owned within
the matrix of that language and those traditions. This is a perverse result. In
reality, of course, colonisation was the greatest calamity in the history of
these people on this land. Surviving title asks aboriginal people to pretend
that it was not.^[27]

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2.3 Successful appeal ground 2 – Connection

The Full Federal Court also held that the Noongar claimants had not proven
connection to the Perth Metropolitan area specifically. The court held that
Justice Wilcox had erred by not inquiring into whether connection to that
particular area by the laws and customs had been substantially
maintained.^[28]

The Full Court noted Justice Wilcox’s assessment that, statistically, a
biological connection between some members of the wider Noongar community today
and the occupants of the Perth area at sovereignty was likely. It said that even
if that were correct, it did not show a present connection by those Noongar
people specifically to the Perth area.

The conclusion reached by the Court raises questions about how strategies for
running a native title case can be employed by governments and non-claimant
parties to contest a native title claim. In the Noongar case, the State had
initially suggested that the Single Noongar Claim be split in to two parts. This
decision shows that a ‘segmentation’ strategy by respondents to
whole of country native title claims may actually be rewarded by the kind of
reasoning adopted by the Full Federal Court in this case. That is, if there are
uneven levels of sub-group connection within a diverse claim area, a more
built-up area could be hived off from what would otherwise possibly be a
positive determination of native title. Yet again, this interpretation
privileges a technical and legalistic approach to assertions of country, over
holistic ones based in Indigenous cultural norms.

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2.4 The future of the Noongar peoples’
claim

The future of the Noongar peoples’ claim is uncertain. The Full Federal
Court refused to determine whether native title existed in the
area.^[29] The court remitted the
question of whether native title rights and interests exist over part A (the
Perth Metropolitan Area) to the docket judge, but left it to that judge to
decide whether to determine part A separately or whether to consolidate it with
a hearing over the remaining part
B.^[30]

At the time of the decision, Glen Kelly, the chief executive of the South
West Aboriginal Land and Sea Country (SWALC), the Native Title Representative
Body for the region, said ‘[w]hat this decision means is back to square
one, absolutely back to the beginning of proceedings’. But, he said, it
was not a loss for the Noongar people. ‘They didn't go so far as to make a
ruling that native title does not exist.’

SWALC Chairman Ted Hart said that while they were ready to negotiate with the
governments, the State's ‘very aggressive’ appeal had been insulting
to Noongar people. However, after appealing the decision rigorously, the Western
Australian government said that:

Native title agreements have the capacity to deliver much, much more if
together we can demonstrate the courage, persistence and flexibility to make now
big decisions with long term
implications.^[31]

And it has stated that it:

[Respects] the special relationship of Noongar people with land in the
South-West and we look forward to continuing our negotiations with them. With
this decision, we now have a clear and consistent understanding of the law, one
that will give both the Government and Noongar people a solid platform for
negotiations.’

The federal Attorney-General also signalled his
preference for negotiating an
outcome.^[32]

All parties have since agreed to meditate the claim. The mediation is limited
to part A of the claim, and the parties have agreed that part B will be
deferred. The parties will consider what areas of the claim will not be
considered (that is, over which the Noongar peoples’ rights have
effectively been extinguished) and negotiate the six underlying regional claims
asserted by the small distinct groups that form the single Noongar
population.^[33]

While the outcome of the negotiations may take many more years, there appears
to be increased and better engagement from all sides. The Western Australian
Government is taking an active part in the negotiations, with the Australian
Government and other respondents taking a minor
role:^[34]

[The Western Australian government and Noongar peoples] have endeavoured to
thaw what was previously a frosty relationship. ^[35]

Since this time, the Western Australian government has changed, and I hope
that the new government will approach the negotiations with a willingness and
commitment to achieving a just outcome.

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3. Western Australia v Sebastian – the Rubibi
appeal

During the year, the Yawuru peoples’ native title determination was
confirmed by the Full Federal
Court.^[36]

The State of Western Australia and a competing claimant appealed different
aspects of the first instance decision of Justice
Merkel^[37] that determined that the
Yawuru people held native title rights and interests over areas in and around
the Western Australian coastal town of Broome. The Full Federal Court upheld
Justice Merkel’s findings in relation to communal native title, but
overturned some of the findings on extinguishment, holding that there were more
extensive native title rights than Justice Merkel had found. The decision paves
the way for a slightly strengthened native title determination, amidst wider
negotiations between the State and Rubibi over native title, compensation and
heritage.

Although the Yawuru peoples were ultimately successful in having their native
title rights and interests recognised, the case has taken far longer than it
should have. Justice Merkel resolved the basic ‘native title issues’
in ‘interim’ judgments delivered in 2005 and 2006. Even earlier, in
2001, he determined the Yawuru to be the communal native title holders to
adjacent territory, an Aboriginal law ground on the outskirts of Broome. Yet
respondents continued to argue the native title issues on appeal. The fact that
the State has sought special leave from the High Court to re-agitate some
extinguishment issues again shows how litigious behaviour frustrates outcomes,
long after the ‘right people’ with whom to settle matters have been
identified. This approach is contrary to the less litigious approach that all
governments have now committed to.

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3.1 The case

The background to the case is complicated, with multiple Federal Court
decisions handed down since the application was made in early 1994. Some of the
earlier decisions dealt with preliminary issues, such as who was an appropriate
party to the litigation. Unusually, the judge’s final conclusions on the
native title application were spread across two ‘interim’ sets of
published reasons as well as the final judgment and determination delivered in
April 2006.

There were two competing native title groups in relation to the land and
waters in and around the township of Broome in Western Australia.

The first claim, referred to as the ‘Yawuru claim’, was made by
12 applicants on behalf of the Yawuru community. The claim area includes three
sub-areas: the Yawuru, the Walman Yawuru, and the Minyirr clans’ claim
areas.

The second competing claim, the ‘Walman Yawuru claim’ was made by
three applicants on behalf of a subset of the Yawuru community – being the
Walman Yawuru clan. The Walman Yawuru applicants were opposed to the assertion
of communal native title, arguing that native title in the area is clan-based
rather than communal.

Both of the claims were opposed by the State of Western Australia, the
Commonwealth, and the Western Australian Fishing Industry Council (WAFIC).

The Western Australian and federal governments argued ‘that neither
claim group could demonstrate that it possessed rights and interests in any land
or waters in the Yawuru claim area under a normative system of traditional laws
and customs which has had a continuous existence and vitality since
sovereignty’.^[38] They
disputed several aspects of the Yawuru claimants’ case, and argued that in
the northern portion of the claim area native title right and interests were
traditionally held by a separate society, the Djugan people.

On 28 April 2006, Justice Merkel made a native title determination in favour
of the Yawuru community.^[39] In that
decision, Justice Merkel found that the traditional laws and customs of the
Walman Yawuru claimants were the same as those of the Yawuru community.
Consequently, the Walman Yawuru claim was dismissed, with Justice Merkel finding
that they did not have separate native title rights and interests, but shared in
the communal native title as a sub-group of the Yawuru community.

All parties appealed different aspects of the decision, and the court heard
16 consolidated issues together. These were divided into issues which went to
the heart of the findings of native title rights and interests and those which
went to extinguishment.

The Full Federal Court dismissed the aspects of the appeal relating to the
content of the native title rights and interests. They clarified who held native
title, finding that it is held by the Yawuru claimants as communal native title
rights and interests in the whole of the claim area. They dismissed the appeal
of the Walman Yawuru, upholding Justice Merkel’s finding that they are a
sub-group of the Yawuru community, and do not have any separate native title
rights or interests in their capacity as clan members.

With regard to the aspects of the appeal dealing with extinguishment, the
Full Federal Court upheld some findings but agreed that Justice Merkel had erred
in respect of others. The net result was that native title had not been
extinguished in some areas Justice Merkel considered it had been.

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3.2 Content of native title rights and
interests

The State appealed (unsuccessfully) on several issues that have featured many
times before in Federal Court litigation. I offer three examples to illustrate
the point I wish to make.

First, the State argued that Justice Merkel was wrong to find that a Yawuru
individual’s entitlements as a native title holder could derive from the
mother’s side and not just the father’s side (that is, under a
cognatic system rather than a patrilineal one). The objection is that cognatic
systems in the contemporary era show a lack of continuity with the
pre-sovereignty era and that is sufficient to defeat a native title claim. It is
an objection that has been made in trials and appeals repeatedly by respondents
in recent years,^[40] and is mostly
unsuccessful, as it was here in the Rubibi case.

Secondly, the State objected in various ways to the characterisation of
Yawuru entitlements as a “communal” native title. As with other
cases where similar objections have been made (also
unsuccessfully),^[41] this was allied
to arguments that highlighted allegedly distinct sub-group identities. The
purpose of such arguments is to defeat the assertion of a communal native title
on behalf of a regional grouping.

Thirdly, respondents have attempted several times to argue that declaration
of a township is sufficient to defeat the beneficial operation of section 47B.
This section allows past extinguishment to be disregarded, but its effect is
nullified where the area is covered by a proclamation that “the area is to
be used for public purposes or for a particular purpose”. The argument
that declaring a township precludes reliance on section 47B has now been
rejected by a Full Court on at least three
occasions.^[42]

This repeated litigation of issues designed to thwart native title
recognition, despite several rebuffs at trial and appellate level, illustrates
the litigious mindset that has dominated native title in Australia.

I hope that the new flexible and less technical approach to native title that
each government has committed to will mean that we see a lot fewer of these
arduous and technical appeal grounds raised at every point of the determination.

(a) Descent system

Justice Merkel had found that while the descent system of the Yawuru
community was traditionally patrilineal, their traditional law and custom had
‘contingency provisions’, which allowed others to lawfully become
members of the group. He accepted that, by an evolutionary process, classical
patrilineal rules for landholding had melded with these contingency provisions
into a cognatic or ambilineal
system.^[43]

The Western Australian Government argued that the primary judge erred in this
finding. They argued that in fact the traditional law at the time of sovereignty
was always patrilineal descent and therefore the current system is proof of a
lack on continuity of traditional law and custom.

The Full Federal Court examined the evidence and dismissed this ground. In
doing so they upheld Justice Merkel’s finding that:

...whatever the precise structure and traditional definition of the Yawuru
people at sovereignty might have been, a change from a community similar to a
patrifileal clan-based community at or before sovereignty to a cognatic or
ambilineal based community is a change of a kind that was contemplated under the
‘contingency provisions’ of those traditional laws and
customs.^[44]

(b) Succession

The Full Federal Court upheld Justice Merkel’s primary finding that the
Djugan shared a common normative system with the Yawuru at sovereignty and that
the Djugan, heavily impacted by colonisation, had been absorbed into the wider
Yawuru community. The State also appealed against the primary judge’s
alternative finding on the issue. This was that if, on appeal, the Djugan were
shown not to be a sub-group of the Yawuru community at sovereignty, then any
rights and interests that the Djugan may have had in the northern area of the
claim area had passed to the Yawuru community in accordance with traditional
rules of succession.

Justice Merkel had considered that the evidence from the Yawuru elders showed
that principles of succession formed part of the traditions practiced in the
Yawuru claim area.

However, the State argued that, while the judgment in Yorta Yorta recognised rules for the transmission of native title rights, the comments were
directed to the intergenerational transmission of rights and interests within
the claim group – rather than between claim groups. The State argued that
‘succession is not an acceptable basis for a finding of native title in
circumstances where the purported succession of rights involves groups having
different normative systems at
sovereignty’^[45], and
disagreed that the evidence in the Rubibi trial supported succession
between tribes.

The Full Federal Court found that while the evidence on transmission rules
was slight, it was sufficient to sustain Justice Merkel’s conclusion. The
Full Court noted that there were only two practical possibilities: that the
Yawuru have ‘imperialistically’ taken over the Djugan areas or that,
in accordance with the common traditional laws and customs of the two clans, the
Yawuru have succeeded to the northern part of the Yawuru claim area over time,
as the Djugan have reduced in
numbers.^[46] The Full Court was
prepared to accept that the evidence existed to support the latter
conclusion.

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3.3 Extinguishment of native title rights and
interests

Various grounds of appeal also dealt with Justice Merkel’s findings
about where native title has been extinguished and how that had occurred.

Both applicants and respondents argued, for instance, that Justice Merkel had
incorrectly applied s 47B of the NTA. This section says that past extinguishment
can be ignored if, at the time of claim, the land is essentially unallocated and
unused except that it is ‘occupied’ by the native title
holders.^[47] Its net effect is that
recognition of ‘exclusive possession’ native title becomes a much
stronger possibility in the relevant area.

