The Informa 3rd Annual Negotiating Native Title Forum
Aboriginal and Torres Strait Islander Social
Justice Commissioner and Race Discrimination Commissioner
Human Rights Commission
Vibe Savoy Hotel, Melbourne
An abridged version was delivered on the day
Good morning ladies and gentlemen.
I begin today by paying my respects to the Wurundjeri peoples, the traditional owners of the land where we gather today. I pay my respects to your elders, to the ancestors and to those who have come before us.
I would also like to acknowledge my Indigenous brothers and sisters here with us today, the Federal Attorney General, Robert McClelland, and the many native title professionals, in particular those who work in our Native Title Representative Bodies, and other distinguished guests.
As the Aboriginal and Torres Strait Islander Social Justice Commissioner, my role is to monitor the enjoyment and exercise of human rights for Indigenous Australians, and I have a particular responsibility to report on how these rights are affected by the operation of the Native Title Act. I do this through the Native Title Report which is produced each year. Fifteen Native Title Reports have been submitted to Attorneys-General which have offered detailed observations, analysis and recommendations on how the native title system impacts on the human rights of Aboriginal and Torres Strait Islanders.
As many of you here today are fully aware, this year marks the 15th anniversary of the Native Title Act which entered into force on 1 January 1994. This legislation was passed in response to the infamous Mabo decision, and was the topic of one of the longest Parliamentary debates in Australian history.
Newspaper headlines at the time either acknowledged the past and the need to make reparation for lost rights, or trumpeted doomsday warnings that native title would threaten suburban backyards - hills hoists etc. Some even threatened that the new Act would scare off investment, cripple rural development and bring economic gloom for the nation.
But these threats have never eventuated.
In fact, native title has disproven many of the doubts and fears raised 15 years ago. And now we consistantly hear stories of farmers, mining companies and governments using the native title system to formalise positive relationships with local Indigenous communities. The Minerals Council of Australia for example, has on many occasions offered its vocal support and respect for Indigenous Australians' rights and their special connection to lands and waters.
While the Native Title Act was originally limited in what rights it could recognise, it was intended to be supported by a land fund and a social justice package. Regrettably the social justice package has never eventuated. Then in 1998, the Howard Government’s 10 point plan further restricted its operation, providing ‘bucket loads’ of extinguishment of native title rights, erasing significant procedural rights, and making it more difficult for Indigenous people to prove their native title.
The end result is that we now have a system where recognition of native title is not achievable for many Indigenous Australians. And alternative forms of land justice and social justice are not accessible for many, or are dependent on state or territory government policy.
Over the last 12 months, there has been no shortage of calls for, and commitments made to making native title work better – for all of us. But for me, and I think in this regard I can say for many Aboriginal people and Torres Strait Islanders, we want to see what Koiki Mabo set out to achieve, a just and equitable native title system – both in process and in outcome.
This leads me to the topic of my talk with you today, enabling a just and equitable native title system.
Before I talk about how to achieve this, I would first like to reflect on what it should not look like based on our 15 years of experience in native title.
For Indigenous people, a just and equitable native title system, is not one that changes with the whim of government;
- it is not one that allows a historical tenure search that tells you that 50 years ago, the grant of a lease which is now expired, extinguished your rights to have your native title recognised forever
- it is not one that makes you prove over 200 years of traditional ownership eventhough you and your ancestors have lived there for thousands of years
- it is not one which takes so long to obtain recognition of your rights that your elders die
- and it is not one that tells you that you have lost your culture after you
were forcibly removed from your parents and were punished for speaking your
language or practicing your culture under government policies that legalised
Many obstacles must be overcome, and tinkering at the edges will not bring about the change that is required to achieve our end goal – a just and equitable native title system. And the Attorney-General has recognised this and has counselled those who work within the native title system that to bring about meaningful change, there must first and foremost be a change in our attitude towards native title.
While none of us here are so naive as to think that a change in attitude is all that is required, I am optimistic that the road to a just and equitable native title system and the required change in attitude, started with the election of a new federal government. A government that saw as one of its first priorities an obligation to make a formal Apology for those policies that created the need for the native title system in the first place.