In relation to the extinguishment issues before the Full Federal Court, a
number of appeal grounds were dismissed, but some were successful. The Full
Federal Court overturned some of Justice Merkel’s findings:

• The Yawuru people had proven that they had occupied some small areas at
  Kennedy Hill, in and around Broome, at the time the native title application was
  lodged (enabling past extinguishment to be disregarded).
• Reserve 631 was not validly created because the purpose for its creation was
  too broad and it didn’t comply with the necessary regulatory requirements
  at the time it was created.
• The trial judge wrongly assumed that the Broome cemetery reserve had been
  vested in trustees, but the Western Australian government had not discharged the
  evidentiary onus to show this had actually occurred.

These findings
mean that native title may exist in some areas it was previously thought not to,
and that some native title rights may now be exclusive in areas where it was
previously thought to be non-exclusive.

The Western Australian government has sought leave to appeal to the High
Court in relation to the establishment of Reserve 631 for a public purpose and
the alleged vesting of the cemetery reserve in appointed
trustees.^[48]

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3.4 The future of the Yawuru peoples’
claim

In his first instance decision, Justice Merkel stated:

The determination of native title that is now able to be made brings to an
end an epic struggle by the Yawuru people to achieve recognition under
Australian law of their traditional connection to, and ownership of, their
country.^[49]

However this is unfortunately not the end, with the Western Australian
government effectively refusing to recognise the breadth and existence of the
Yawuru peoples’ rights. After the lengthy Full Federal Court appeal, the
WA government is seeking leave to appeal to the High Court. In the meantime, the
parties continue to negotiate over native title, heritage and compensation.

However the claim, which began over a decade ago, has proceeded through
various attempts at mediation, the majority of which have failed and so the
matter continues to come before the
courts.^[50] The parties have many
significant issues to grapple with, including finalising extinguishment issues
and considering liability to pay compensation or whether other remedies are
available.^[51]

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4 Griffiths v Minister for Lands, Planning and
Environment (Northern Territory)

On 15 May 2008, the High Court handed down the
Griffiths^[52] decision. The case was
an appeal by Alan Griffiths and William Gulwin on behalf of the Ngaliwurru and
Nungali peoples, the Traditional Owners and native title holders for land around
the town of Timber Creek in the Northern Territory (NT). The Traditional Owners
were challenging the Northern Territory government's power to compulsorily
acquire their native title rights and interests under the Lands Acquisition
Act 1989 (NT) (the LAA). The land was then going to be granted to private
third parties for their commercial use.

The High Court found that the legislative provision to acquire land
‘for any purpose
whatsoever’^[53], including
native title, provided the power for the Minister to acquire the land. In
exercising this power, the Minister legitimately extinguished the native title
rights and interests in the land under the Native Title Act. In effect, the
legal system had finally recognised the Ngaliwurru and Nungali peoples’
native title rights and interests, only to confirm that at any time they can be
taken away once again for the benefit of another person who wanted to use their
land.

The government of the Northern Territory changed during the case. The new
government changed the existing policy and decided not to proceed with the
acquisition. The case demonstrates the tenuous protection of the relevant native
title rights and interests under the law. Only the policy position of an
incumbent government saves them. It also raises a more significant question
about the extension of compulsory acquisition powers for the benefit of private
interests and the appropriate application of these powers to Indigenous land
rights.

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4.1 The case

The land around Timber Creek in the Northern Territory was vacant crown land
that had previously been subject to pastoral leases which had lapsed.

In 1997, a private individual applied under the Crown Lands Act 1989 (NT) (the CLA) to purchase one of the
Lots.^[54] Over the next few years,
the Northern Territory Minister for Lands, Planning and the Environment (the
Minister) considered the individual’s and subsequent other private
developers’ plans for the surrounding Lots.

The Minister issued notices proposing to acquire all the interests in the
land, including the native title rights and
interests.^[55] The government then
intended to grant the land as Crown leases to the private entities which had
submitted development plans. The notices were unsuccessfully appealed by the
Traditional Owners to the Northern Territory Lands and Mining Tribunal. They
then proceeded to the Supreme Court, which found in favour of the Traditional
Owners. The Northern Territory Government successfully appealed the Supreme
Court decision to the Court of Appeal, and the Traditional Owners sought leave
to appeal to the High Court.

During this time, the Traditional Owners lodged native title claims over the
area. Their native title was determined in August 2006 by the Federal Court who
recognised that ‘the Ngaliwurru and Nungali peoples had maintained their
long-standing connection with the Timber Creek district in spite of early
violent contact with European
settlers...’^[56] The Full
Federal Court later varied the native title determination in the Traditional
Owners’ favour, holding that they hold their native title rights and
interests exclusively.^[57]

The Traditional Owners, who held native title interests that were now
formally recognised, appealed to the High Court, challenging the Northern
Territory Government’s compulsory acquisition on two alternative
grounds:

1. That the compulsory acquisition of native title rights and interests only is not a valid extinguishment of native title under the Native Title
   Act. Section 24MD(2) of the NTA provides that extinguishment of native title by
   compulsory acquisition is only valid when all interests in the land are
   compulsorily acquired. They argued that the word ‘all’ requires that
   other, non-native title rights and interests must also be acquired; in this case
   there were no such interests, consequently the extinguishment was
   invalid.^[58]
2. That the LAA did not give the Minister the power to acquire land from one
   person to enable it to be sold or leased for the private use of
   another.^[59]

However,
Justice Kirby put the ultimate question before the court as being:

... the particular problem that is now before this Court, namely a suggested
deprivation and extinguishment of hard-won native title interests of
[I]ndigenous Australians for the immediate private gain of commercial interests
of other private interests, without needing the consent of the indigenous owners
and their satisfaction with the price to be paid for the peculiar value to them
of their native title interests.^[60]

In May 2008, the High Court handed down its decision allowing for the
acquisition and extinguishment of the native title rights and interests held by
the Ngaliwurru and Nungali peoples.

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4.2 Ground 1: Acquiring native title only, where
no other interests in the land exist

The High Court unanimously held that section 24MD of the Native Title Act
allows for compulsory acquisition that would result in the extinguishment of
native title when no other interests in the land exist, as well as when native
title rights co-exist with other
interests:^[61]

All of the judges agreed that ‘all’ should be understood as
‘any and all’. Any other reading, they suggest, would have an
arbitrary result. Gleeson CJ pointed out that the key purpose of the provision
of the NTA is to avoid racial
discrimination...^[62]

The Court indicated that it was artificial to interpret the power of
acquisition as confined only to situations where native title co-existed with
other interests in the acquired land.

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4.3 Ground 2: Acquiring land for the benefit of
a third party

When considering the extent of the powers given to the Minister under the Lands Acquisition Act, the court was split five judges to two. The
majority (Justices Gummow, Hayne, Heydon, with Chief Justice Gleeson and Justice
Crennan agreeing) held that the LAA allowed for the compulsory acquisition of
land, including native title rights and interests in that land, for any purpose
whatsoever. Justices Kirby and Kiefel gave separate dissenting judgements.

The majority examined section 43 of the LAA, which empowers the Minister to
compulsorily acquire land ‘for any purpose whatsoever’. They agreed
that, whether or not there were any ultimate limits on the broad phrasing of
section 43, the power at least includes acquisition ‘for the purpose of
enabling the exercise of powers conferred on the executive by another statute of
the territory’. In this case, section 9 of the Crown Lands Act provides that the Minister may grant estates in fee simple or lease Crown Land.

The case raised ‘a central question of the power of the Crown to
acquire the private rights of one citizen (or group of citizens) for the
immediate benefit of another private
citizen’.^[63] However, the
majority considered that the NT legislation rendered previous cases which
establish ‘a clear line of authority against local governments interfering
with the private title of A for the private benefit of
B’^[64] inapplicable.

However, the two dissenting judges considered that the LAA did not grant the
Minister the power to acquire land for the private benefit of a third party.

Justice Kiefel considered there must be read in to section 43(1) of the LAA a
requirement that the acquisition be for a public purpose. She considered this on
the basis of previous case law and the wording of the LAA. Specifically, she
considered that section 43 requires that the acquisition be for a purpose which
is connected with the Minister’s act of acquiring the land. That is, that
there should be a government purpose. In this case she found that:

It is abundantly clear that in the present case no use by the Minister or the
Territory is proposed...the exercise of the power stands as no more than a
clearing of native title interests in order to effect leases and grants of the
land for private purposes. ^[65]

Justice Kirby’s lengthy dissent took a holistic approach, considering a
number of key principles, including the importance of native title and its
position in the Australian legal system. He found that in order the government
to acquire private interests for the benefit of a private third party to be
valid under the LAA, it must be enabled by a specific and unambiguous provision
of the Act^[66] and that, unless such
an unambiguous provision exists, ‘the well-established principles of the
common law that are here invoked...on behalf of the Aboriginal native title
holders’, should be
upheld.^[67]

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4.4 Justice Kirby’s dissenting
judgment

Justice Kirby’s dissent should be examined carefully as it raises a
number of significant issues that the government and the broader public should
consider. In his dissent, Justice Kirby considered the interpretation of the LAA
through examining legal authority, legal principles and legal policy which
‘demand respect for the legal rights to property of private individuals in
Australia generally, and in particular the legal rights of Aboriginal
Australians...’^[68] He focused
on the general principle of common law which requires that legislation depriving
individuals of established legal rights must be clear and
unambiguous:^[69]

Insisting upon this interpretation of the LAA is not to be regarded as
denying the attainment of the constitutionally valid purposes of legislation,
enacted in concededly broad terms. Instead, it is a course adopted out of
respect for:

• the legislature's normal observance of great care in the deprivation of
  the basic rights of individuals, whoever they may be
• the special care to be attributed and expected (in light of history) to
  deprivation by a legislature of the native title rights of Aboriginal and other
  indigenous communities
• the serious offence which the opposite construction of the LAA does to
  common or hitherto universal features of legislative compulsory acquisition in
  our legal
  tradition.^[70]

He went
on to consider a number of other legal principles, including the exceptional
nature of any compulsory acquisition:

From the earliest days of compulsory acquisition legislation in England and
Australia, statutory provisions affording powers to governments or their
agencies to acquire the property interests of individuals have been interpreted
with considerable vigilance to protect those affected against abuse. ^[71]

He considered that this principle has greater significance when the
acquisition is being used to benefit or advantage another person’s private
interests. He referred to United States Supreme Court decisions which interpret
the Constitution as precluding the legislature from having the power to take
property off one person for the sole purpose of transferring it to another.
Justice Kirby also referred to British legal commentary that states:

[T]he assertion of a private form of eminent domain – the 'one-to-one
transfer of property' for private rather than public benefit – remains
anathema in most legal traditions. This is so even though the taking is coupled
with an offer of full monetary compensation. It seems wrong that the coercive
power of the state should be used to force an unconsented transfer from A to B
where the operation of the open market has failed to generate the required
bargain by means of normal arm's length
dealing.^[72]

Justice Kirby did not think that these common law presumptions had been
overridden by the general language of the LAA that allowed for acquisition
‘for any purpose whatsoever’:

Although a court's usual obligation is to give effect to the purpose of the
legislature derived from the statutory text, when important values appear to
have been overlooked, a court is entitled to conclude that apparently broad
language does not, in law, achieve departure from those values, without an
explicit indication to this effect in the
text.^[73]

Particularly relevant for this Report are Justice Kirby’s comments on
the application of these principles to native title. Justice Kirby recognised
that the general principles on the exceptionality of acquisition were even more
significant in this case because of the nature of the rights being acquired,
that is, because they were acquiring native title.

He considered that native title, which is not of the same origin or character
as other property interests is ‘more than an interest of an ordinary
kind’:^[74]

Thus a fundamental distinction between the acquisition of ordinary interests
in land and the existence of interests giving rise to native title in Australia
is the special spiritual relationship that exists between the native title
owners in the land...^[75]

He referred to the various High Court cases in Australia that had recognised
this special connection and relationship with the
land.^[76] Consequently, approaching
Indigenous interests in the land in the same way as approaching non-Indigenous
interests in land would be:

to miss the essential step reflected in the belated legal innovation
expressed in Mabo. That new legal principle accepted that the common law
of Australia would give recognition to native title without altering that title
or imposing on it all of the characteristics of other interests in land derived
from the different ... law of land tenures inherited by Australian law from
English law upon settlement.^[77]

To pretend that native title in the Northern Territory ‘is no more than
another interest in land ... would be to ignore both legal and social reality...
Importantly, it would needlessly involve a failure of our law to live up to the
promise of Mabo’:^[78]

Nevertheless, against the background of the history of previous
non-recognition; the subsequent respect accorded to native title by this Court
and by the Federal Parliament; and the incontestable importance of native title
to the cultural and economic advancement of indigenous people in Australia, it
is not unreasonable or legally unusual to expect that any deprivations and
extinguishment of native title, so hard won, will not occur under legislation of
any Australian legislature in the absence of provisions that are unambiguously
clear and such as to demonstrate plainly that the law in question has been
enacted by the lawmakers who have turned their particular attention to the type
of deprivation and extinguishment that is propounded. In Mabo Brennan J
cited authorities from Canada, the United States and New Zealand that support
the contention that ‘native title is not extinguished unless there be a
clear and plain intention to do
so’.^[79]

In conclusion, he found that if the legislature wants to modify or abolish
native title, it must expressly address that outcome in the
legislation.^[80] ‘In the
absence of such legislative particularity, any impugned law will be interpreted
protectively and construed in favour of Indigenous land
rights’:^[81]

Australian legislatures, on this subject, must be held accountable to the
pages of history. If they intend deprivation and extinguishment of native title
to occur, reversing unconsensually despite the long struggle for the legal
recognition of such rights, then they must provide for such an outcome in very
specific and clear legislation that unmistakably has that
effect.^[82]

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4.5 The outcome of the case – disposable
native title

Justice Kirby acknowledged the disappointing fact that had the private
individual not made the application to purchase the land (triggering the first
and then subsequent acquisition notices), then the ‘inference is
inescapable that the Ngaliwurru and Nungali peoples, living in and near Timber
Creek, would have continued to use the land in harmony with the activities of
the [private individual’s]
interests...’:^[83]

...Whether it was actually necessary, in order to procure the economic
benefits, to acquire the interests of the Ngaliwurru and Nungali peoples by
compulsion rather than by free negotiation in the open market, depriving them of
rights of entrepreneurship that would otherwise belong to them by reason of
their native title, is a matter of
speculation.^[84]

Yet this is the path that the Northern Territory government (at the time)
chose to take; easily disposing with Indigenous land rights without agreement or
discussion, as it suited them.

In the end however, after years of litigation and this High Court decision,
the Northern Territory government did not acquire the native title. This is
because in 2001 the Northern Territory voted in a new government, with a
different policy towards Indigenous land and native title. It is of course
positive that the government changed its tune; however, the protection of native
title and the respect for Indigenous land rights should not be left to the whim
of the Government of the day, but should be protected by law.

This issue is not unique to the Northern Territory but applies across the
country.

How native title is and can be acquired by governments differs in each state
and territory. Each jurisdiction has separate laws providing for the compulsory
acquisition of native title rights and interests and if relevant, the land
granted to Aboriginals or Torres Strait Islanders under land rights regimes.
These laws provide different procedural requirements for acquiring land,
including when and how to give notice, how and when agreements can try and be
reached and appeal procedures. They also differ in the reasons for which native
title, or any other property rights, can be acquired.

In his dissenting judgment in Griffiths, Justice Kirby outlined the sui
generis nature of native title, and the history of Indigenous land rights in
Australia as reasons why the acquisition of native title should be treated
differently to other interests in land. This approach is supported by the
international human rights framework. I recommend that governments pursue a
human rights based response which is consistent across state, territory and
federal legislation.

(a) A human rights
response

(i) The international human rights
framework

From as early as 1995 Aboriginal and Torres Strait Islander Social Justice
Commissioners have raised the human rights implications of a failure to
negotiate or gain the consent of Traditional Owners before their native title
rights are taken away once
again.^[85]

As the then Social Justice Commissioner, Mick Dodson, said in 1995,
international human rights standards require negotiation and consent before
interference with vested rights can legitimately occur. Interference with
property without even negotiating with the owner would interfere with property
in a manner contrary to Article 17 of the Universal Declaration of Human
Rights^[86]. Consistent with the International Convention on the Elimination of All Forms of Racial
Discrimination (the
CERD)^[87], Indigenous peoples
are entitled to enjoy our property rights free from
discrimination.^[88]

In general comment 23 to the Committee on the Elimination of All Forms of
Racial Discrimination specifically provides for this situation, calling on State
parties to:

... recognise and protect the rights of indigenous peoples to own, develop,
control and use their communal lands, territories and resources and, where they
have been deprived of their lands and territories traditionally owned or
otherwise inhabited or used without their free and informed consent, to take
steps to return these lands and
territories...^[89]

The Committee also recommends that states:

Ensure that ... no decisions directly relating to [Indigenous peoples’]
rights and interests are taken without their informed
consent.^[90]

The specific rights of Indigenous peoples with regards to their land have
been further entrenched in the Declaration on the Rights of Indigenous Peoples.
Article 28 requires that Indigenous peoples give their free, prior and informed
consent before the approval of any project affecting our lands.

In the Native Title Report 1997, the compulsory acquisition of native
title for the benefit of third parties was discussed in light of the Wik 10
point plan.^[91] The original NTA
passed by Parliament provided for negotiation between the government, the
registered native title party and other stakeholders in relation to any
compulsory acquisition. Part of the Wik 10 point plan amendments, was to remove
the right to negotiate for the acquisition of native title for the benefit of
third party private interests when the land involved is inside a town or
city.^[92] The amended Act reduced
the right to negotiate to a much lesser procedural right to
object.^[93] In the Native Title
Report 1997, the Social Justice Commissioner Mick Dodson raised concerns
that state or territory legislation (none of which provided for acquisition for
the benefit of a third party interest at this stage) would be amended to allow
acquisitions for private purposes. Even though any such amendments would have to
apply to all land in the jurisdiction to avoid breaching the Racial
Discrimination Act 1975, Dodson considered that introducing state or
territory laws with such powers in response to the Wik amendments, and therefore
primarily for the purpose of acquiring native title, would in fact be
discriminatory.

In the same year, the Lands Acquisition Act was amended. Although the
compulsory acquisition power was already broadly worded, stating that ‘the
Minister may, under this Act, acquire land’, it was amended in 1998 to
include the words ‘for any purpose whatsoever’. After this point,
the Northern Territory government has issued 82 compulsory acquisition notices,
and on every occasion the land was claimed or claimable by Aboriginal
people.^[94] Dozens of these have
been town lands, and were therefore acquired without a right to negotiate the
acquisition.^[95]

(ii) Consent as a traditional law and custom

The Native Title Act attempts to translate Aboriginal and Torres Strait
Islanders’ traditional laws and customs into a form of western legal
property right. In doing so, it unwittingly destroys many of the sui
generis characteristics of the very laws and customs it was apparently
designed to recognise and protect. One of these characteristics is the notion of
controlling access to and activities on traditional estates, which is a
consistent feature of Indigenous law. It is ‘what a Pitjantjatjara man
once defined as “the first law of Aboriginal morality – always
ask”’.^[96]

The cultural underpinning of a right to negotiate was presented in the
evidence in the Croker Island
case.^[97] In that case Mary Yarmirr
stated that the members of a Yuwurrumu (an estate group) had the right to make
decisions about all aspects of the estate including a right to be asked and to
apply conditions to entry:

In respect of my law and my culture, as I have respect for another culture,
I’d ask them to come towards us and ask permission.

Q: All right. And if they ask permission, what rights would you have by your
law in the way that you responded to their request?

A: As a yuwurrumu holder I would then sit down and negotiate and come to a
settlement.

Q: Would you be able to say by your law ‘No’ to
them?

A: Yes I have done that on numerous occasions.

Q: In respect of
what?

A: In respect to oil exploration at Summerville Bay.

Q: So there
have been requests for oil exploration at Summerville Bay?

A: That is
correct.

Q: And what has happened on these occasions?

A: On those occasions, because they identify where they like to explore and
it was on some of our sacred areas, we said to them due to respecting our old
traditional laws and our culture we’d ask you to reconsider, maybe looking
at another to avoid those sacred areas, which they did.

Q: All right. If the area was a suitable area as far as your yuwurrumu was
concerned would you have the right to say not ‘no’ but
‘yes’?

A: Yes.

Q: And you have spoken [of] negotiation. Would you have the right to
say yes but subject to conditions?

A: That’s correct.

There is no doubt in Mary Yarmirr’s mind that according to her
yuwurrumu there was a right in her people to control entry onto their seas and
to apply conditions to that
entry.^[98]

This right was even recognised in the Griffiths native title decision. In the
native title determination for the Ngaliwurru and Nungali
peoples^[99], the Full Federal Court
found that the Traditional Owners held their native title rights and interests
exclusively because of the evidence presented about their control of the land:

The indigenous witnesses designated as ‘yakpalimululu’, someone
who would deny others access to certain foraging areas...If a white person
wished to go on the land that person would be expected to ask permission first.
The purpose of the request would be to enable important sites to be identified
presumably so that they might be
protected.^[100]

When the Native Title Act was first passed by Parliament, there was some
protection from compulsory acquisition through a right to negotiate. This
protection was considered by many to have had its origins in traditional law and
custom. It has been said by previous Social Justice Commissioners that the right
to negotiate provisions (as they were originally enacted) were not a
‘windfall accretion’ or gift of government, but an intrinsic
component of native title to the
land.^[101]

The control of entry to land is not an ‘add on’; it is
fundamental to the protection and maintenance of country:

Ownership of country and knowledge is manifested through rights to be asked.
While Aboriginal people rarely say ‘no’, provided that the request
is in keeping with what is appropriate for a given place or use, they insist
upon the right to be asked, and hence upon their right to say either
‘yes’ or
‘no’.^[102]

As was pointed out in the Native Title Report 1996, Justice Woodward
recognised this in his report, which led to the enactment of the Northern
Territory’s land rights regime, when he said that to deny Aboriginal
owners the power to control access and activities on their land was ‘to
deny the reality of their land rights under traditional
law’.^[103]

The fact that the right to control access is an intrinsic right of native
title has been forgotten as the procedural rights attached to native title have
been amended or removed. Now native title rights are considered to be in the
most precarious position of all Australian property rights.

(iii) Protection of native title rights

Native title is not simply another property right, but is sui generis in character, and should be protected in unique ways to recognise this. It
is not good enough for governments to disregard native title, compulsorily
acquiring it and extinguishing it as it sees fit, sometimes using the poor
justification that it could possibly do the same to other property interests in
land:

It is misconceived to look to the title-rights of another genus of title and
to use those rights as a benchmark of equal treatment where detriment results.
This approach ignores the substantive difference in the source and character of
a sui generis title. It fails to provide substantive equality of
protection to native
title.^[104]

Similarly, it is not good enough for governments to simply have a policy of
acquiring native title rights as a last
resort.^[105] Native title rights
and interests and other Indigenous land rights require greater protection by
law.

The Native Title Report 1998 included a discussion on the right to
negotiate, rebutting the argument that it would be unfair if native title
holders had a right to negotiate in relation to certain compulsory acquisitions
while other holders of property rights do not:

[where] you have a situation where other Australians are sharing the land, we
do believe— and we hold this view from the basis of a fundamental
philosophical position— that procedural rights should be the
same.^[106]

The arguments for distinct protection of Indigenous land rights that were put
forward in the Native Title Report 1998, the Native Title Report
1996 and Justice Kirby in his dissent in the Griffiths decision, all
apply:^[107]

This notion of equal protection, accorded through holding exactly the same
procedural rights as others, determinedly sets its face against the fact that
the titles of others do not derive their nature and incidents from Indigenous
law. The right to control and mediate access to traditional estates is not some
sterile right of prohibition. It is integral to our manifold traditional rights
and obligations to land which embrace social, cultural and spiritual life, as
well as access to resources.^[108]

Differentiation is integral to the rights and freedoms which the human rights
system seeks to protect. Two categories of non-discriminatory differentiation
protected within a human rights framework are the right to express one’s
cultural identity, referred to variously as minority rights or cultural
rights^[109], and the provision of
measures by governments to facilitate the advancement of members of certain
racial groups who historically have been disadvantaged by discriminatory
policies.^[110] This latter
category is commonly referred to as special measures – a principle which
has been applied to both native title rights and interests and other Indigenous
land rights.^[111] Both the
recognition and protection of distinct cultural rights, and special measures,
are justified by their objective of ensuring the genuine, substantive enjoyment
of common human rights.