As well as the Apology, the Federal Government have committed to a new relationship of partnership and respect with Indigenous peoples, and to closing the gaps between Indigenous and non-Indigenous Australians- And the activity around the native title system is a particular focus of this energy. The Attorney-General has strongly advocated for those working in native title to focus their energy on open and flexible negotiations, avoiding litigation, and achieving more beneficial and sustainable outcomes from native title negotiations. In order to achieve these goals, the Government have been working with native title stakeholders to set the scene.
In the past few weeks alone, I have made submissions to the Attorney-General on possible amendments to the Native Title Act, and to the government’s discussion paper on native title payments, which both contain a number of recommendations that suggest options for improving the operation of the native title system. I have also submitted my annual native title report to Attorneys-General. This year will be my fifth, and probably my last, as my term as the Social Justice Commissioner is due to end in early July.
As I stated earlier, in order to enable a just and equitable native title system we have many obstacles to overcome, and tinkering at the edges will not do.
Some have argued that better outcomes are already achievable under the Native Title Act as it is currently drafted, and for the short –term I agree. However, there are significant barriers within the system that more often than not have a greater impact on the rights of Indigenous peoples. These barriers must be addressed to ensure Indigenous peoples have the greatest possible opportunity to leverage just, equitable and sustainable outcomes from the native title system.
As we all know, on average, it takes more than six years to finalise a contested claim. No compensation claim has ever been successful. And there are cases where the courts have denied recognising native title in the same breath as acknowledging that the peoples before them are the same peoples that owned that land at the time of colonisation more than 200 years ago.
Last year, the Full Federal Court handed down the Rubibi case. For the traditional owners of the Broome region in Western Australia, this case is a landmark decision. The applicants, one of whom is well known to many of us here today, Patrick Dodson, lodged this claim over their traditional lands not long after the Native Title Act was passed in 1994. And after almost 15 years, through over eight court decisions, millions of dollars in appeals, and undoubtedly a significant toll on the Indigenous peoples who had to go through this process, it slowly progressed to a determination that recognised the Yawuru peoples native title rights and interests over their lands in the Broome region.
Despite the fact that they have met all the conditions of the ‘white man’s law’, the Yawuru continue to have their native title rights and interests challenged through negotiations that are occurring, while waiting to hear whether the Western Australian Government have been successful in their bid for leave to appeal to the High Court. With this threat of further litigation looming, the Yawuru are now dealing with a new government, one who has a tendency to threaten Indigenous people with compulsory acquisition if they are unwilling to surrender their rights.
It is a long, hard road for traditional owners to achieve what seems simple on paper: recognition of their pre-existing rights to their country.
Particularly under a system where Indigenous people are consistently being forced to try to fit a round peg, our system of law and governance, into the square hole that is the native title system, to have their inherent rights recognised.
So what change is necessary to even out this balance of power? To ensure that the existing framework provides the greatest benefit possible. And to develop this framework to the extent that there is clear evidence of an improved quality of life for Indigenous peoples.
In my Native Title Report 2007, I called for an overhaul of the native title system. And as discussed above the Government are currently giving consideration to possible amendments to the Native Title Act.
I’d like to consider a few areas where I think we could see the most impact to improving the equity and justice of the system, both in the short-term and the long-term. These areas are:
- Resourcing of NTRBs and Indigenous Corporations
- The number of Parties engaged in native title processes
- The Burden of Proof
- The Right to Negotiate
- Native title agreements
The most important issue reported to me is ensuring that native title claimants and their representatives are sufficiently resourced to fully and effectively participate in the processes involved in securing outcomes from native title, be it through a determination of native title or through negotiated agreements.
The bottom line is that sufficient resourcing must be provided to Native Title Representative Bodies to guarantee that claimants have access to the best possible legal and financial advice, and any other expert advice that may be necessary and would be relied upon by corporate and government stakeholders to secure their interests. As is widely acknowledged, yearly funding cycles and re-recognition periods are also a significant impediment to the capacity of Representative Bodies.
Sufficient resources must be available to ensure that claimants have the capacity to be fully engaged in decisions that will have a long-lasting affect on their lives and the lives of their families.
Not only is it vital to ensure that the Native Title Representative Body system is functioning effectively, but it is also crucial to ensure that those Indigenous Corporations that are actively engaged in native title processes are also provided with resources. There are two categories of Indigenous Corporations that I am particularly concerned about in the context of enabling a just and equitable native title system.
The first is Registered Native Title Bodies Corporate or Prescribed Bodies Corporate. While the previous Government in its 2007 amendments provided mechanisms through which these corporations could gain support, either directly from FaHCSIA or through their Native Title Representative Body, FaHCSIA have stated that the provision of funding support for PBCs beyond their initial establishment phase has been limited by the high level of demand for resources by the Native Title Representative Bodies and the level of funds available to the program. So in real terms the improvement to PBC support since these changes were introduced has been minimal to date with only 10 out of 57 registered PBCs receiving funding to a total of $380,000 that was sourced from funds allocated to their Native Title Representative Bodies.
But it is a start!
The second category in the representative system I would like to discuss, are those Indigenous Corporations that deal with native title issues but are not registered to undertake this specific purpose. These are corporations that native title claimants are forming in order to utilise the procedural rights afforded under the Native Title Act or to prepare for a determination. However, these corporations often also carry out other dealings associated with their lands before a native title determination has been made. Because these corporations are not yet Registered Native Title Bodies Corporate, meaning that there is no determination of native title, there is no funding available through the Commonwealth for these corporations at all. Yet these corporations are essential to the system’s operation, the protection of native title rights and interests prior to a determination, and fulfilling any legal obligations contained in native title agreements.
So in order to increase the efficiency and effectiveness of the native title system the Government must include in the native title budget sufficient ongoing funds that are required to promote a level playing field and sustainability from the outset.
This leads me to the second option that would contribute to enabling a just and equitable native title system. That is to address the number of parties to native title claims and improving the processes around becoming a party. A major hindrance to native title proceedings can simply be the number of parties to the proceeding. This has unquestionably resulted in excessive delays, costs and the frustration of settlement efforts throughout the native title system, and requires more effective management.
I am of the view that the thresholds for people applying for status as a party is too low and requires adjustment, particularly where respondents with only marginal relevance to the claim are being granted party status.
In the short-term, there are a number of mechanisms through which we can achieve this.
The Native Title Act already provides for the removal of parties from proceedings: including through leave of the court after proceedings have begun, and where the court orders that the party no longer has an interest that may be affected by a determination. However, the court’s powers to remove parties are not used regularly or consistently throughout native title proceedings. Greater use of this power could enable proceedings and agreements to progress more efficiently.
In the longer-term, amendments to the Native Title Act that increase the criteria by which respondents can become a party will also enable greater justice and equity in native title proceedings. by increasing the criteria by which respondents can become a party. In particular, amendments to the threshold for those parties whose interests may be affected by a determination in the proceedings should be required to specify that a party’s interest is likely to be substantially affected by a determination in the proceedings. Additionally, amendments to require parties to advise the court on a periodic basis how their interests continue to be affected by the proceedings in order to remain a party may assist with managing the current numbers of parties to native title proceedings.
The third area that I consider crucial to enabling a just and equitable native title system, but is stifling access to the native title process for Indigenous peoples, is the burden of proof.
When it comes to the native title system, I am particularly concerned with the weight of the burden imposed on Indigenous peoples in order to claim their native title rights and interests and have them recognised under the Australian legal system. The burden of proving native title is simply too great.
In native title reports I have outlined the significant evidentiary difficulties faced by Indigenous peoples seeking to establish the elements of the definition of native title. The standard and burden of proof required, and the prolonged bureaucratic process to prove native title rights, place particular burdens on Indigenous peoples seeking to gain recognition and protection of their native title rights.