The very concept of rights to culture in international human rights
instruments recognises that people enjoy their rights in a culturally specific
way. A classic example of a human right which is culturally specific and
non-discriminatory is native title. The failure to recognise native title before
the Mabo decision in 1992 can be seen, as it was in that case, as the failure to
give equal respect and dignity to the cultural identity of Aboriginal and Torres
Strait Islander peoples; to be racially discriminatory; and a violation of
Aboriginal and Torres Strait Islander people’s human rights:

Whatever the justification advanced in earlier days for refusing to recognise
the rights and interests in land of the indigenous inhabitants of settled
colonies, an unjust and discriminatory doctrine of that kind can no longer be
accepted. The expectations of the international community accord in this respect
with the contemporary values of the Australian people. The opening up of
international remedies to individuals pursuant to Australia’s accession to
the Optional Protocol to the International Covenant on Civil and Political
Rights brings to bear on the common law the powerful influence of the Covenant
and the international standards it imports. The common law does not necessarily
conform with international law, but international law is a legitimate and
important influence on the development of the common law, especially when
international law declares the existence of universal human rights. A common law
doctrine founded on unjust discrimination in the enjoyment of civil and
political rights demands reconsideration. It is contrary both to international
standards and to fundamental values of our common law to entrench a
discriminatory rule which, because of the supposed position on the scale of
social organisation of indigenous inhabitants of a settled colony, denies them a
right to occupy their traditional lands.

The Human Rights Committee has commented that article 27 of the International
Convention on Civil and Political Rights (which encompasses Indigenous
peoples’ right to culture) requires the following:

...article 27 relates to rights whose protection imposes specific obligations
on States parties. The protection of these rights is directed to ensure the
survival and continued development of the cultural, religious and social
identity of the minorities concerned, thus enriching the fabric of society as a
whole... States parties, therefore, have an obligation to ensure that the
exercise of these rights is fully protected.

As I have established, the right to give permission and consent is an
expression of cultural rights by Indigenous peoples across Australia.

In order to achieve an outcome that is consistent with Australia’s
human rights obligations, I recommend that the Attorney-General pursue a
consistent legislative protection of the rights to give consent and permission.
A best practice model would be to legislatively protect the right of native
title holders to give their consent to any proposed acquisition.

A second best option would be to reinstate the right to negotiate for all
compulsory acquisitions of native title, including those that take place in a
town or city. That is, amend section 26 of the Native Title Act.

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5 Blue Mud Bay – Northern Territory v Arnhem
Land Aboriginal Land Trust

In my Native Title Report 2007, I summarised the Full Federal Court
decision in Blue Mud Bay.^[115] In
that case, the court held that the Traditional Owners of Aboriginal land granted
under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) have
the right to control access to, and use of, the tidal areas that are part
of their land. The Northern Territory Government and others appealed the
decision to the High Court.

On 30 July 2008, the High Court held that the Fisheries Act (NT) did
not authorise or permit entry for fishing on Aboriginal
land.^[116] The result is that in
order to fish in intertidal waters (both coastline and river mouths) on
Aboriginal land, an outsider needs the permission of the Traditional
Owners^[117].

The case, which applies to all Northern Territory Aboriginal
land^[118], starkly contrasts with
recent native title cases which have shown the extraordinarily difficult process
that each claimant group must go through to have any native title right and
interest recognised, let alone a right or interest which allows the claimants to
control the use of and access to their land or waters.

However the case was not easily won. Djambawa Marawilli, one of the
Traditional Owners said:

Our struggle was almost for 20 years. Now we had this right now. We had
rights since 2000 years ago. Today it's been given to us in the eyes of most
Australian people.^[119]

That struggle was finally won and the Blue Mud Bay case, applying to 80% of
the coastline in the Northern Territory, is the most significant land rights
case in Australia for many years. It will have broader implications however, and
will pressure other governments to similarly realise the rights of their
Indigenous populations.

The Blue Mud Bay decision from the High Court stands as one of the most
significant affirmations of Indigenous legal rights in recent Australian history
... The High Court’s decision gives Australia the opportunity, belatedly,
to catch up with Canada and New Zealand in building co-operative structures
between government, business and Indigenous peoples in commercial
fisheries...^[120]

I congratulate the Traditional Owners and the Northern Land Council for their
dedication over the past decades to have the Australian legal system recognise
rights that they always knew were theirs.

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5.1 The case

In 1980 the Governor-General, under the Aboriginal Land Rights (Northern
Territory) Act 1976 (Cth) (the ALRA), granted two areas of land to the
Arnhem Land Aboriginal Land
Trust.^[121] The land is
inalienable freehold which is held by the land trust for the benefit of the
Traditional Owners. The land grants cover areas on the mainland and islands, and
all grants extend to the low water
mark.^[122]

The Traditional Owners of the land, which covers part of North East Arnhem
Land including Blue Mud Bay, sought to clarify whether the Northern Territory Fisheries Act meant that the Northern Territory Government had the power
to grant another person a licence to fish in waters that were within the
boundaries of Aboriginal land. The High Court considered the central issue:

[as] whether, without permission from the Land Trust, a person holding a
licence under the Fisheries Act can fish in the intertidal zone within the
boundaries of either the Mainland Grant or the Islands Grant, or in the tidal
waters within those boundaries. ^[123]

The main joint judgment considered the following.

1. Does the common law public right to fish apply? The court took note of
   earlier High Court authority that because the ‘common law right of fishing
   in the sea and in tidal navigable rivers is “a public not a proprietary
   right, [it] is freely amenable to abrogation or regulation by a competent
   legislature”’^[124]. On
   this basis, the court looked to the Fisheries Act to see whether that
   common law right had been abrogated and found that it
   had.^[125]
2. Does the Fisheries Act provide that a person may enter and fish in
   waters that lie within Aboriginal land? The court found that ‘[n]either
   the licence itself nor any provision of the Fisheries Act confers any
   permission upon the holder to enter any particular place or area for the purpose
   of fishing...the Fisheries Act does not deal with where persons may fish.
   Rather, the Fisheries Act provides for where persons may not fish.’^[126]
3. Does the ALRA, and the grants made under it, permit the Land Trust to
   exclude persons who hold a licence under the Fisheries Act from entering
   waters that lie within the boundaries of the
   grants?^[127] The court found that
   the grants made under the ALRA relate to defined geographical areas (as opposed
   to only the dry land or soil within those areas). The provisions of the ALRA
   that allow the Land Trust to control entry apply to the whole area within those
   boundaries and those boundaries extend to the low water mark. They
   considered:

   The asserted distinction between dry land and the land
   in the intertidal zone when covered by water should not be drawn. ^[128]

In conclusion, the court ordered that:

Sections 10 and 11 of the Fisheries Act (NT) do not confer on the
Director of Fisheries (NT) a power to grant a licence under that Act which
licence would, without more, authorise or permit the holder to enter and take
fish or aquatic life from areas within the boundary lines described in the ...
grant made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).^[129]

The result is that in order to fish in an area within Aboriginal land,
permission must be given by a Land Council to enter and remain on the
land.^[130]

Justice Kirby generally agreed with the joint reasons, but he gave a separate
judgment in which he discussed many of the principles of statutory
interpretation which supported his reasoning in Griffiths (see above).
Once again he highlighted his preference for a consistent approach to Indigenous
peoples’ traditional rights that operates on the premise that they can not
be taken away without clear and express authority. He supported the joint
decision because it is consistent with other principles he thinks applied.
Namely, that:

• It preserves the Aboriginal interests concerned as a species of valuable
  property rights not to be taken away without the authority of a law clearly
  intended to have that effect.
• It does this against the background of the particular place that such
  Aboriginal rights now enjoy, having regard to their unique character as legally sui generis, their history, their belated recognition, their
  present purposes and the moral foundation...for respecting them.
• It ensures that, if the legislature of the Northern Territory wishes to
  qualify, diminish or abolish such legal interests it must do so clearly and
  expressly, and thereby assume full electoral and historical accountability for
  any such provision...^[131]

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5.2 The impact of the National
Apology

A significant element of Justice Kirby’s judgment was his consideration
of the National Apology^[132] and
its impact on legislative interpretation. Reflecting on the Apology, he
considered it appropriate for the High Court ‘to take judicial
notice’ of it:

The Court does not operate in an ivory tower. The National Apology
acknowledges once again, as the preamble to the Native Title Act 1993
(Cth) already did, the wrongs done in earlier times to the indigenous peoples of
Australia, including by the law of this country. Those wrongs included the
non-consensual denial and deprivation of basic legal rights which Australian law
would otherwise protect and uphold for other persons in the Commonwealth. In the
case of traditional Aboriginals, these right included rights to the peaceful
enjoyment of their traditional lands and to navigate and to fish as their
ancestors had done for aeons before British sovereignty and
settlement.^[133]

Justice Kirby acknowledged that although the National Apology had bipartisan
support and ‘reflects an unusual and virtually unprecedented parliamentary
initiative, it does not, as such, have normative legal operation...Yet it is not
legally irrelevant to the task presently in hand. It constitutes part of the
factual matrix or background against which the legislation in issue in this
appeal should now be considered and interpreted. It is an element of the social
context in which such laws are to be understood and applied, where that is
relevant. Honeyed words, empty of any practical consequences, reflect neither
the language, the purpose nor the spirit of the National
Apology.’^[134]

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5.3 The future of fishing in the NT

The decision affects all coastline in the Northern Territory that is part of
Aboriginal land granted under the ALRA. In total Aboriginal land constitutes
over 80 percent of the coastline of the Northern Territory. Most of the
remaining percent of the coastline is subject to an Aboriginal land claim, some
of which has already been heard and recommended for
grant.^[135] I hope that the
decision in this case does not affect the granting of the remaining land back to
its Traditional Owners.

On a practical level the case has implications for all those who seek to
access and use the intertidal zone.

For the past year, between the Full Federal Court and the High Court
decisions, the Northern Land Council, which represents the Traditional Owners in
the case, has been issuing free permits to commercial fishermen to use the
inter-tidal zone. The Council has continued to issue temporary permits while
they negotiate a long term
system.^[136] Those negotiations
are now taking place between the Traditional Owners of all the Aboriginal land
on the coastline, the government and the fishing
industry.^[137] But with the High
Court’s findings, the Traditional Owners participate in the negotiations
from a position of great strength.

The Traditional Owners have indicated that they will negotiate:

[The] Land Council has indicated that they will be looking to negotiate an
outcome that will be workable for Aboriginal people, for recreational fishers
and for commercial fishing interests. But the reality is that they if you like,
Indigenous people, hold all the power and the levers in these negotiations and
that's what's fundamentally different; and that's the significance of this
case.^[138]

As Ms Watson, an Indigenous lawyer has commented:

If it’s [the Traditional Owner’s] wish to negotiate so be it.
Personally, I think there’s a lot of bravery in that approach as well...
sitting down at the negotiating table with people who have a history of not
respecting your rights. I think that’s brave and it demonstrates a lot of
foresight. They’re not only thinking of themselves, but of their
children...^[139]

The outcome of these negotiations will have significant implications for the
Traditional Owners, who have identified a number of different benefits that can
be achieved through their newly recognised rights.

(a) Potential economic benefits

The intertidal zone is economically significant, being home to Barramundi,
Mud Crab and Trepang (otherwise known as Beche-de-mer). All up, the value
of these industries is in the hundreds of millions of dollars per year.

Djambawa Marawilli, a traditional owner involved in the case, says the
decision opens up money-making opportunities for Indigenous people. ‘It
can be like crabbing, fishing and other economic things in the sea,’ he
said. ‘This is the time to talk with each other now, this is the time for
the Government and the balanda [non-Aboriginal people] to talk and make real
smooth process to plan for the
future.’^[140]

[The case is an] extraordinarily significant outcome for Indigenous people
because it gives them, effectively a commercially valuable property right which
is really unprecedented in the Australian
context.^[141]

(b) Controlling access

The decision also ensures that Traditional Owners have the ultimate control
over their country. They can determine who enters all of their land and waters
and what they do there. As I discussed in detail above, control of the land is a
traditional law and custom of many Indigenous Australians, and in this case was
one of the reasons the Traditional Owners instigated the case in the first
place.^[142]

That is not to say that the Traditional Owners will exclude the hundreds of
commercial operators and tens of thousands of recreational fisherman in the
region.^[143] Aboriginal leaders
have pledged to negotiate in good faith with the government and fishermen.

The country is for everybody, the sea and the land,’ Yolngu leader
Djambawa Marawilla said yesterday. ‘Fishermen, they are allowed to come to
fish around in our country but through the permit and through the right
communication.^[144]

Recognising this, the chairman of the Northern Territory Seafood Council Rob
Fish, voiced his confidence about the
negotiations^[145], a sentiment
echoed by the Prime Minister, Kevin
Rudd.^[146]

(c) Looking after country

In previous native title reports I have emphasised the importance that
looking after country has for the health and wellbeing of Aboriginal and Torres
Strait Islanders. This decision will allow the Traditional Owners the power to
look after their sea country:

Robert Browne, a senior Larrakia man, said the High Court judgment would mean
rangers such as Danny Raymond and Keith Sailor could do more to look after their
traditional lands and
sea.^[147]

Finally, now that the case is completed, the Traditional Owners will have to
consider one further question. Will the Traditional Owners decide to claim
compensation for the 30 years of commercial and recreational fishing on
Aboriginal land?

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5.4 Implications of the case on native title and
other land rights regimes

Strictly speaking, the Blue Mud Bay case only applies to Northern Territory
Aboriginal land granted under the ALRA, and has no application to native title
or other states’ land rights regimes. However, the decision of the High
Court may have moral or political suasion for future native title claims or
claims for commercial rights over the sea:

...I think morally other Aboriginal people would now be able to argue that if
these sorts of rights are being provided to Aboriginal people in the Northern
Territory, they should be extended elsewhere... And given that the overarching
aim of government policy is to close the gap between Indigenous and other
Australians, a number of commentators including myself have said that this can
only happen if you also provide Indigenous people with the commercially valuable
property rights that they have historically missed out on in
Australia.^[148]

Sean Brennan, a senior law lecturer, also considers this to be a new
opportunity for all Indigenous land rights, including native title:

The broader policy answer is that it’s a great opportunity for a new
government which says it wants to take a more flexible and less litigious
approach to native title and land issues, to do exactly that. To date, off-shore
native title claims have not progressed very far in the courts, or in
mediation.^[149]

We may not need to wait long to see whether this case, or the
Government’s new approach to native title will have any impact. The native
title sea claim over the Torres Strait, which is being heard by the Federal
Court in late 2008, may be influenced by the decision:

...the decision...has given heart to Torres Strait Islanders embroiled in a
long-running claim for control of the vital seaway between the northernmost tip
of Australia and Papua New Guinea...Torres Strait Islanders are already
investigating the implications of the Blue Mud Bay ruling for their own
long-running regional sea claim...They now hope the ruling will help their
claim, vastly more complex because of issues involving the law of the sea, a
boundary treaty with PNG, and Queensland
law.^[150]

The strong and unequivocal protection of rights that was recognised in the
Blue Mud Bay decision stands in stark contrast to the native title decisions of
the courts over the last few years.

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6 Conclusion

A change of government and a commitment to a new approach to native title (as
detailed in chapter 1 of this Report) offer important opportunities. To avoid
another round of disappointed hopes and expectations, this impetus needs to be
converted into tangible change in the short and medium term. There are two
levels on which the Commonwealth can work with Indigenous organisations and
other key participants in the system in order to restore a greater sense of
justice for Indigenous peoples in the native title system:

• policy and administration
• the law of native title.

I have discussed in this Report and
others ways in which Commonwealth policy leadership can improve the fairness and
quality of the native title system. Above all else, it is the main financier of
a system that consumes hundreds of millions of dollars. The Commonwealth
initiates national policy objectives in health, education, competition reform
and many other fields of social and economic policy using the power of the
purse-strings. It must use this power, and all other persuasive tools at its
disposal, to convert the welcome rhetoric of all governments at the Native Title
Ministers Meeting in July 2008, into action. For example, for many years the
Commonwealth has notionally allocated compensation funds to meet State and
Territory liabilities. Given the complete absence of formal compensation
determinations there must surely have been a build-up of funds which could be
sensibly reallocated from past projected compensation to creative forms of
recognition in the present day.

A primary focus for potential legal reform lies in the area of proving native
title. The appeal decisions affecting the Larrakia in
2007^[151] and the Noongar
in 2008 show that the law about continuity of traditional connection needs to be
brought back into line with the overall logic of Mabo. Justice Brennan in Mabo focused on the ‘general nature of the connection between the
indigenous people and the land’ and the need for connection to be
‘substantially maintained’. The High Court in Yorta Yorta embarked on an analysis of continuity that has been widely criticised for
its abstraction from the realities of how cultures continue to grow and develop
and the realities of Australian history. Their test of continuity set a very
high bar for native title claimants. A few Full Federal Court decisions since Yorta Yorta in 2002 have shown some latitude exists, to recognise the
impacts of colonisation. But the cases of the Larrakia and the Noongar
demonstrate that strong vibrant contemporary Indigenous communities with strong
roots in the pre-colonial past may be deemed insufficiently
‘traditional’ to qualify for native title recognition.

While further legislative intervention at this point into an already
complicated legal regime is not straightforward, the Commonwealth Parliament
must consider ways of realigning the proof of native title with the original
ethos of Mabo.

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6.1 Section 223

As the dust on native title has settled in recent years, commentators who
have intimate knowledge of the system are becoming increasingly vocal about
their concerns that the system is unjust, cruel, disappointing and even
dangerous.^[152]

The perversity lies in the reality that after two hundred years of valiantly
and defiantly withstanding waves of colonisation the legislation that delivered
some hope might in fact be the tsunami that dashes all
hope.^[153]

The section that is identified as the major source of these problems is
section 223 of the NTA – the definition of native title. As I highlighted
in the Native Title Report 2007, the interpretation of section 223
clearly breaches Australia’s human rights
obligations.^[154] The United
Nations Human Rights Committee and the Committee on the Elimination of Racial
Discrimination have both confirmed this in their comments on
Australia.^[155] Given the lack of
significant progress or change to native title in recent years, I suspect these
bodies will once again report that Australia has breached its international
human rights obligations in their upcoming comments on Australia’s member
reports to the Human Rights Committee and the Committee on the Elimination of
Racial Discrimination.

The practical impact of section 223 on communities is tangible. Its
interpretation by the courts has resulted in more than one occasion where a
court has recognised that the people who are before them are the same people who
occupied the land at sovereignty, yet their native title rights were denied
because they couldn’t prove continuity under section
223.^[156] As Justice Wilcox
said:

Here’s the government of the country and Parliament passing statutes
which seem to promise so much and yet when the claim is brought they just
can’t get there and then they get nothing, not even
recognition.^[157]

Section 223 requires the native title claimants prove continuous observance
and acknowledgement of traditional laws and customs since the date of
sovereignty. Chief Justice French has summarised it as requiring the following:

Determination of the existence of traditional laws and customs requires more
than a determination of behaviour patterns. They must derive from some norms or
a normative system. Because there is a requirement that the rights and interests
be recognised at common law, the relevant normative system must have had
‘a continuous existence and vitality since sovereignty’. A breach or
interregnum in its existence causes the rights or interest derived from it to
cease beyond revival. It is on this point in particular that great difficulty
can arise. These requirements impose the burden of determining continuity of
existence of their native title rights and interests upon the applicants at
least by inference or extrapolation from various kinds of evidence... If by
accident of history and the pressure of colonisation there has been dispersal of
a society and an interruption of its observance of traditional law and custom,
then the most sincere attempts at the reconstruction of that society and the
revival of its law and custom seem to be of no
avail.^[158]

The burden of this task, for a culture that has been subject to a history
such as ours, is virtually impossible. As Justice Wilcox said there is
‘absolutely no question that proving continuity as the main barrier to
native title.’^[159]

We have come to a time where fixing the dysfunctional operation of section
223 must be tackled head on by government. Even the Chief Justice of the High
Court of Australia has implied that this problem requires legislative
amendment:

...In the absence of a national land rights statute, the rules for the
determination and definition of native title rights set out in the [Native
Title] Act cannot seem to shake off the logistical difficulties imposed by the
requirement for proof of
connection.^[160]

What these amendments entail should be determined in consultation with
Indigenous people, however many suggestions have already been put forward from a
variety of stakeholders.^[161]

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6.2 Presumption of continuity

As I have outlined in this chapter and in previous native title reports, the
burden of proving continuity is too great. The requirement that the Indigenous
claimants prove that ‘each successive generation’ has acknowledged
and observed laws and customs from sovereignty until
today^[162], is extraordinarily
difficult, even if the court can make inferences about the content of the law
and customs at earlier times.^[163] It is unjust to impose such an obligation on our Indigenous peoples who were the
innocent subjects of colonisation and various subsequent policies which continue
to have devastating impacts on communities.

As a result, a number of people have considered whether:

...statutory changes to s223 would help considerably. Presumptions of
continuity would be a good
start.^[164]

The Queensland government has similarly suggested to me that the Attorney
could consider ‘amending the requirements in the [NTA], as they are
interpreted, for the need to establish continuity of connection for there to be
a finding of native title. This could also consider, for example, whether a
rebuttable presumption in favour of continuity of connection would
assist...’.^[165]

A presumption of continuity would require more than the non-claimant party
simply being able to throw doubt on the case made by the claimants, but that the
non-claimant would have to prove, on the balance of probabilities, that there
has been a ‘substantial interruption’ to the observance of law and
custom by the claimants.

Depending on the policies that the Traditional Owners of the land had been
subject to over the past 200 years, such a presumption could, at times, be
reasonably easily disproven. Consequently, a presumption of continuity would not
do away with any other reforms that are necessary to ensure the native title
system operates fairly and justly. However, it could modestly reduce the onerous
burden of proof on the applicants and could have a substantive impact in some
cases.

Finally, it should be noted that although such a change in the law would
raise a number of difficult questions in itself, including what will give rise
to the application of a presumption, I do consider that the benefits would be
such that it is worthy of serious consideration by the Attorney-General.

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6.3 Capacity of the court to take into account
reasons for change

Another issue that has arisen in the cases this year, and that I commented on
in last year’s native title report as well, is the court’s
consideration for the reasons for an interruption in the continuity of
observance of traditional law and custom. The court in Yorta Yorta stated
that:

But the inquiry about continuity of acknowledgement and observance does not
require consideration of why, if acknowledgement and observance stopped, that
happened.^[166]

This rule is applied strictly. For example in the Noongar appeal discussed
above, Justice Wilcox’s reflections on the effects of white settlement
were commented on by the Full Federal Court as being substantially irrelevant.

However, although the law considers the reasons for interruption in
continuity to be irrelevant, those reasons are not irrelevant to the impact and
outcomes that the native title system achieves today, nor to the Indigenous
people who were subject to decades of policies which were aimed at destroying
their culture.

The law today is also inconsistent with the Australian Government’s
approach to reconciliation and partnership with the Indigenous population. The
new Government started its term with a National Apology to the Stolen
Generations, an act that acknowledged the impact of previous Government policies
on Indigenous peoples today.

In the Apology, the Prime Minister stated:

... We apologise for the laws and policies of successive Parliaments and
governments that have inflicted profound grief, suffering and loss on these our
fellow Australians.

We apologise especially for the removal of Aboriginal and Torres Strait
Islander children from their families, their communities and their country.

And for the indignity and degradation thus inflicted on a proud people and a
proud culture, we say sorry. We the Parliament of Australia respectfully request
that this apology be received in the spirit in which it is offered as part of
the healing of the nation.

...

We today take this first step by acknowledging the past and laying claim to a
future that embraces all Australians.

A future where this Parliament resolves that the injustices of the past must
never, never happen again.

A future where we harness the determination of all Australians, Indigenous
and non-Indigenous, to close the gap that lies between us in life expectancy,
educational achievement and economic opportunity.

A future where we embrace the possibility of new solutions to enduring
problems where old approaches have failed.

A future based on mutual respect, mutual resolve and mutual
responsibility. A future where all Australians, whatever their origins, are
truly equal partners, with equal opportunities and with an equal stake in
shaping the next chapter in the history of this great country,
Australia.^[167]

In order to bring the Native Title Act into line with this Government’s
new approach to acknowledging the past and creating a fairer and respectful
relationship, this part of the native title system should be amended.

One way of doing this would be to consider an amendment to the Native Title
Act which addresses the court’s inability to consider the reasons for
interruption in continuity. Such an amendment could state:

In determining a native title determination made under section 61, the Court
shall treat as relevant to the question whether the applicant has satisfied the
requirements of section 223:

• whether the primary reason for any demonstrated interruption to the
  acknowledgment of traditional laws and the observance of traditional customs is
  the action of a State or Territory or a person who is not an Aboriginal person
  or Torres Strait Islander
• whether the primary reason for any demonstrated significant change to the
  traditional laws acknowledged and the traditional customs observed by the
  Aboriginal peoples or the Torres Strait Islanders is the action of a State or
  Territory or a person who is not an Aboriginal person or Torres Strait
  Islander.

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6.4 Revitalisation of culture

The United Nations Human Rights Committee has emphasised that the protection
of the right to culture in article 27 of the ICCPR includes a protection of not
only traditional means of livelihood, but their adaptation to modern times.