It is a cruel aspect of native title law that the more an Aboriginal or Torres Strait Islander has been hurt by government policy, the less likely they are to have their native title realised. This also collides with the preamble of the Native Title Act which acknowledges the fact that Aboriginal peoples and Torres Strait Islanders are the most disadvantaged group in Australian society. As such the law should offer equitable and just remedies to our prolonged state of dispossession - not a system that requires evidence of the maintained connection to land over, in some instances, two centuries.
Some have argued that the burden should be shifted to those who were responsible for the dispossession. As one academic put it:
...the question should not be how we can deal with indigenous ‘claims’ against the state, but rather how can the colonisers legitimately settle and establish their own sovereignty.
Such an approach would not be inconsistent with the Native Title Act. The preamble states that the law ‘recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs to their traditional lands.’ A presumption in favour of the existence of native title rights and interests would simply recognise and give respect to this fact.
This approach is not something new either. There are currently a number of laws in which the burden of proof shifts to the respondent party in respect of certain elements. This is typically in situations where the respondent is the more appropriate party to prove the relevant issue.
For example, the Workplace Relations Act 1996 (Cth) provides that in claims alleging termination of employment for a proscribed reason (including sex, marital status, pregnancy, family responsibilities and absences from work during maternity leave or other parental leave), the onus is on the respondent to establish that the termination was not for a proscribed reason.
This is appropriate in the context of native title for a number of reasons, including:
- that the government holds the information that Indigenous peoples need to access to prove their claim
- it has the resources to commit
- it is the party that undertook the extinguishing act by granting the interest in land in the first place.
I believe that to shift the burden of proof to the government in native title proceedings would significantly increase the potential for a just and equitable native title system.
This is also directly linked to the fourth area, extinguishment.
As the Federal Court recognised in Northern Territory v Alyawarr:
The preamble declares the moral foundation upon which the [Native Title Act] rests. It makes explicit the legislative intention to recognise, support and protect native title. That moral foundation and that intention stand despite the inclusion in the NT Act of substantive provisions, which are adverse to native title rights and interests and provide for their extinguishment, permanent and temporary, for the validation of past acts and for the authorisation of future acts affecting native title.
The breadth and permanency of extinguishment of native title through the Native Title Act is an unnecessary approach, with little policy justification, and could easily be changed.
For example, if areas where native title has been extinguished, and consequently where it could possibly still exist, was established early in the proceedings this would:
- reduce the number of parties to the proceedings (as some could then be removed)
- help the remaining parties identify areas of contention and those over which there is no issue
- assist parties to identify where early evidence could be taken and reduce the resources required to pursue the claim further.
Again, the appropriate party to provide tenure information that confirms extinguishment is the government, based on the fact that they hold this information and are in the best position to provide a thorough tenure search; and they are responsible for the extinguishing act.
Additionally, addressed in the preamble to the Native Title Act. It states that:
where appropriate, the native title should not be extinguished but revive after a validated act ceases to have effect.
However, this is not what occurs in practice.
The 1998 amendments significantly expanded the situations in which native title rights are extinguished permanently.
Amendments that limit extinguishment to the current tenure extinguishment and repeals the provisions that validate past extinguishment would go a long way to addressing this inequity.
Alternatively, the government could consider amendments that provide a greater number of circumstances in which historical extinguishment will be disregarded. The circumstances in which this already occurs could be expanded. For example the non-extinguishment principle could be extended to cover:
- all Crown land
- other identified classes of land and waters
- any other area which the relevant government decides.
There will be a number of considerations if this path were followed including:
- the need for a transition process
- an understanding that such an approach will not do away with all historical tenure research that is required
- that any extinguishment of native title that occurred after the enactment of the Racial Discrimination Act 1975 (Cth) will still need to be examined closely in order to determine whether compensation is payable to the claimants under that Act. But overall, a rule which disregards historical extinguishment should reduce the number of circumstances in which compensation under the Racial Discrimination Act may apply.
If the extinguishment provisions were amended in this way, the cost and resources required to undertake historical tenure research would be reduced significantly and native title proceedings would be simpler and faster to resolve.