The right to enjoy ones culture cannot be determined in abstracto but has to
be placed in context. In this connection, the Committee observes that article 27
does not only protect traditional means of livelihood of national minorities, as
indicated in the State party’s submission. Therefore, that the authors
have adapted their methods of reindeer herding over the years and practice it
with the help of modern technology does not prevent them from invoking article
27 of the Covenant.^[168]

Although the case law in Australia provides that native title rights and
interests can be adapted, there are questions over the extent to which
traditional laws and customs may change before they cease to be
‘traditional’.^[169]

The level of adaptation generally allowed under s 223 of the NTA has been
interpreted quite narrowly^[170],
retaining a romanticised image of how Aboriginal Australians ought to live in
order to be ‘cultural’ or ‘traditional’. Section 223 has
been said to hold Indigenous people to an ‘[i]mpossible standard of
authentic traditional
culture.’^[171]

Yet there is ‘an increasing body of research highlighting that
reinterpretation, reinvention and in some cases revival of cultural practice are
integral elements to the maintenance and assertion of tradition...revitalisation
of the celebration of ANZAC day as an example that would not meet the test of
‘continuing tradition’ as applied by the
NTA’.^[172]

The question is how the Australian law can reflect the rights of Indigenous
peoples to revitalise their culture?

Currently, section 223 is inadequate in fulfilling Australia’s
international human rights obligations in this regard:

[the law is unable] to deal adequately with the issue of cultural change over
time. In order to overcome these new problems of injustice, we need to approach
the issue of cultural change over time more seriously, and not necessarily
equate change with a loss of identity or
authenticity.^[173]

This necessarily leads us to the question of whether the Native Title Act
should be amended so that the s 223 definition of ‘traditional’ is
redefined to be whether the culture ‘remains identifiable through
time’. Some commentators suggest that amendment to the Act may not be
necessary, but that Yorta Yorta would need to be overturned:

[the Yorta Yorta] approach to the recognition of native title was dependent
upon the existence of an authentic form of aboriginal culture – an
argument which can be seen to flow from the original Mabo ruling which argued
that ‘native title has its origins in and is given its content by the
traditional laws acknowledged by and the traditional customs observed by the
indigenous inhabitants of a territory’. However, this original argument in
no way negates the possibility that cultures, and so too a society’s lore,
norms and traditions, can change over time... However, as Lisa Strelein has
argued ‘the radical title of the Crown at the time of the acquisition of
sovereignty was burdened not by native title rights and interests then existing,
but was burdened by the fact of the existence of native title’. And so, in
the Australian case at least, problems associated with the inability of the
native title process to adequately deal with questions of change stem not from
the law itself but rather from its
interpretation.^[174]

However, another alternative would be to tie in rights to revitalisation of
culture with another form of recognition of Traditional Ownership, as discussed
in chapter 2 of this Report. This would not necessarily require amending s 223
of the Native Title Act, but creating a second tier of recognition with
different rights attached.

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6.5 Recognition and healing

As I highlighted earlier in this chapter and in chapter 2 of this Report,
recognition of Traditional Owners rights to their country are essential. The
strict application of section 223 of the NTA plays a significant role in the
strength and healing of a community and in doing so can provide psychological
benefits:

I don’t want to dismiss or understate the value of the achievements to
date. Achievements that have not only resulted in tangible economic and cultural
benefits from having native title recognised but important intangibles; being,
the emotional and psychological strengthening of Indigenous people individually
and collectively...^[175]

In his judgment in Rubibi No 7, Justice Merkel recognised that
‘[a]chieving native title to traditional country can lead to the
enhancement of self respect, identity and pride for indigenous
communities.’^[176] However,
he also recognised the flip side of the effects if native title is denied.

It is also important that indigenous communities appreciate the risk, which
recent experience reveals is far from hypothetical, of failure in a native title
claim. Where that occurs, it can have devastating consequences for the claimant
community... native title may prove to be yet another of the prospects held out
to indigenous communities where the realisable gain falls short of that
originally expected as a result of the decision in Mabo v Queensland (No
2) (1992) 175 CLR 1.^[177]

Some of the ongoing impacts of the policies of forcibly removing
children from their families, and other policies have ongoing effects on
communities that also affect their native title claims. The need for healing
within groups and the resolution of intra-Indigenous dispute is
essential:^[178]

I think if you’re going to be talking about different land holding or
different ways of recognising people, you also have to deal with the pain of
dispossession and 200 years of that impact, and you’re not going to get
there spontaneously, you have to get there through a
process...^[179]

The Attorney-General stated that ‘being unable to meet the required
standard for a determination of native title at a particular point in history
does not mean those Indigenous people do not have strong relationships with the
land and with each
other.’^[180] The Larrakia
case, which I considered in last year’s report, is an example of this
connection, even though native title wasn’t recognised by the courts.
However, the current legal system operates in such a way that if the strict,
technical legal requirements of native title are not met, there is nothing to
ensure that Traditional Owners rights are formally recognised. The lack of any
recognition is discussed in chapter 2 of this Report.

However, it is important that when the government considers the benefits and
broader role of native title and how it can be improved, that the psychological
impacts of recognition (or being denied recognition) are considered. Such
impacts will greatly effect the government’s commitment to reconciliation
and improving the life chances of Indigenous peoples.

 

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---

^[1] South West Aboriginal Land and
Sea Council, The single Noongar claim, Fact Sheet. At: http://www.noongar.org.au/documents/SNC_fact.pdf (viewed August 2008).

^[2] Attorney-General, Speech (Speech delivered at the Negotiating Native
Title Forum Brisbane, 29 February 2008). At: http://www.attorneygeneral.gov.au/www/ministers/RobertMc.nsf/Page/Speeches_2008_29February2008-NegotiatingNativeTitleForum (viewed March 2008).

^[3] See T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, Australian Human Rights Commission (2008) and
the Native Title Act Amendment Bill 2007 for details of the changes.

^[4] See Appendix 1 for more
information on the determinations that were made throughout the year.

^[5] J Eaton, Native Title
Registrar, Federal Court of Australia, Correspondence to T Calma, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Australian Human Rights
Commission, 21 August 2008.

^[6] The decision at first instance was Bennell v Western Australia (2006) 230
ALR 603. This decision was discussed in T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Native Title Report 2007,
Australian Human Rights Commission (2008), pp 146-150. The appeal decision is Bodney v Bennell [2008] FCAFC 63.

^[7] Bennell v Western
Australia (2006) 230 ALR 603.

^[8] Bodney v Bennell [2008]
FCAFC 63, 210 (Finn, Sundberg and Mansfield JJ).

^[9] Bennell v Western
Australia (2006) 230 ALR 603. See T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Native Title Report 2007,
Australian Human Rights Commission (2008) pp 146-150 for more information on the
case at first instance.

^[10] Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR
422.

^[11] Bennell v Western
Australia (2006) 230 ALR 603, para 791 (Wilcox J), quoting Members of the
Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR
422.

^[12] S Brennan, Recent
Developments in Native Title Case Law (presentation at the Human Rights Law
Bulletin Seminar, Australian Human Rights Commission, Sydney, 4 June
2007).

^[13] Bodney v
Bennell [2008] FCAFC 63.

^[14] Bodney v Bennell [2008] FCAFC 63, 73 (Finn, Sundberg and Mansfield JJ),
original emphasis.

^[15] Bodney
v Bennell [2008] FCAFC 63, 89 (Finn, Sundberg and Mansfield
JJ).

^[16] Bodney v Bennell [2008] FCAFC 63, 95 (Finn, Sundberg and Mansfield JJ).

^[17] See below for a discussion
about section 223 of the Native Title Act 1993 (Cth) and the right to
culture. See W Jonas, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 2002, Australian Human Rights
Commission (2003), p 31 onwards. At:
http://www.humanrights.gov.au/social_justice/nt_report/index.html#2002; W Jonas,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2003, Australian Human Rights Commission (2004), p 149. At: http://www.humanrights.gov.au/social_justice/nt_report/ntreport03/index.htm.

^[18] Bodney v Bennell [2008] FCAFC 63, 76 (Finn, Sundberg and Mansfield JJ).

^[19] Bodney v Bennell [2008] FCAFC 63, 79 (Finn, Sundberg and Mansfield JJ).

^[20] Bodney v Bennell [2008] FCAFC 63, 95 (Finn, Sundberg and Mansfield JJ).

^[21] Members of the Yorta
Yorta Aboriginal Community v Victoria (2002) 214 CLR
422.

^[22] Bennell v Western
Australia (2006) 230 ALR 603, 774-791.

^[23] Bodney v Bennell [2008] FCAFC 63, 79-82 (Finn, Sundberg and Mansfield
JJ).

^[24] Bodney v Bennell [2008] FCAFC 63, 81 (Finn, Sundberg and Mansfield JJ).

^[25] Bodney v Bennell [2008] FCAFC 63, 97 (Finn, Sundberg and Mansfield JJ) (emphasis added).

^[26] See below for a discussion
on s223 of the Native Title Act 1993 (Cth) and the right to culture. See
T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, Australian Human Rights Commission (2008),
chapter 8, for a discussion on the revitalisation of culture.

^[27] J Williams, Confessions
of a native judge – reflections on the role of transnational justice in
the transformation of indigeneity, (Speech delivered at the Native
Title Conference, Perth, 5 June 2008).

^[28] Bodney v Bennell [2008] FCAFC 63, 167 and 185 (Finn, Sundberg and Mansfield
JJ).

^[29] Bodney v Bennell [2008] FCAFC 63, 210 (Finn, Sundberg and Mansfield JJ).

^[30] Bodney v Bennell [2008] FCAFC 63, 211 (Finn, Sundberg and Mansfield
JJ).

^[31] E Ripper, Keynote
address, (Speech delivered at the AIATSIS Native Title Conference, Perth, 5
June 2008).

^[32] Attorney-General, ‘Single Noongar decision’, (Media Release,
23 April 2008). At: http://www.attorneygeneral.gov.au/www/ministers/robertmc.nsf/Page/MediaReleases_2008_SecondQuarter_SingleNoongarDecision-23April2008 (viewed May 2008).

^[33] R
Hickson, Principle Legal Officer, South West Aboriginal Land and Sea Council, Telephone interview with the Native Title Unit of the Australian Human Rights
Commission for the Native Title Report 2008, 20 November
2008.

^[34] R Hickson, Principle
Legal Officer, South West Aboriginal Land and Sea Council, Telephone
interview with the Native Title Unit of the Australian Human Rights Commission
for the Native Title Report 2008, 20 November
2008.

^[35] R Hickson, Principle
Legal Officer, South West Aboriginal Land and Sea Council, Telephone
interview with the Native Title Unit of the Australian Human Rights Commission
for the Native Title Report 2008, 20 November
2008.

^[36] The State of
Western Australia v Sebastian [2008] FCAFC 65.

^[37] The first instance decision
was Rubibi Community v State of Western Australia (No7) [2006] FCA
459.

^[38] The State of Western
Australia v Sebastian [2008] FCAFC 65, 5 (Branson, North and Mansfield JJ)
citing Members of the Yorta Yorta Aboriginal Community v Victoria (2002)
214 CLR 422. Sovereignty was asserted in
1829.

^[39] Rubibi Community v
State of Western Australia (No7) [2006] FCA
459.

^[40] See also, for example, Bodney v Bennell [2008] FCAFC 63, 98-122; Griffiths v Minister for
Lands, Planning and Environment [2008] HCA 20, 129-146; De Rose v State
of South Australia (No 1) [2003] FCAFC 286, 260-268; cf Jango v Northern
Territory (2007) 159 FCR 531 and Jango v Northern Territory (2006)
152 FCR 150 (trial).

^[41] See,
for example Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya native
title claim group [2005] FCAFC 135, 71, 79-85; Bodney v
Bennell [2008] FCAFC 63, 132-159.

^[42] See for example, The
State of Western Australia v Sebastian [2008] FCAFC 65, 226; Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya native title claim
group [2005] FCAFC 135, 187; Griffiths v Minister for Lands,
Planning and Environment [2008] HCA 20; and see also Moses v State of
Western Australia [2007] FCAFC 79, 170.

^[43] The State of Western
Australia v Sebastian [2008] FCAFC 65, 108 (Branson, North and Mansfield
JJ).

^[44] Rubibi Community v
Western Australia (No 5) [2005] FCA 1025,
363.

^[45] The State of Western
Australia v Sebastian [2008] FCAFC 65, 96 (Branson, North and Mansfield
JJ).

^[46] The State of Western
Australia v Sebastian [2008] FCAFC 65, 104 (Branson, North and Mansfield
JJ).

^[47] See section 47B of the Native Title Act 1993 (Cth).

^[48] G Hiley, M McKenna and G
Denisenko (eds), (2008) 8(10) Native Title News p
168.

^[49] Rubibi Community v
State of Western Australia (No 7) [2006] FCA 459, 159 (Merkel J).

^[50] For a history of the claims
see Rubibi Community v State of Western Australia (No 7) [2006] FCA 459,
159-165.

^[51] J Turfrey, Yawuru
Native Title Holders (RNTBC), Telephone interview with the Native Title Unit
of the Australian Human Rights Commission for the Native Title Report 2008,
24 November 2008.

^[52] Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20.

^[53] Section 43(1) of the Lands Acquisition Act 1989 (NT).

^[54] Section 9 of
the Crown Lands Act (NT) empowers the Minister, by instrument in the
appropriate form, to grant an estate in fee simple in or lease of vacant Crown
land.

^[55] In order for the
Lots to be ‘vacant’, and therefore able to be alienated by the
Territory through sale or lease for private use (under the CLA), there must be
no other interests held in the land. Consequently, the Minister must acquire all
the interests in the land under the Lands Acquisition Act (NT) (the LAA).
Section 4 of the LAA defines interests in land to include native title rights
and interests. Section 43(1) of the LAA empowers the Minister to compulsorily
acquire land ‘for any purpose whatsoever’ by publishing a notice in
the Gazette declaring the land to be acquired (after certain pre-conditions are
met). Section 5A(1) of the LAA provides that acquiring native title rights and
interests constitutes an ‘act’ under the Native Title Act
1993 for the purposes of s 24MD(6A) and (6B) of that Act. This triggers the
same procedural rights as those that holders of ‘ordinary title in the
land’ would have had.

^[56] Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20,
60-61 (Kirby J), citing Griffiths v NT (2007) 243 ALR
72.

^[57] Griffiths v Northern
Territory (2007) 243 ALR 72.

^[58] Griffiths v Minister for
Lands, Planning and Environment [2008] HCA 20, 20 (Gummow, Hayne and Heydon
JJ).

^[59] Griffiths v Minister
for Lands, Planning and Environment [2008] HCA 20, 19 (Gummow, Hayne and
Heydon JJ).

^[60] Griffiths v
Minister for Lands, Planning and Environment [2008] HCA 20, 117 (Kirby
J).

^[61] Griffiths v Minister
for Lands, Planning and Environment [2008] HCA 20, 48-49 (Gummow, Hayne and
Heydon JJ), 7 (Gleeson CJ), 76 (Kirby J) and 156 (Kiefel J).

^[62] L Strelein, AIATSIS,
‘Compulsory Acquisition powers: Griffiths v Minister for Lands Planning
and Environment [2008] HCA (15 May 2008)’, Native Title Research Unit
Resource Page. At:

http://ntru.aiatsis.gov.au/research/griffiths/compulsory_acquisition_griffiths.pdf,
p 1 (viewed July 2008).

^[63] L
Strelein, AIATSIS, ‘Compulsory Acquisition powers: Griffiths v Minister
for Lands Planning and Environment [2008] HCA (15 May 2008)’, Native
Title Research Unit Resource Page. At:

http://ntru.aiatsis.gov.au/research/griffiths/compulsory_acquisition_griffiths.pdf,
p 1 (viewed July 2008).

^[64] L
Strelein, AIATSIS, ‘Compulsory Acquisition powers: Griffiths v Minister
for Lands Planning and Environment [2008] HCA (15 May 2008)’, Native
Title Research Unit Resource Page. At:

http://ntru.aiatsis.gov.au/research/griffiths/compulsory_acquisition_griffiths.pdf,
p 1 (viewed July 2008).

^[65] Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20,
181 (Kiefel J).

^[66] Griffiths v Minister for Lands, Planning and Environment [2008] HCA 20,
57 (Kirby J).

^[67] Griffiths v
Minister for Lands, Planning and Environment [2008] HCA 20, 58 (Kirby
J).

^[68] Griffiths v Minister
for Lands, Planning and Environment [2008] HCA 20, 57 (Kirby
J).

^[69] Griffiths v Minister
for Lands, Planning and Environment [2008] HCA 20, 109 (Kirby
J).

^[70]Griffiths v Minister
for Lands, Planning and Environment [2008] HCA 20, 151 (Kirby J).

^[71]Griffiths v Minister for
Lands, Planning and Environment [2008] HCA 20, 115 (Kirby
J).

^[72]Griffiths v Minister
for Lands, Planning and Environment [2008] HCA 20, 128 (Kirby J), citing
Professor K Gray, ‘There's No Place Like Home!’, (2007) 11(1) Journal of South Pacific Law 73, pp
74-75.

^[73] Griffiths v
Minister for Lands, Planning and Environment [2008] HCA 20, 137 (Kirby
J).

^[74] Griffiths v Minister
for Lands, Planning and Environment [2008] HCA 20, 90-93 (Kirby
J).

^[75] Griffiths v Minister
for Lands, Planning and Environment [2008] HCA 20, 94 (Kirby
J).

^[76] Griffiths v Minister
for Lands, Planning and Environment [2008] HCA 20, 95-99 (Kirby
J).

^[77] Griffiths v Minister
for Lands, Planning and Environment [2008] HCA 20, 102 (Kirby J).

^[78] Griffiths v Minister for
Lands, Planning and Environment [2008] HCA 20, 103 (Kirby
J).

^[79] Griffiths v Minister
for Lands, Planning and Environment [2008] HCA 20, 105 (Kirby
J).

^[80] Griffiths v Minister
for Lands, Planning and Environment [2008] HCA 20, 106 (Kirby
J).

^[81] Griffiths v Minister
for Lands, Planning and Environment [2008] HCA 20, 106 (Kirby
J).

^[82] Griffiths v Minister
for Lands, Planning and Environment [2008] HCA 20, 107 (Kirby
J).

^[83] Griffiths v Minister
for Lands, Planning and Environment [2008] HCA 20, 66 (Kirby
J).

^[84] Griffiths v Minister
for Lands, Planning and Environment [2008] HCA 20, 147 (Kirby
J).

^[85] See M Dodson, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Native Title Report
July 1994-June 1995, Australian Human Rights Commission (1995), p
142.

^[86] Article 17 of the Universal Declaration of Human Rights provides the following: (1)
everyone has the right to own property alone as well as in association with
others, (2) no one shall be arbitrarily deprived of his
property.

^[87] Australia ratified
the Convention on the Elimination of All Forms of Racial Discrimination on 30 September 1975.

^[88] See M
Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report July 1994-June 1995, Australian Human Rights
Commission (1995), pp
142-143.

^[89] Committee on the
Elimination of Racial Discrimination, General Comment No. 23: Indigenous
peoples, UN Doc A/52/18, annex V (1997). At: http://www.unhchr.ch/tbs/doc.nsf/0/73984290dfea022b802565160056fe1c?Opendocument (viewed July 2008).

^[90] Committee on the Elimination of Racial Discrimination, General Comment No.
23: Indigenous peoples, UN Doc A/52/18, annex V (1997). At: http://www.unhchr.ch/tbs/doc.nsf/0/73984290dfea022b802565160056fe1c?Opendocument (viewed July 2008).

^[91] In
response to the Wik case, the Australian Government amended the Native
Title Act. The amendments, which are known as the Wik 10 point plan, reduced
the right to negotiate so that it only applies to mining activities and some
compulsory acquisitions; validated leases granted by governments that were
thought to be invalid because of native title, and confirmed the extinguishment
of native title on a range of leases and other land tenures, such as freehold
land; upgraded pastoral leaseholds by increasing the activities that could take
place under the lease without having to negotiate with native title holders;
made it more difficult to register native title applications and introduced
‘Indigenous Land Use Agreements’ (ILUAs) which provide native title
groups with an opportunity to negotiate voluntary but binding agreements with
others, including pastoralists and mining companies, about their lands and
waters. The 1998 amendments to the Native Title Act were referred to the United
Nations Committee for the Elimination of Racial Discrimination (CERD) and found
to be in breach of Australia's international human rights obligations. CERD has
since twice reaffirmed its findings and continues to criticise the Australian
Government for their failure to address this
breach.

^[92] See M Dodson,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report July 1996-June 1997, Australian Human Rights Commission (1997),
pp 96-100.

^[93] S Brennan,
‘Compulsory acquisition of native title land for private use by third
parties’ (2008) 19 Public Law Review 179.

^[94] S Brennan,
‘Government expropriation for private profit hits Aboriginal land
hardest’ 7(6) Indigenous Law Bulletin 2.

^[95] S Brennan,
‘Compulsory acquisition of native title land for private use by third
parties’ (2008) 19 Public Law Review 179, p
184.

^[96] M Dodson, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Native Title Report
July 1995-June 1996, Australian Human Rights Commission (1996), p
18.

^[97] Yarmirr v Northern
Territory (1998) 156 ALR 370.

^[98] Z Antonios, Acting
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title
Report 1998, Australian Human Rights Commission (1999), p 101 citing Yarmirr
v Northern Territory (1998) 156 ALR 370 (the Croker Island case). At: http://www.humanrights.gov.au/pdf/social_justice/native_title_report_98.pdf.

^[99] See box below on the
Griffiths native title determination.

^[100] Griffiths v Northern
Territory (2007) 243 ALR 72, 104 (French, Branson and Sundberg
JJ).

^[101] M Dodson, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Native Title Report
July 1995-June 1996, Australian Human Rights Commission (1996), p
19.

^[102] M Dodson, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Native Title Report
July 1995-June 1996, Australian Human Rights Commission (1996), p
22.

^[103] M Dodson, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Native Title Report
July 1995-June 1996, Australian Human Rights Commission (1996), p 22. The
Northern Territory land rights regime is enshrined in the Aboriginal Land
Right Act (Northern Territory) 1974.

^[104] M Dodson, Aboriginal and
Torres Strait Islander Social Justice Commissioner, Native Title Report July
1995-June 1996, Australian Human Rights Commission (1996), p
22.

^[105] Many governments
state, or have in the past stated, that compulsory acquisition of native title
is a last resort. For example, see the Australian Local Government Association, Compulsory acquisition of native title and compensation: Issues for local
government, Issues paper No.7. At: http://www.alga.asn.au/policy/indigenous/nativeTitle/issuesPapers/issuePaper07.php (viewed July 008). However, as I have stated in this Report, these policies are
subject to change at the whim of government. There are recent reports of such
disregard for native title in Western Australia, where it has been reported that
the government considers native title as a ‘hurdle’ to new
development and has stated that it will use compulsory acquisition powers to
ensure that the government can pursue policies that are ‘unashamedly
pro-development’. See A O’Brien, ‘I’ll take West
Australian native title land: Barnett’, The Australian, 11 December
2008. At: http://www.theaustralian.news.com.au/story/0,25197,24782899-5013945,00.html (viewed December 2008).

^[106] Z Antonios, Acting Aboriginal and Torres Strait Islander Social Justice
Commissioner, Native Title Report 1998, Australian Human Rights
Commission (1999), p 94, citing Senator the Hon. Nick
Minchin.

^[107] Z Antonios,
Acting Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 1998, Australian Human Rights Commission (1999), pp
84-116.

^[108] M Dodson,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report July 1995-June 1996, Australian Human Rights Commission (1996),
p 21.

^[109] See chapter 4 for
more information on the right to culture. Article 27 of the International
Covenant on Civil and Political Rights is the primary source of Indigenous
peoples’ rights to culture in Australia.

^[110] Convention on the
Elimination of All Forms of Racial Discrimination, opened for signature 7
March 1966, 660 UNTS 195 (entered into force 4 January 1969. Australia ratified
the convention on 30 September
1975).

^[111] See the Native
Title Act 1993 (Cth), and the amendments made to that Act in 1998. See also
the legislation that made up the Northern Territory Emergency Response. However,
see M Dodson, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report July 1995-June 1996, Australian Human Rights
Commission (1996), p 23: Special protection of native title rights and interests
from compulsory acquisition would not constitute a special measure in and of
itself as the NTA attempts to achieve substantive equality through recognising
and accommodating the inherently different character of native title.

^[112] See National Native
Title Tribunal, Native title hot spots (2008) 27, pp 33-40 for a summary
of the case.

^[113] Griffiths v Northern Territory (2007) 243 ALR 72, 127 (French, Branson
and Sundberg JJ).

^[114] Griffiths v Northern Territory (2007) 243 ALR 72, 128 (French, Branson
and Sundberg JJ).

^[115] The
decision of the Full Federal Court was Gumana v Northern Territory of
Australia (2005) 218 ALR 292. This decision was summarised in T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2007, Australian Human Rights Commission (2008), pp 227-229.
At: http://www.humanrights.gov.au/social_justice/nt_report/ntreport07/index.html.

^[116] Northern Territory v
Arnhem Land Aboriginal Land Trust [2008] HCA 29. The court was split 5
judges to 2. Gleeson CJ, Gummow, Hayne and Crennan JJ Kirby J agreeing; Kiefel
and Heydon JJ dissented.

^[117] Under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), the
relevant Land Council (in this case, the Northern Land Council) for any
Aboriginal land, can grant permission for people to enter and remain on the
land.