The right to negotiate is the fifth area of consideration.
The procedural rights protected under the right to negotiate provisions of the Act are of significant value. The utilisation of these rights is the door for many Indigenous peoples’ participation and engagement in the economy, and provides the key to them taking part in the resources and other sectors.
The economic significance of these rights has been identified by the Attorney-General and the Minister for Families, Housing, Community Services and Indigenous Affairs as a reason for the recent discussion paper on how to improve the benefits that flow from agreements made through this system.
The right to negotiate which is triggered by having a native title claim registered, operates through the future acts part of the Native Title Act. The granting of procedural rights after registration recognises that the claimants have a prima facie case, that is, it is likely they are the traditional owners of country. However, pursuing a claim and negotiating an agreement using the right to negotiate are two are very different activities to undertake with potentially very different outcomes. Kevin Smith, the CEO of Queensland South Native Title Services stated:
The reality is that this current unprecedented resource sector boom presents an opportunity for a good number of clients to engage in the real economy for the first time and possibly only time. On the other hand, my clients are acutely aware that a native title determination application allows for the recognition of rights and interest to land and waters for the benefit of both current and future generations.
He highlighted the real conflict of duty for Indigenous peoples who are caught between prosecuting a claim to ensure that substantive rights and interests are recognised while seeking to secure procedural rights - to negotiate fair compensation for mining on their ancestral lands. The irony, somewhat perversely, is that under the current arrangements they must do the former to preserve the latter.
Tony McAvoy has similarly suggested that the two processes should be ‘de-coupled’. He suggests that the NNTT should become a ‘procedural rights oversight and management body’. The procedural rights would still be granted on the basis of passing the registration test, after which they could be a ‘native title procedural rights holder’. The claimants then have the option to indicate if they wished to apply for a native determination.
One benefit to the approach that McAvoy has cited is that if claimants could discontinue on the basis that they would retain procedural rights, a number would take that opportunity, reducing the applications before the Federal Court.
And finally, the sixth option, that is already available to us to enable a just and equitable native title system is the ability to negotiate Indigenous Land Use Agreements. These agreements are particularly important given that a significant flaw of the native title legislation is its lack of protection for commercial rights.
There is no doubt that sustainable economic development is essential for the well-being of Indigenous communities on Indigenous land. This is not just my view; this is the view of the majority of Indigenous people and traditional owners who responded to a national survey conducted in 2006 by the Human Rights Commission. But it is also the view of the Australian Government.
Indigenous Land Use Agreements provide Indigenous people with an opportunity to negotiate economic development outcomes and the support that is required to develop sustainable Indigenous communities. But also to ensure the development of capacity for future independence and self determination. However, in the context of enabling a just and equitable outcome, as Indigenous peoples we must have the capacity to negotiate as equal partners.
As the basic foundation, we as Indigenous stakeholders must be central participants in setting the development goals and agendas for our communities. The ultimate success of these goals is dependent on our active participation.
Secondly, we must be innovative in our approach to development on land and utilise all avenues of funding and support to ensure the most beneficial outcomes are achieved. This will be particularly important in light of the global economic challenges we face now and in the future. We will no longer be able to depend on the mining boom to fund essential services and basic human rights for Indigenous communities.
Thirdly, and as I touched on briefly earlier, Indigenous parties to agreements must have access to the necessary expertise required to negotiate the best agreement possible. A mining company would not come to the negotiating table without their economists, investment advisors, business managers, and contract lawyers to negotiate a settlement that would not provide the best protection of their interests. However, Indigenous peoples must rely on our under resourced Native Title Representative Bodies to provide us with advice on all of those things at the negotiating table. Apart from the obvious fact that NTRBs require a significant funding increase, an innovative response to this issue would be for the Government to establish and fund an expert register whereby Native Title Representative Bodies and native title claimants have access to the expertise they require to negotiate the best settlement possible.
This will require dedicated resources. However, with skilled negotiators and skilled, capable communities who know their rights, good agreements can be made.