^[118] ALRA land is land
that has been granted to an Aboriginal Trust under the Aboriginal Land Rights
(Northern Territory) Act 1976 (Cth) to be held for the benefit of the
Aboriginal Traditional Owners.

^[119] M McLaughlin,
‘Traditional owners win control of waters’, The 7.30 Report, 30 July 2008. At: http://www.abc.net.au/7.30/content/2008/s2319497.htm (viewed August 2008).

^[120] S
Brennan, 'Wet or Dry, It's Aboriginal Land: The Blue Mud Bay Decision on the
Intertidal Zone' (2008) 7(7) Indigenous Law Bulletin 6.

^[121] In the case, the two
areas are referred to as the Mainland Grant and the Islands Grant.

^[122] Northern Territory v
Arnhem Land Aboriginal Land Trust [2008] HCA 29, 1-8 (Gleeson CJ, Gummow,
Hayne, Crennan JJ).

^[123] Northern Territory v Arnhem Land Aboriginal Land Trust [2008] HCA 29, 8
(Gleeson CJ, Gummow, Hayne, Crennan J).

^[124] Northern Territory v
Arnhem Land Aboriginal Land Trust [2008] HCA 29, 22 (Gleeson CJ, Gummow,
Hayne, Crennan J).

^[125] Northern Territory v Arnhem Land Aboriginal Land Trust [2008] HCA 29,
27-28 (Gleeson CJ, Gummow, Hayne, Crennan
J).

^[126] Northern Territory
v Arnhem Land Aboriginal Land Trust [2008] HCA 29, 33 and 36 (Gleeson CJ,
Gummow, Hayne, Crennan
J).

^[127] Northern Territory
v Arnhem Land Aboriginal Land Trust [2008] HCA 29, 41 (Gleeson CJ, Gummow,
Hayne, Crennan J).

^[128] Northern Territory v Arnhem Land Aboriginal Land Trust [2008] HCA 29, 55
(Gleeson CJ, Gummow, Hayne, Crennan
J).

^[129] Northern Territory
v Arnhem Land Aboriginal Land Trust [2008] HCA 29, 62 (Gleeson CJ, Gummow,
Hayne, Crennan J).

^[130] Northern Territory v Arnhem Land Aboriginal Land Trust [2008] HCA 29, 61
(Gleeson CJ, Gummow, Hayne, Crennan J). The Northern Territory legislation that
provides for the Land Council’s powers and responsibilities as trustee of
the land is the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

^[131] Northern
Territory v Arnhem Land Aboriginal Land Trust [2008] HCA 29, 67-69 (Kirby
J).

^[132] Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, pp
167-173 (The Hon Kevin Rudd MP, Prime Minister). See chapter 1 of this Report.

^[133] Northern Territory v
Arnhem Land Aboriginal Land Trust [2008] HCA 29, 70 (Kirby J).

^[134] Northern Territory v
Arnhem Land Aboriginal Land Trust [2008] HCA 29, 71 (Kirby J).

^[135] C Graham, ‘Bay of
plenty’, National Indigenous Times, 7 August 2008. At: http://nit.com.au/News/story.aspx?id=15760 (viewed August 2008).

^[136] M
McLaughlin, ‘Traditional owners win control of waters’, The 7.30
Report, 30 July 2008. At http://www.abc.net.au/7.30/content/2008/s2319497.htm (viewed August 2008).

^[137] R
Levy, Principal Legal Officer, Northern Land Council, Telephone interview
with the Native Title Unit of the Australian Human Rights Commission for the
Native Title Report 2008, 20 November 2008.

^[138] A Kirk, ‘Tidal
rights decision, ‘extraordinarily significant’: academic’, The World Today, 30 July 2008 quoting J Altman. At http://www.abc.net.au/worldtoday/content/2008/s2318855.htm,
(viewed August 2008).

^[139] C
Graham, ‘Bay of plenty’, National Indigenous Times, 7 August
2008, quoting Nicole Watson. At: http://nit.com.au/News/story.aspx?id=15760 (viewed August 2008).

^[140] Australian Broadcasting Corporation, ‘Compensation for Blue Mud Bay
decision unlikely: Macklin’, ABC news, 30 July 2008. At: http://www.abc.net.au/news/stories/2008/07/30/2319441.htm (viewed August 2008).

^[141] A
Kirk, ‘Tidal rights decision, ‘extraordinarily significant’:
academic’, The World Today, 30 July 2008, quoting J Altman. At: http://www.abc.net.au/worldtoday/content/2008/s2318855.htm (viewed August 2008).

^[142] M
McLaughlin, ‘Traditional owners win control of waters’, The 7.30
Report, 30 July 2008. At: http://www.abc.net.au/7.30/content/2008/s2319497.htm (viewed August 2008); Northern Territory v Arnhem Land Aboriginal Land Trust
[2008] HCA 29, 10-11 (Gleeson CJ, Gummow, Hayne, Crennan
J).

^[143] C Graham, ‘Bay
of plenty’, National Indigenous Times, 7 August 2008. At: http://nit.com.au/News/story.aspx?id=15760 (viewed August 2008).

^[144] N
Robinson and P Karvelas, ‘Land rights reach into the sea’, The
Australian, 31 July 2008. At: http://www.theaustralian.news.com.au/story/0,25197,24104643-2702,00.html (viewed August 2008).

^[145] Australian Broadcasting Corporation, ‘Compensation for Blue Mud Bay
decision unlikely: Macklin’, ABC news, 30 July 2008. At: http://www.abc.net.au/news/stories/2008/07/30/2319441.htm (viewed August 2008).

^[146] Australian Broadcasting Corporation, ‘Compensation for Blue Mud Bay
decision unlikely: Macklin’, ABC news, 30 July 2008 citing the Hon
Kevin Rudd, Prime Minister: ‘We are encouraged by the positive and
constructive attitude which has been demonstrated thus far by organisations such
as the Northern Territory Lands Council in terms of ensuring that there are
flexible and sensible arrangements, negotiated arrangements put in place which
can properly balance the rights and interests of fishers both commercial and
recreational’.

^[147] N
Robinson and P Karvelas, ‘Land rights reach into the sea’, The
Australian, 31 July 2008. At: http://www.theaustralian.news.com.au/story/0,25197,24104643-2702,00.html (viewed August 2008).

[148] A Kirk,
‘Tidal rights decision, ‘extraordinarily significant’:
academic’, The World Today, 30 July 2008 quoting J Altman. At http://www.abc.net.au/worldtoday/content/2008/s2318855.htm (viewed August 2008).

^[149] C
Graham, ‘Bay of plenty’, National Indigenous Times, 7 August
2008, citing S Brennan. At: http://nit.com.au/News/story.aspx?id=15760 (viewed August 2008).

^[150] G
Ansley, ‘The right to fish’, New Zealand Herald, 2 August
2008. At: http://www.nzherald.co.nz/world/news/article.cfm?c_id=2&objectid=10524843 (viewed August 2008).

^[151] See chapters 7 and 8 of T Calma, Aboriginal and Torres Strait Islander Social
Justice Commissioner, Native Title Report 2007, Australian Human Rights
Commission (2008).

^[152] B
Smith and F Morphy (eds), The social effects of native title: recognition,
translation, coexistence (2007), p
2.

^[153] K Smith, Proving
native title; discharging a crushing burden of proof, (Speech delivered at
the Judicial Conference of Australia National Colloquium, Gold Coast, 10 October
2008).

^[154] See T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2007, Australian Human Rights Commission (2008); T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2006, Australian Human Rights Commission (2007). At: http://www.humanrights.gov.au/social_justice/nt_report/ntreport06/index.html; T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2005, Australian Human Rights Commission (2005). At: http://www.humanrights.gov.au/social_justice/nt_report/ntreport05/index.html.

^[155] Committee on the
Elimination of Racial Discrimination, Concluding observations of the
Committee on the Elimination of Racial Discrimination: Australia, UN Doc
CERD/C/AUS/CO/14 (2005); Human Rights Committee, Concluding observations of
the Human Rights Committee: Australia, UN Doc A/55/40, paras 498-528.

^[156] M Wilcox, former Justice
of the Federal Court of Australia, Telephone interview with the Native Title
Unit of the Australian Human Rights Commission for the Native Title Report
2008, 23 July 2008.

^[157] M
Wilcox, former Justice of the Federal Court of Australia, Telephone interview
with the Native Title Unit of the Australian Human Rights Commission for the
Native Title Report 2008, 23 July
2008.

^[158] R French CJ, Rolling a rock uphill? – native title and the myth of Sisyphus, (Speech delivered at the Judicial Conference of Australia National Colloquium,
Gold Coast, 10 October
2008).

^[159] M Wilcox, former
Justice of the Federal Court of Australia, Telephone interview with the
Native Title Unit of the Australian Human Rights Commission for the Native Title
Report 2008, 23 July
2008.

^[160] R French CJ, Rolling a rock uphill? – native title and the myth of Sisyphus (speech delivered at the Judicial Conference of Australia National Colloquium,
Gold Coast, 10 October
2008).

^[161] See also S Young, The trouble with tradition (2008); R French CJ, Rolling a rock uphill?
– native title and the myth of Sisyphus, (Speech delivered at the
Judicial Conference of Australia National Colloquium, Gold Coast, 10 October
2008); and Justice Merkel in Rubibi Community v State of Western Australia
(No 7) [2006] FCA 459.

^[162] See for example, Bodney v Bennell [2008] FCAFC 63, 75 (Finn, Sundberg and Mansfield JJ).

^[163] Members of the Yorta
Yorta Aboriginal Community v Victoria (2002) 214 CLR 422,
27.

^[164] K Smith, Proving
native title; discharging a crushing burden of proof, (Speech delivered at
the Judicial Conference of Australia National Colloquium, Gold Coast, 10 October
2008).

^[165] J McNamara,
Executive Director, Indigenous Services, QLD Department of Natural Resources and
Water, Correspondence to T Calma, Aboriginal and Torres Strait Islander Social
Justice Commissioner, Australian Human Rights Commission, 18 September 2008.

^[166] Members of the Yorta
Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, 90.

^[167] Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, p ¹⁶⁷ (The Hon Prime Minister Kevin Rudd MP). As I stated in chapter 1
of this Report, the policies of removing children from their homes cannot be
separated from native title, as in many cases, this removal of children may have
broken their connection to their land and in doing so, denied them their native
title rights under the Native Title Act.

^[168] M Scheinin, Indigenous peoples’ land rights under the International Covenant on
Civil and Political Rights, (Paper for Torkel Oppsahls minneseminar, Oslo,
28 April 2004), citing Ilmari Lansman et al v Finland (Communication 511/1992).

^[169] See T Calma, Aboriginal
and Torres Strait Islander Social Justice Commissioner, Native Title Report
2007, Australian Human Rights Commission (2008), p 54 for revitalisation of
culture.

^[170] T Calma,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native
Title Report 2007, Australian Human Rights Commission (2008).

^[171] M Barcham, ‘The
limits of recognition’ in B Smith and F Morphy (eds), The social
effects of native title: recognition, translation, coexistence (2007), p
209.

^[172] B Scambary,
‘”No vacancies at the Starlight Motel”: Larrakia identity and
the native title claims process’, in B Smith and F Morphy (eds), The
social effects of native title: recognition, translation, coexistence (2007), pp 152-153.

^[173] M
Barcham, ‘The limits of recognition’ in B Smith and F Morphy (eds), The social effects of native title: recognition, translation, coexistence (2007), p 203.

^[174] M
Barcham, ‘The limits of recognition’ in B Smith and F Morphy (eds), The social effects of native title: recognition, translation, coexistence (2007), p 211.

^[175] K
Smith, Proving native title; discharging a crushing burden of proof, (Speech delivered at the Judicial Conference of Australia National
Colloquium, Gold Coast, 10 October
2008).

^[176] Rubibi
Community v State of Western Australia (No 7) [2006] FCA
459.

^[177] Rubibi Community
v State of Western Australia (No 7) [2006] FCA
459.

^[178] For more information
on healing, see T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Social Justice Report 2008, Australian Human Rights
Commission (2009).

^[179] K
Smith, CEO, Qld South Native Title Services Ltd, Telephone interview with the
Native Title Unit of the Australian Human Rights Commission for the Native Title
Report 2008, 19 September 2008; T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Social Justice Report 2008,
Australian Human Rights Commission (2009) for more on healing.

^[180] Attorney-General, Speech, (Speech delivered at the Negotiating Native Title Forum,
Brisbane, 29 February 2008). At: http://www.attorneygeneral.gov.au/www/ministers/RobertMc.nsf/Page/Speeches_2008_29February2008-NegotiatingNativeTitleForum (viewed March 2008).