If we are to evolve towards a just and equitable native title system, a path this Government has shown it’s willing to take, the native title system must entail less litigation and complex demands of continuous connection to land, and place emphasis on negotiating agreements with the claimants that result in sustainable social, cultural and economic benefits.
In an insightful critique of the native title process in Australia, Hal Wootten wrote
To leave the consequences of these policies to litigation in private actions based on existing rights, in courts designed to settle legal rights by an adversary system within a relatively homogenous community, is at once an insult to the Indigenous people and a prostitution of the courts.
With 15 years of native title behind us and very little evidence of any marked improvement in the lives of Indigenous Australians, we now have the benefit of learning from what has gone and learning from our past experience of engaging in this unique system.
The changes proposed in my talk today may require a lot of work, but they would result in a Native Title Act which would achieve what it originally set out to achieve – providing equitable treatment of Indigenous peoples’ native title rights in accordance with our inherent right to our lands.
We all have an opportunity right now to make the necessary change that is required to create a just and equitable native title system. And we all have a responsibility to maintain the momentum of the Apology, and work hard to achieve a native title system that is just and equitable for all parties. But particularly for our most disadvantaged, our Indigenous peoples.
So please remember, from self respect comes dignity, and from dignity comes hope.
 G Roche, Manager, Department
of Families, Housing, Community Services and Indigenous Affairs,
Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Australian Human Rights Commission, 11 September
 G Roche, Manager, Department of Families, Housing, Community Services and Indigenous Affairs, Correspondence to T Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Australian Human Rights Commission, 11 September 2008.
 Native Title Act, s 84.
 Native Title Act, s 84.
 see Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2002, Human Rights and Equal Opportunity Commission (2002),
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2005, Human Rights and Equal Opportunity Commission (2005) and
Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, Human Rights and Equal Opportunity Commission (2007).
 D Short, ‘The social construction of Indigenous `Native Title' land rights in Australia’, (2007), 55(6) Current Sociology 857, p 872 (original emphasis). At http: //csi.sagepub.com/cgi/reprint/55/6/857.pdf (viewed January 2009).
 See further, in relation to establishing causation under the Racial Discrimination Act 1975 (Cth), HREOC, An International Comparison of the Racial Discrimination Act 1975: Background Paper No 1 (2008), Chapter 8.
Workplace Relations Act 1996 (Cth), s 659(2)(f) and (h).
 See, eg, Bognar v Merck Sharp Dohme (Australia) Pty Ltd  FMCA 571, : ‘By virtue of s.664 of the WR Act, the respondent bears the onus of proving that it did not terminate the applicant’s employment for a prohibited reason, or for reasons that included a prohibited reason.’ See also Liquor, Hospitality Miscellaneous Union, Liquor & Hospitality Division, NSW Branch on behalf of its member, Wayne Roberts v Woonoona Bulli RSL Memorial Club Ltd  FCA 1460, : ‘In this proceeding it is thus not necessary for the Union to prove that Mr Roberts’ employment was terminated for the reason, or for reasons including the reason, that he refused to negotiate in connection with, make or sign an AWA. However, the Club will have established a defence to the Union’s application if it has proved that Mr Roberts’ employment was terminated for a reason or reasons that do not include a proscribed reason.’ See also Tandoegoak Anor v Marguerite Gerard Pty Ltd  FMCA 621, : ‘The Court is cognisant of the reverse onus of proof contained in section 664 of the Act.’ See also Abrahams v Qantas Airways Ltd  FMCA 634, .
 (2005) 145 FCR 422 at .
Native Title Act 1993 (Cth), preamble.
Native Title Act 1993 (Cth), ss 47to 47B.
 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).
 Note: The majority of traditional owner respondents to the 2006 HREOC survey agreed that economic development is important for their land. However, when asked to rank the most important uses for land, traditional owners supported ‘custodial responsibilities’ and ‘access to land’ before economic development.
 Cited in J Williams, ‘Confessions of a Native Title Judge: Reflections on the Role of Transitional Justice in the Transformation of Indigeneity.’ Land, Rights, Laws: Issues of Native Title, 3, (2008). 20 July 2008.